mere failure to display proper anticipation of escaping of prisoner from custody in transport , not amounts to negligence or irresponsiblity or lack of devotion of work = the respondent was disabled from guarding the remand prisoner properly as the entrustment of additional duty of handling the battery evidently made him board the crowded bus from the rear side. - Department has not attributed any complicity with the remand prisoner to facilitate her escape or any mala fide intention on the part of the respondent in this regard.Therefore, in our opinion, at best, the respondent can be said to have failed to display proper anticipation and by no means he can be said to be negligent or irresponsible or displayed lack of devotion to duty amounting to misconduct warranting levy of any punishment. = In view of the interim order of this Court suspending the operation of the order of the Tribunal all through the pendency of the writ petition, the respondent could not reap the fruits of his success before the Tribunal. In our opinion, the maxim actus curiae neminem gravabit an act of the Court shall prejudice no man, is squarely attracted to the facts of this case. Therefore, the respondent is entitled to be compensated for the sufferings he and his family members have undergone at least from the time the respondent succeeded before the Tribunal.- Accordingly, the writ petition is dismissed in the following terms: (i) The order of the Tribunal is confirmed; (ii) The respondent shall be forthwith reinstated into service with continuity of service and other attendant benefits, including payment of 50% of basic pay from the date of removal as directed by the Tribunal; (iii) The petitioners shall promote the respondent according to his entitlement had he been continued in service, and pay the salary along with the attendant benefits and back wages attached to the promotional post with effect from the date of his promotion; (iv) The petitioners shall pay interest at the rate of 9% per annum to the respondent on the arrears of salary and other monetary benefits which fell due on the date of disposal of the O.A. by the Tribunal till the date of payment. (v) The respondent is awarded costs of Rs.25,000/- (Rupees Twenty Five Thousand only)

THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONBLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI                       

Writ Petition No.10333 of 2004

15-12-2017

Government of Andhra Pradesh Rep. by its Secretary Home Department Secretariat, Hyderabad and others   Petitioners 

M.D. Wahajuddin  Respondent   

COUNSEL FOR THE PETITIONERS: G.P. for Services (TS)     

COUNSEL FOR THE RESPONDENT: Mr.J.Sudheer         


THE COURT MADE THE FOLLOWING:       

JUDGMENT: (per the Honble Sri Justice C.V. Nagarjuna Reddy) 

        A victim of fate or that of the circumstances, the respondent,
who had a smooth sail as a Police Constable, his whole world
turned topsy-turvy, overnight.  Unsuspecting that 06.12.1989
would be the day, which would push him along with his family into
the dark days, he went on his duty as usual.  As his ill fate would
have it, he was entrusted with the work of escorting a young but
wily under-trial prisoner, by name, Gandikota Lachamma, W/o.
Venkataiah, aged 25 years, from Jangaon Police Station to Central
Prison, Warangal, along with another Police Constable (P.C.502).
2.      The respondent along with P.C.502 took the remand prisoner
from Jangaon Police Station to Warangal.  After alighting at
Hanamkonda, they have boarded the local bus to reach the Central
Prison.  Before they reached the destination, the remand prisoner
has quietly given a slip and escaped from the scene.  Panicked, the
respondent made a frantic search for tracing out the prisoner but in
vain.  Twenty-four hours thereafter, not left with any other option,
he lodged a report at the Hanamkonda Police Station.  Registration
of First Information Report notwithstanding, the prisoner was not
to be traced.  P.C. No.502 (since deceased) nowhere in picture
from 06.12.1989 reported back to duty only on 09.12.1989.
3.      Departmental proceedings were initiated against the
respondent for his alleged lethargic attitude, gross negligence and
irresponsible behaviour.  By order dt.18.12.1989 petitioner No.4
has kept the respondent under suspension.  On 26.05.1990, a single
charge was framed and an enquiry officer was appointed for
holding enquiry.  During the enquiry, the Presenting Officer has
produced seven witnesses  P.Ws.1 to 7 on the departments side.
The respondent  delinquent has produced D.Ws.1 to 3 on his
side.
4.      The defence of the respondent is briefly stated hereunder.
When he was instructed to escort the woman prisoner, the
respondent has expressed that it is desirable to have a woman
constable as escort and handcuffs may be provided to secure the
prisoner during the transit, but, however, his request was not
heeded to and as a result the prisoner had to be escorted by himself
and PC 502, another Male Constable, without handcuffs.  That as
per the instructions of the Head Constable (HC 468)  P. Jayapal
Reddy, a battery was handed over to the respondent for handing
over the same to the Inspector (Communications), Warnagal.  That
in order to handover the said battery, they alighted the bus at RTC
Cross Road at Hanmakonda, that from there the respondent went 
to District Police Office (DPO), Warangal, to handover the battery
to the Inspector (Communications) Warangal and that meanwhile
PC.502 took the prisoner to local bus stop at Petrol Bunk.  That by
the time he returned after handing over the battery, PC.502
boarded the local bus with the prisoner from front door, that as he
reached the bus stop at the last moment and the bus was moving,
he had to board the same from the rear side, and that as the bus
was overcrowded, he was unable to go to the front side where PC
502 along with the woman prisoner were staying.  When the bus
stopped at the Thousand Pillar Temple, PC 502 informed him
about the escape of the prisoner.   It is his further plea that the
Police concerned have acted contrary to the established practice of
entrusting the woman prisoner to male constables for escort duty
without even providing handcuffs and that added to this violation,
the respondent was burdened with an extra duty of carrying a
battery, but for which there would not have been a possibility of
the respondent being away from the prisoner while travelling in the
bus.
5.      Though P.W.1  H.C. 468 denied the stand of the
respondent that the latter has made a request to send a woman
escort or provide with handcuffs and also the handing over of
battery, on appreciation of oral and documentary evidence, the
enquiry officer has rendered a clear finding to the effect that the
respondent deserves a benefit of doubt on the above aspect.  The
enquiry officer also while commenting on the conduct of PC.502 in
not reporting the matter to the Police Station or trying to trace the
prisoner, rendered a finding that the respondent made efforts to
trace the woman prisoner.  On a holistic appreciation of the
evidence, the enquiry officer observed that despite the evidence
adduced by the Department tending to prove the charge levelled
against the respondent, he is left with no option other than giving
benefit of doubt to the respondent.  The only observation made
against the respondent by the enquiry officer is that though the bus
was overcrowded, it is the primary duty of the respondent to meet
PC 502 and the lady prisoner in the bus and escort her in proper
way.  Based on this observation, the enquiry officer held that the
charge against the respondent was partly proved beyond reasonable
doubt.
6.      On consideration of the report, petitioner No.4 passed order
on 18.8.1992.  In his order he has stated that after agreeing with the
findings of the enquiry officer, he has sent a copy of the enquiry
report (termed as Minutes) drawn by the enquiry officer and that
he has considered the representation received from the respondent.
As regards the plea of the respondent that no woman Police
Constable was deputed, the same was rejected by observing that
woman constable will be deputed wherever they are available.
With respect to handcuffs, respondent No.4 observed that they are
not necessary to escort an ordinary woman criminal.  Considering
the plea that the respondent ought not to have been given any
other job, petitioner No.4 held that the prisoner had not escaped
during the period when the respondent went to the DPO at
Warangal to handover the battery, but she has escaped when the
respondent was present in the bus.  While holding that the
respondent along with PC 502 (who was no more) are responsible
for the escape of the prisoner, petitioner No.4 has observed that
Police Constables who cannot escort even an ordinary woman 
prisoner is of no use in Police Department and accordingly he
removed the respondent from service by treating the suspension
period from 27.12.1989 to 31.7.1991 as not on duty.
7.      While considering the appeal filed by the respondent against
the order of his removal, petitioner No.3 repelled the defence of
the respondent by observing that the plea taken by the respondent
that the woman prisoner had made her escape in City Bus, is not
tenable as it is only an afterthought, since the respondent while on
escort duty of an under trial prisoner had no business to break the
journey from Jangaon Police Station to Central Prison, Warangal,
even if he had any other work and that nothing prevented him
from handing over the battery after handing over the prisoner at
the Prison and he accordingly rejected the appeal.
8.      In his order dt.30.7.1993, in the revision filed by the
respondent, petitioner No.2 held that the evidence recorded in the
oral enquiry clearly established that the respondent did not either
ask to be assisted with the services of a woman Police Constable or
with handcuffs and that no other duty, like carrying a battery, was
allotted to him. He has also observed that the possibility of ulterior
motive on the part of the respondent in raising the plea of carrying
a battery, without being assigned with any such duty while being
engaged on escort duty, is clearly perceived.  As regards the plea of
the respondent that he could not board the bus along with PC 502
and the woman prisoner, as he had to entrust the battery in the
DPO, Warangal, petitioner No.2 has adopted the same reasoning 
as that of petitioner No.3.  Accordingly, petitioner No.2 has
dismissed the revision petition.  Assailing these orders, the
respondent has filed O.A. No.6900 of 1993 before the Andhra
Pradesh Administrative Tribunal, Hyderabad.
9.      On a detailed consideration of the case, the Tribunal held
that in the light of the finding of the enquiry officer that benefit of
doubt has to be given to the respondent, he cannot be held guilty
of negligence of duty and consequently he was not liable to be
awarded with the penalty of removal from service.  While holding
that the respondent is entitled to all the consequential benefits,
including salary and also other attendant benefits like application of
revision of pay scales etc., for the period of his absence from
service, the Tribunal has directed payment of 50% of his basic pay
with other allowances from the date of his removal from service,
and to reinstate him into duty within seven days from the date of
receipt of the order.  This order has been challenged by the
petitioners in the present writ petition.
10.     As far back as 23.06.2004, a Division Bench of this Court
while admitting the writ petition, granted interim suspension which
has been continuing all these years, and as a result of the interim
order the respondent is not reinstated.
11.     We have heard the learned Government Pleader for Services
(TS) and Mr. J. Sudheer, learned counsel for the respondent.
12.     We would like to consider the orders passed by petitioner
Nos.4, 3 and 2 separately in sequence with reference to the enquiry
report.  A perusal of the order of removal passed by petitioner
No.4 would show that he has agreed with the findings of the
inquiry officer.  While not specifically rejecting the stand of the
respondent on three vital aspects, namely, (i) that in spite of his
request, a woman constable was not provided as escort; (ii)
handcuffs were not provided and (iii) entrustment of additional
work of carrying battery, petitioner No.4 tried to justify each of
these aspects.  According to him, two Police Constables are enough
to escort a very normal woman accused and to escort an ordinary
woman criminal handcuffs are also not necessary.  As regards the
entrustment of the duty of carrying a battery, as noted earlier, he
has opined that the escape has not taken place during his absence
in the course of entrustment of battery.
13.     In our opinion, the approach of petitioner No.4 is wholly
unrealistic.  Being an officer holding the position of Superintendent
of Police, he failed to understand that howsoever strong the male
police escorts may be, it is wholly unsafe to entrust a lady prisoner
to the custody of male constables as they were not expected to
handle the former physically.  Obviously faced with this delicacy,
the respondent appeared to have requested for either providing
with a woman escort constable or at least with handcuffs, so that
the possibility of the prisoner escaping could be avoided.  When
male constables stand as escort, even if they find a woman prisoner
escaping they are not expected to prevent her physically from
escaping.  Similarly, if handcuffs had been provided, the prisoner
would not have escaped.  The observation that only when woman
constable is available she will be sent as an escort, defies any logic
or reasoning.  The administration cannot be absolved of its
obligation, merely because a Woman Constable was not available.
Petitioner No.4 has not examined the problem with the sensitivity
which the situation demanded.  This lack of insensitivity is reflected
from the observation that the Police Constables who cannot escort
even an ordinary woman prisoner are of no use in the Police
Department.
14.     A perusal of the record shows that the woman prisoner is not
an ordinary prisoner.  She was caught red-handed while stealing
cash of Rs.604/- from the bag of an RTC Conductor while he was
on duty on 04.12.1989 for which Crime No.189/89 for the offence
under Section 379 IPC, at Police Station, Jangaon, was registered
and she was remanded by the Judicial Magistrate of First Class,
Jangaon, in connection with which she was being escorted from
Jangaon Police Station to Warangal Central Prison. It is thus
obvious from these facts that the under trial prisoner appeared to
be an expert in committing thefts while travelling in buses.  Such a
person is expected to have perfected the art of easily escaping while
travelling in buses.  Despite this fact, the remand prisoner was
treated as an ordinary prisoner and neither a woman escort was
provided, nor at least hand cuffs were made available to the two
male Police Constables sent on escort duty.
15.     In our opinion, it is the Police at Jangaon Police Station, who
are primarily negligent in handling the woman prisoner.  It is a
matter of surprise that petitioner No.4 instead of taking action
against the persons at the Police Station for their negligence was
uncharitable in condemning the respondent.  The approach of
petitioner No.4 in dealing with the plea of the respondent
regarding the entrustment of another duty is also wholly unfair.
When a constable is entrusted with the duty of escorting a prisoner,
it is inconceivable that he was asked to handle another job
simultaneously.  Here again, negligence on the part of the persons
at the helm of affairs in Jangaon Police Station is writ large.
Instead of reaslizing the fundamental flaw in the approach of the
Police at Jangaon Police Station in entrusting an additional duty
(indeed it is a heavy burden), to the respondent, petitioner No.4
has chosen an easy route in pointing out that the escape has not
taken place during the absence of the respondent.  This finding
betrays lack of comprehension on the part of petitioner No.4.  It is
the stand of the respondent, which is virtually accepted by the
enquiry officer, that because of the entrustment of the additional
duty, he had to board a moving local bus and as the bus was
overcrowded, he could not get into the bus through front door,
through which PC 502 along with the remand prisoner entered the
bus and that because of the said reason he could not reach the
front portion where the other Constable along with the prisoner
were staying during the travelling. But for the entrustment of the
additional duty, such a situation would not have developed at all.
Therefore, petitioner No.4 has failed to examine the case from a
proper and correct perspective and made a wholly light hearted
approach in rendering the findings oblivious of the ground realities
and the facts and circumstances.
16.     Coming to the order passed by respondent No.3, his finding
that the plea of the respondent that the woman prisoner had
escaped was an afterthought is contrary to the findings and
conclusions of the enquiry officer.  He has ignored the fact that the
disciplinary authority has agreed with the findings of the enquiry
officer.  His reasoning that the respondent has no business to break
the journey from Jangaon Police Station to Central Prison,
Warangal, also overlooks the conduct of the Police at Jangaon
Police Station in entrusting the additional duty to the respondent
while he was on escort duty. Instead of addressing this aspect,
petitioner No.3 has added his own perceptive to the issue which, in
our opinion, is wholly unsustainable.
17.     As regards the order of petitioner No.2, he far too exceeded
his jurisdiction in arriving at his own conclusion based on evidence
contrary to the findings of the enquiry officer both on the aspects
of the request of the respondent to send a woman escort, providing
handcuffs and entrustment of additional duty of carrying the
battery.  Being the revisional authority, it does not fall within its
jurisdiction to reappreciate the evidence and differ with the
findings of the enquiry officer, though the disciplinary authority has
accepted the findings of the enquiry officer.
18.     As rightly held by the Tribunal when the respondents
request for providing a woman escort or at least handcuffs was
rejected, and added to that he was entrusted with the additional
responsibility of carrying a battery which was wholly unwarranted,
he cannot be held guilty of negligence of duty.
19.     It is trite that negligence connotes, carelessness, laxity,
irresponsibility, breach of duty etc.  Ones failure to make proper
anticipation of an event cannot be termed as negligence.  Every act
of lack of anticipation cannot be perceived as negligence, for, in a
given circumstance, if a person is disabled from acting with
diligence required to handle a situation, he cannot be called
negligent.
20.     Similarly every act of negligence does not constitute
misconduct.  The Strouds Judicial Dictionary described
misconduct as misconduct arising from ill motive, acts of
negligence, errors of judgment, or innocent mistake, do not
constitute such misconduct (emphasis added).  After referring to
and relying upon the judgments in Disciplinary Authority-cum-Regl.
Manager v. Nikunja Bihari Patnaik , Government of Tamil Nadu v. K.N.
Ramamurthy , Inspector Prem Chand v. Govt. of NCT of Delhi  and SBI v.
S.N. Goyal , the Supreme Court in Ravi Yashwant Bhoir v.  Collector
held that mere error of judgment resulting in doing of negligent act
does not amount to misconduct.  The Court further held:
     Further, the expression misconduct has to be construed and understood in
reference to the subject-matter and context wherein the term occurs taking into consideration
the scope and object of the statute which is being construed. Misconduct is to be measured in
the terms of the nature of misconduct and it should be viewed with the consequences of
misconduct as to whether it has been detrimental to the public interest.

21.     On the admitted facts of the present case, the respondent
was disabled from guarding the remand prisoner properly as the
entrustment of additional duty of handling the battery evidently
made him board the crowded bus from the rear side.  The
respondent does not appear to have anticipated the possibility of
the woman prisoner escaping when another male constable on  
escort duty was accompanying her.  Therefore, in our opinion, at
best, the respondent can be said to have failed to display proper
anticipation and by no means he can be said to be negligent or
irresponsible or displayed lack of devotion to duty amounting to
misconduct warranting levy of any punishment.  It is also worthy to
note that the Department has not attributed any complicity with
the remand prisoner to facilitate her escape or any mala fide
intention on the part of the respondent in this regard.
22.     This leaves us with one final question, i.e., whether mere
dismissal of the writ petition filed by the State would serve the ends
of justice?  Our answer to this question is an emphatic No.
From the record it is seen that when the order of removal was
passed, the respondent was about 32 years of age, at the prime of
his career and life.  It took a decade for him to succeed before the
Tribunal.  The State has taken almost two years to file the present
writ petition and a non-speaking interim suspension order of this
Court passed on 23.06.2004 continued to remain in force till today.
The cumulative effect of all this proved disastrous for the
respondent and his family.  For the last 25 years the respondent is
out of service.  Even if he is reinstated now, he will be reaching the
age of superannuation in a couple of years.  The sufferings the
respondent and his family members might have undergone are 
unfathomable.  At the prime of his life, the respondent was
deprived of his employment and his family members, of an
otherwise comfortable living with proper educational, health and
other basic needs of life.  When we put a question to ourselves as
to whether anyone can bring back the precious time which the
respondent and his family members have lost and undo the
sufferings they have undergone, our answer is an obvious No.
The State is responsible to a large extent for the grave injustice
perpetrated on the respondent and his family.  Even if the
disciplinary authority was indifferent in handing out the removal
order, and if not the appellate authority, at least the revisional
authority should have displayed sobriety by interfering with the
extreme punishment and exonerating him, or at least by imposing
some minor penalty.  At least after the respondent succeeded
before the Tribunal, wisdom should have dawn on the State and its
functionaries.  Without realizing the vexatious nature of the
litigation and the futility of pursuing such litigation, they went
ahead by filing the writ petition and securing an order of interim
suspension, denying reinstatement to the respondent.  Had the
functionaries of the State at the helm of affairs not viewed the
respondent as an adversary - in the sense that two private parties to
a litigation treat each other, the owes of the respondent and his
family would have ended at least in the year 2002 after dismissal of
the case by the Tribunal.  But, that was not to be.  In view of the
interim order of this Court suspending the operation of the order
of the Tribunal all through the pendency of the writ petition, the
respondent could not reap the fruits of his success before the
Tribunal.  In our opinion, the maxim actus curiae neminem gravabit 
an act of the Court shall prejudice no man, is squarely attracted to
the facts of this case.  Therefore, the respondent is entitled to be
compensated for the sufferings he and his family members have
undergone at least from the time the respondent succeeded before
the Tribunal.
23.     Accordingly, the writ petition is dismissed in the following
terms:
(i)     The order of the Tribunal is confirmed;
(ii)    The respondent shall be forthwith reinstated into
service with continuity of service and other attendant
benefits, including payment of 50% of basic pay from
the date of removal as directed by the Tribunal;
(iii)   The petitioners shall promote the respondent according
to his entitlement had he been continued in service, and
pay the salary along with the attendant benefits and
back wages attached to the promotional post with
effect from the date of his promotion;
(iv)    The petitioners shall pay interest at the rate of 9% per
annum to the respondent on the arrears of salary and
other monetary benefits which fell due on the date of
disposal of the O.A. by the Tribunal till the date of
payment. 
(v)     The respondent is awarded costs of Rs.25,000/-
(Rupees Twenty Five Thousand only).
     The petitioners shall complete the entire exercise
referred to in the aforementioned paragraph within two
months from the date of receipt of this order.
     As a sequel to dismissal of the writ petition, interim
order dt.23.06.2004 passed in W.P.M.P. No.13113 of 2004 
shall stand vacated and the said application shall stand
sposed of as infructuous.
__________________________   
C.V. NAGARJUNA REDDY, J     
_____________________________   
KONGARA VIJAYA LAKSHMI, J     
15-12-2017

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