THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.14548 of 2016
ORDER:
The present Writ Petition is filed under Article 226 of Constitution of India for the following relief/s:
".....to issue a Writ, Order or direction more in the nature of Mandamus declaring the orders passed by the 2nd Respondent in Proceedings No.SKU/Estt/E1/2015 dated 24.3.2016 in imposing the penalty of dismissal from service is illegal, arbitrary and in violation of Articles 14, 16, 21 and 311 (2) of the Constitution of India and consequently declare that the Petitioner is entitled to continue in service without there being any dismissal from the service with all consequential benefits and to pass such other order or orders.....
2. Heard learned counsel for the petitioner and Government Pleader for Higher Education.
3. The petitioner was initially appointed as Attender on 01.04.1984, subsequently he was promoted as Junior Assistant in the year 1990, Senior Assistant in the year 2008 and again promoted as Superintendent on 01.07.2013. While he was discharging his duties as Superintendent, the petitioner and other five people were kept under suspension on 13.11.2014 by the 1st respondent-University on the ground that they have committed some financial irregularities and diversion of funds of the University. On the same day a five-men-committee was constituted for investigation and the committee has submitted its report on 26.12.2014, came to prima-facie conclusion that the petitioner and others have diverted an amount of Rs.3,07,04,826/- from 17.05.2008 to 06.11.2014 to fourteen accounts and specific allegation on the petitioner that he has diverted an amount of Rs.43,24,588/-. A charge memo was issued on 03.02.2015 framing 7 charges against the petitioner and the petitioner has submitted his explanation on the same day denying the charges. Having not satisfied the same the 2nd respondent appointed enquiry authority of 3-men-committee, after completion of enquiry on 30.04.2015, the committee submitted its report stating that four charges were proved. On 24.03.2016, an order came to be passed by the 2nd respondent dismissing the services of the petitioner.
4. Aggrieved by the said dismissal order, the present Writ Petition came to be filed. Learned Counsel for the petitioner would submit that charge itself is not properly framed and the said charge was framed with predetermined mind and the charge memo has no characteristics of the charge. The enquiry is also enunciated as no proper enquiry was conducted as contemplated under the rules and prayed to set aside the dismissal order.
5. Learned counsel for the respondent would submit that a regular enquiry was conducted on 30.04.2015 and a charge memo was issued. There is no deviation from the procedure in conducting the enquiry, hence, prayed to dismiss the writ petition.
6. In view of the above, as seen from the charges there are no characteristics of charge and the charge sheet itself shows that it was passed on a predetermined mind which amounts to a final decision. The petitioner was relied on the judgment of the Hon'ble Apex Court in Oryx Fisheries Private Limited Vs. Union of India and others 1 , the relevant paragraphs of the judgment is hereby extracted:
It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show- cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.1
2010 13 SCC 427
7. In the similar manner, other charges have been framed two of them are extracted hereunder:
It is also established that Sri K. Seshaiah, Superintendent has intentionally involved with a fraudulent motive of illegal diversion of the university funds into various unauthorized accounts including his own and his wife Smt. K. Bhagya Lakshmi, and in withdrawing of huge amounts from university towards payment of DA arrears, PRC arrears, IR, Incremental arrears and other allowances payable to the employees/ pensioners and either credited lesser amounts or failed to credit any amount to the concerned.
It is established that Sri K. Seshaiah, Superintendent has involved in embezzlement of University funds into the Bank Accounts of himself and his wife to the tune of Rs.12,50,858/- during the period from 30.09.2008 to 07.11.2014 as per the details enclosed herewith in Annexure. All the amounts referred above were transferred to the said accounts from the university account.
8. The charge must assume each of the allegations made in the Charge sheet to be factually correct and examine ingredients of the offence without adding or subtracting anything there from. The charge itself shows that the petitioner has committed irregularities. The charges framed manifest that as if the case has been proved which is no short of the final proceedings and the charge sheet itself shows that the petitioner has committed an offence. That the enquiry report also does not disclose that any opportunity was given to the petitioner for cross examination of the witnesses, though, strictly Indian Evidence Act is applicable. The respondents herein have not followed the procedure for conducting enquiry, hence the charge and enquiry itself vitiated. In view of the same, this Court is inclined to set aside the impugned order and remand back to the Enquiry Authority to conduct enquiry as per the procedure of law by framing proper charge and calling explanation by following due procedure of law.
9. With the above direction, the Writ petition is disposed of. However, no costs.
Miscellaneous Petitions pending, if any, shall stand closed.
_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 01-12-2022 Harin THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 177 W.P.No. 14548 OF 2016 Date: 01-12-2022 Harin