1

* THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT APPEAL No.45041 of 2016

% 12.12.2023

# The Superintendent of Police, Vizianagaram

District at Vizianagaram & 3 others …. Appellants

Versus

$ B.Sai Srinivasa Rao, S/o Rama Rao,

Occ: PC 1633 Marine Police Station,

Chinthapalli, Vizianagaram & another … Respondents

! Counsel for the Appellants : Sri G.V.S. Kishore Kumar, Learned

Government Pleader for Services-I,

GP [S]-I

! Counsel for the Respondents : Sri Bonu Rama Shankar Rao,

Learned Counsel for the

1

st

respondent.

< Gist:

> Head Note:

? Cases referred:

1 Nil

2

HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

WRIT APPEAL No.45041 of 2016

# The Superintendent of Police, Vizianagaram

District at Vizianagaram & 3 others …. Appellants

Versus

$ B.Sai Srinivasa Rao, S/o Rama Rao,

Occ: PC 1633 Marine Police Station,

Chinthapalli, Vizianagaram & another … Respondents

DATE OF JUDGMENT PRONOUNCED: 12.12.2023

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

1. Whether Reporters of Local Newspapers may

be allowed to see the Judgments? Yes/No

2. Whether the copies of Judgment may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

copy of the Judgment? Yes/No

_____________

G. NARENDAR, J

________________

NYAPATHY VIJAY, J

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HON’BLE SRI JUSTICE G. NARENDAR

AND

HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.45041 of 2016

ORDER: (Per Hon’ble Sri Justice G.Narendar)

Heard Sri G.V.S. Kishore Kumar, Learned Government Pleader

for Services-I, GP [S]-I, for the Petitioners and Sri Bonu Rama Shankar

Rao, Learned Counsel for the 1

st

respondent.

2. The present Writ Petition is preferred by the Superintendent of

Police, Vizianagaram District at Vizianagaram, the Deputy Inspector

General of Police, Visakhapatnam Range, Visakhapatnam, the Inspector

General of Police, North Coastal Zone, Andhra Pradesh, Visakhapatnam

and the State represented by the Principal Secretary, Home

Department.

3. The facts which are not in dispute are stated in a nut shell to the

extent as required for disposal of the Writ Petition.

4. It is not in dispute that the 1

st

respondent was working as Police

Constable since the year 1998. On 02.04.2005 the Station House

Officer, Neelakantapuram Police Station found that the 1

st

respondent

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was absent for duty; left the place without prior permission and the

same came to be entered in the General Diary. The 1

st

petitioner was

also informed about the same vide radio message dated 19.04.2005.

Such un-authorized absence of 1

st

respondent was continued till

23.04.2005 and as the period of 21 days had been completed in terms

of Standing Order 184 of the A.P. Police Administrative Manual, by a

declaration dated 28.04.2005 he was declared as deserter with effect

from 02.04.2005. Having acknowledged the desertion orders on

05.05.2005, the 1

st

respondent reported for duty on 06.05.2005 and he

had submitted his reply.

5. An enquiry came to be held and a punishment of stoppage of

P.P.I for 2 years with cumulative effect on future increments and

pension was awarded and the period between 02.04.2005 to

03.05.2005 was treated as “not on duty”. Aggrieved by the same, the

1

st

respondent preferred an appeal before the Appellate authority.

6. The Appellate authority while disposing of the appeal set aside

the penalty imposed by the District Superintendent and further directed

the District Superintendent to conduct proceedings afresh by

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considering the 1

st

respondent as a „deserter‟ and by treating the

period of absence as „desertion‟ and not as un-authorized absence.

7. On receipt of the same, the Competent Authority yet again

conducted an enquiry in accordance with Rule 20 of the A.P.C.C.A.

Rules, 1991 and yet again imposed the same penalty.

The 1

st

respondent yet again preferred an appeal and the Appellate

Authority rejected the same. Aggrieved thereby the 1

st

respondent

preferred O.A.No.5579 of 2012. The Tribunal after examining the

matter on merits formulated the following points:-

Point No.1: Whether the proceedings in Rc.No.871/A1/VZ/2010 dated

10.4.2012 of the 3

rd

respondent, Proc.C.No.35/OE/PR/2005 dated

10.1.2008 of the 1

st

respondent and rejection order in

Proc.Rc.No.134/Appeal/2008 dated 9.1.2009 of the 2

nd

respondent

are sustainable on law and on facts?

Point No.2: To what relief?

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8. Thereafter, the Tribunal by placing reliance on the ruling of the

Apex Court rendered in Chairman cum Managing Director, Coa l

India Limited and others vs. Ananta Saha and others

1

and more

particularly by placing reliance on Para 28 of the said ruling, proceeded

to hold that the act of the Competent Authority without framing fresh

issues, issuing show cause and following the due procedure under Rule

20 of A.P. Civil Service (CCA) Rules, 1991 the initiation of the second

enquiry was vitiated and accordingly was pleased to allow the O.A and

the period between 02.04.2005 to 03.05.2005 was directed to be

treated as eligible leave and the Tribunal was further pleased to grant

continuity of service with all consequential benefits, including the

seniority and promotion. Aggrieved thereby, petitioners i.e., the State

are before this Court.

9. It is canvassed by the Learned Government Pleader for

Services-I, GP [S]-I, that if the Tribunal was of the view that the

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2011 (5) SCC 142

7

penalty imposed was disproportionate or that the enquiry was vitiated

by non-observance of the Principles of Natural Justice; it could not

have set aside the enquiry in its entirety and ought to have limited the

same to set aside and remit the matter back to the Competent

Authority for consideration and disposal in accordance with law.

10. In that regard reliance is placed on the ruling rendered by the

Apex Court in Inspector of Panchayats and District Collector,

Salem vs. S.Arichandran and Others

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.

11. We have traversed the provisions of the Andhra Pradesh Civil

Services (Classification, Control and Appeal) Rules, 1991 (for short

‘the Rules’), more particularly, Rule 37 of the Rules and Standing

Orders 183 and 184, more particularly, Standing Order 184 of the

A.P. Police Administrative Manual which reads as under:-

12. We have also been taken through Rule 37 of the Rules, which

pertain to consideration of an appeal.

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2022 SCC OnLine SC 1282

8

Rule 37 of the Rules reads as under:-

37. (1 ) In the case of an appeal against an order of suspension, the

appellate authority shall consider whether in the light of the

provisions of rule 8 and having regard to the circumstances of the

case, the order of suspension is justified or not and confirm or revoke

the order accordingly.

(2) In the case of an appeal against an order imposing any of the

penalties specified in rule 9 or rule 10 or enhancing any penalty

imposed under the said rules, the appellate authority shall consider:-

(a) whether the procedure laid down in these rules has been

complied with and if not, whether such non-compliance has resulted

in the violation of any provisions of the Constitution of India or in

failure of justice;

(b) whether the findings of the disciplinary authority are warranted

by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is

adequate; inadequate, or severe and pass orders.

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced

the penalty or to any other authority with such direction as it may

deem fit in the circumstances of the case;

13. From a reading of the above provisions, more particularly,

Standing Order 184, it is apparent that the proceedings against a

deserter is permissible only after it is preceded by a declaration that

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the Officer is a deserter and that such declaration ought to be

communicated to the Officer by registered post. The said Standing

Order also makes an interesting reading, wherein the Officer is called

upon to join duty by reporting to the Superintendent of Police, District

Chief of Police/Deputy Commissioner of Police/Commandant. In fact, it

is also pertinent to note that the said Standing Order provides for

two (2) months period from the date of receipt of the declaration

enabling the alleged deserter to report to duty. On reporting to duty,

it mandates that a Charge shall be framed and the deserter shall be

placed under suspension.

14. Be that as it may. The fact remains that on remand, the

Competent Authority without following the rigor of Rule 20 has

proceeded to re-enquire on the said Charges and without issuing any

show cause notice etc., which the Apex Court has found to be as illegal

in Chairman cum Managing Director, Coa l India Limited and

others’ case (referred (1) supra). In the said case, the Hon‟ble Apex

Court has been pleased to hold that where an enquiry report and

penalty is set aside, then the rigor of Rule 20 i.e., complying with the

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procedures of issuing Articles of Charges etc., need to be complied

with. The quashing of the enquiry report and the penalty also results in

the lapse of the Charges framed earlier. On the said consideration, the

Apex Court was pleased to grant relief to the parties therein.

15. The Tribunal, taking note of the same and also taking note of

the fact that mandate of Rule 20 had not been complied with and de

novo enquiry or fresh enquiry was conducted on the basis of earlier

Charges, deemed it fit and accordingly set aside the same.

16. The answer to the Writ Petition is not far to seek .

A consideration of Rule 37 of the Rules, as extracted supra, leaves no

doubt in the mind of this Court that even the order of remand directing

a fresh enquiry by the Appellate Authority itself was vitiated. In view of

Rule 37(2)(c)(ii) of the Rules, which is extracted above, if the Appellate

Authority is of the view that of the Penalties specified in the Clauses of

Rule 9 and an enquiry under Rule 20 has already been held in this

case, the Appellate Authority shall subject to the provisions of

Rule 25 itself hold that such an enquiry be held in accordance with

Rule 20. Thereafter, on consideration of the proceedings of such

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enquiry, make such an order as it deems fit. On a reading of the

above, it is apparent that the compliance with the provisions of

Rule 20 is mandatory and the other alternative vested in the Appellate

authority is to conduct enquiry by itself.

17. In the instant case, the facts on hand are not in dispute that the

Appellate Authority had directed a fresh enquiry by setting aside the

enquiry and the penalty imposed by the competent authority. If that be

the case, the option before the Appellate Authority would have been to

hold the enquiry by itself or direct the Competent Authority to hold the

enquiry by complying with the mandate of Rule 20.

18. In the case on hand it is not in dispute that the mandate of

Rule 20 has been given a go-bye by the Competent Authority.

19. In that view of the matter, we do not see any merits, which

warrant interference in the orders of the Tribunal.

20. As regards the reliance of the ruling, it is apparent that this

Court would also be required to look into the heinous nature of the

misconduct or gravity of the misconduct. In the instant case, one of

the charges against the 1

st

respondent is unauthorized absence.

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He was previously penalized for unauthorized absence without leave or

permission i.e., on 02.02.2002; from 18.03.2005 to 25.03.2005 and

from 26.03.2005 and 31.03.2005 i.e., an un-authorized absence in the

year 2002; un-authorized absence of about 14 days in the year

2005 followed by 14 days immediately preceding the period of absence

under the first part of the Charges.

21. The law regarding „remand‟ has been crystallized by the Hon‟ble

Apex Court in The State of Uttar Pradesh & Ors., vs. Prabhat

Kumar

3

, the facts, recorded by the Hon‟ble Apex Court can be found

in Para 6, are as follows:-

“6. The allegation against the respondent is of absence from duty

for more than 327 days which was made the basis for issuing the charge-

sheet. Even after the charge-sheet was served, the respondent failed to

participate in the departmental proceedings or to join duties. This Court in

Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 held

that once the Court set aside an order of punishment on the ground that the

enquiry was not properly conducted, the Court should not preclude the

employer from holding the inquiry in accordance with law. It must remit the

case concerned to the disciplinary authority to conduct the enquiry from the

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2022 LiveLaw (SC 736)

13

point that it stood vitiated, and to conclude the same in accordance with

law. This Court held as under:

"13. It is a settled legal proposition that once the court sets aside

an order of punishment on the ground that the enquiry was not

properly conducted, the court should not severely preclude the

employer from holding the inquiry in accordance with law. It must

remit the case concerned to the disciplinary authority to conduct

the enquiry from the point that it stood vitiated, and to conclude

the same in accordance with law. However, resorting to such a

course depends upon the gravity of delinquency involved. Thus,

the court must examine the magnitude of misconduct alleged

against the delinquent employee. It is in view of this that

courts/tribunals are not competent to quash the charge-sheet and

related disciplinary proceedings before the same are concluded on

the aforementioned grounds.” [emphasis supplied by this Court].

22. The allegations of misconduct alleged against the

1

st

respondent, keeping in view the fact that he a member of a

disciplinary force would assume some amount of gravity as such

conduct of unauthorized absence, if left unchecked, would result in

harming the discipline amongst the members of the force, in our

considered opinion, is not of such gravity nor borders on heinousness.

23. We are of the considered opinion that despite such gravity,

this fact that the Civil Servant is to be made to suffer a penalty at this

point of time, that is, after nearly 18 years since the saga started is by

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itself a factor, which requires consideration. We are of the considered

opinion that this long passage of time and the sufferance which this

long standing litigation has caused to the respondent is sufficient

punishment by itself.

24. In that view of the matter also, we are of the opinion that

though we have gone through the law laid down by the Apex Court,

the facts and circumstances involved in the case on hand do not

warrant any other view than that adopted by the Tribunal.

25. Accordingly, the Writ Petition stands rejected. There shall be no

order as to costs. As a sequel, pending applications, if any, shall stand

closed.

_____________

G. NARENDAR, J

________________

NYAPATHY VIJAY, J

Date: 12.12.2023

Note: L.R copy be marked

(B/o)

IS

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THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.45041 of 2016

Date: 12.12.2023

Note: L.R copy be marked

(B/o)

IS