HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.12656 of 2013
ORDER :
This petition is filed under Article 226 of the Constitution of India claiming the following relief:-
"to issue a writ order or direction more particularly one in the nature of WRIT OF CERTIORARI, to call for the records relating to the impugned order passed by the 1st respondent in Procs.No. 4131/CRD/SPM(DM)/278/2012, dated 28.09.2012 confirming the orders passed by the 2nd respondent dated 16.03.2012 vide Procs.R.C.No.D4/141/2011 and to quash the same as being illegal, arbitrary and to grant such other relief or reliefs...."
2. The case of the petitioner is that he was joined as Technical Assistant in Racharla Mandal on contract basis under Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) on 23.05.2009. Since then he has been discharging his duties with utmost satisfaction of all his superiors and there are no complaints or adverse remarks against him during his tenure of service. However, the 2nd respondent issued a show cause notice bearing Rc.No.D4/141/2011, dated 14.03.2011 alleging that in the social audit conducted from 11.12.2010 to 23.12.2010, the petitioner has committed certain irregularities in maintaining records and thereby misappropriated an amount of Rs.29,705/- and Rs.5,33,120/- along with another Field Assistant viz Mr. V.Keshav and Technical Assistant B.Kishore and called for his explanation. Thereafter the petitioner has submitted his explanation by duly enclosing all the relevant documents stating that entire work has been done by engaging 2 the labourers and the amounts were credited into the accounts of the beneficiaries through the concerned post office. It is relevant to state that the concerned coolies who attended the work also submitted a letter to the 2nd respondent stating that they were engaged as coolies for the above said work and the amounts were paid to them.
It is also stated that the petitioner has not committed any mismanagement or misappropriate of funds and also two years were lapsed after completion of the work during which period heavy rain fall was recorded at 1200 mm and due to Jal and Laila cyclones the agricultural lands were totally damaged and the ponds were destroyed due to which the agricultural lands were covered with sand and as a matter of fact the farm pond works and disilting works were also damaged due to heavy sand coverage due to the said rain fall. It is stated that the second term social audit was conducted from 11.12.2010 to 23.12.2010 as per the measurements by the social audit team it was taken as 9.60x9.80x0.30=28.224 M3 but as per the M-Book it is recorded as 9.60x9.50x0.78=71.02 M3 as per the said calculation the social audit team placed allegation against the petitioner. It is stayed that the petitioner placed all the material before the social audit team as well as project director and with the appeal but the authorities without considering the records made the petitioner responsible for the natural calamities. A Circular is issued vide No.653/EGS/ PM(Q.C)/2008, dated 05.04.2010 to maintain the tractor watch book, but it is specifically mentioned that the petitioner has 3 not maintained the tractor watch b ook and in fact till the date of receiving circular nobody maintained the same and they have entered the details in the M.Book.
It is further stated that the 2nd respondent without considering the explanation of the petitioner and without affording any opportunity to him, issued orders in RC No.D4/141/2011, dated 16.03.2012 removing the petitioner from service and ordered for recovery of the amount of Rs.1,62,986/- without even ascertaining as to how the said amount was said to have been misappropriated. Being aggrieved by the order dated 16.3.2012, the petitioner preferred appeal before the 1st respondent on 19.04.2012. However, the 1st respondent without conducting any enquiry and without recording the statements of the villagers who have submitted their requisition stating that the petitioner has not involved in any sort of misappropriation, simply relying on the findings fothe 2nd respondent came to a wrong conclusion, passed the impugned order vide Proc.No.4131/ CRD/ SPM(DM)/278/2012, dated 28.09.2012.
It is stated that as per the National Rural Employment Guarantee Act, 2005, the social audit has to be conducted as provided under Section 17, which reads as under: "17. Social audit of work by Gram Sabha. --
(1) The Gram Sabha shall monitor the execution of works within the Gram Panchayat.
(2) The Gram Sabha shall conduct regular social audits of all the projects under the Scheme taken up within the Gram Panchayat. (3) The Gram Panchayat shall make available all relevant documents including the muster rolls, bills, vouchers, measurement books, copies of 4 sanction orders and other connected books of account and papers to the Gram Sabha for the purpose of conducting the social audit."
It is stated that the PIDP works were allotted for the years 2009-2010 and the social audit was conducted from 11.12.2010 to 23.12.2010. It is relevant to mention here that while conducting social audit as per Sub Section (3) to Section 17, the relevant records submitted by the Gram Panchayat have to be scrutinized but in this case, it reveals that no sort of verification nor scrutiny has been done which conclusion can be drawn by observing the records from show cause notice to impugned order and it is a fact that the petitioner has submitted all relevant records with proofs at the time of social audit and at the time of reply to show cause notice and along with the appeal, but the respondents intentionally issued the impugned order terminating the services of the petitioner. Hence, the present writ petition.
3. The 2nd respondent filed counter affidavit denying the averments in the affidavit filed in support of the writ petition stating that the social Audit Team inspected the works in Racharla Mandal on 01.12.2010 to 23.12.2010 and found that some irregularities were committed by the petitioner. On 23.12.2010, public hearing was conducted in the Mandal Office, Racherla in the presence of public representatives, villagers, wage seekers, Media and presiding officer. The presiding officer questioned the irregularities committed by the writ petitioner in the Public Forum. The petitioner has not given any reply before the Presiding Officer. Then, the 5 presiding officer concluded that the petitioner has committed irregularities. Basing on the report of the social audit team this respondent issued show cause notice dated 14.3.2011 calling for the explanation of petitioner. Thereafter the petitioner submitted his explanation on 30.3.2011. After perusing the entire record, the 2nd respondent issued order terminating the petitioner from service on 14.3.2012. Thereafter, the petitioner preferred an appeal before the 1st respondent against the order of the 2nd respondent disciplinary authority. Thereafter, the 1st respondent after perusing the entire record confirmed the order of the 2nd respondent. Hence, prayed to dismiss the writ petition.
4. Reply affidavit is filed by the petitioner inter alia stating that the respondents issued posting orders as per the existing rules whether it is purely contractual or permanent, but the respondents violated the principles of natural justice to place some interested persons in his place by alleging irregularities and misappropriation of public funds. The petitioner has given detailed explanation to the show cause notice, but the respondents did not consider the same. He submitted that there was no excess money drawn as the workers drawn amount to their respective works, and the same was remitted to the ryots and therefore there is no excess money drawn. He further submits that he has been discharging his duties as per the orders of the higher officials and the same was being executed and intimated from time to time.
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It is further stated that the PIDP works were allotted for the years 2009-2010 and the social audit was conducted from 11.12.2010 to 23.12.2010 and the social audit team should have seen that the Gram Panchayat have to be scrutinized, but no sort of verification nor scrutiny has been done. Even though he submitted all relevant records with proofs at the time of social audit and at the time of reply to show cause notice and along with the appeal, the respondents terminating the petitioner from service. He further submits that if the respondents had really given opportunity he has put forth all contentions against the show cause notice. But they had not taken into consideration of his statement. It is also stated that the similar situated persons who issued show cause notice, were taken into duty and they have been doing their job. Hence, prays to direct the respondents as prayed for.
5. Heard Sri Chaparla Sitharam, learned counsel appearing on behalf of Sri K. Gani Reddy, learned counsel for the petitioner; Sri V. Vinod K Reddy, learned Standing Counsel for ZP,MPDO, Gram Panchayat and Sri M.S.R. Chandra Murthy, learned Special Counsel for NREGS appearing for the respondents.
6. The main argument of learned counsel for the petitioner is that the petitioner was appointed as Technical Assistant in Racharla Mandal under MGNREG Scheme by the respondents in the year 2009 and discharging his duties with utmost satisfaction of his superiors and there are no adverse 7 remarks from any corner. However, the 2nd respondent has issued show cause notice bearing Rc.No.D4/141/2011, dated 14.03.2011 and called for his explanation. Thereafter, the petitioner submitted his detailed explanation. However, the 2nd respondent without considering the explanation of the petitioner and without affording any opportunity to him, issued impugned proceedings in Rc.No.D4/141/2011, dated 16.03.2012, thereby ordered for recovery of an amount of Rs.1,62,986/-, which is not permissible under law.
7. Learned counsel further contended that though the petitioner has submitted his explanation, the 2nd respondent has not considered without affording an opportunity, which is not permissible under law and falls under violation of principles of natural justice. He also relied upon a judgment of learned Single Judge of this Court in Nakka Suribabu Vs. State of Andhra Pradesh and 2 others1, wherein this Court was held that " it should be noted that the 3rd respondent has not discussed the contents in the written explanation as well as the previous reports and has not given reasons as to how he was not satisfied with the submissions made in the explanation and how the findings in the previous reports were not convicting. Most importantly, he has not mentioned as to how the complaint allegations were established and what was the material which weighed with him to come to such conclusion. The order shows, no personal hearing seems to have been accorded to the petitioner. Therefore it is needless to emphasize the order is 1 W.P.no.12941 of 2020 dated 16.09.2020 8 devoid of reasons and bereft of following the principles of natural justice."
8. On the other hand, learned Standing Counsel argued that the petitioner was negligent in discharging his duties and therefore the 2nd respondent issued show cause notice dated 14.03.2011 duly providing opportunity of the personal hearing and the petitioner has also attended the personal hearing on 25.05.2011. After verifying the entire records and after considering the explanation, the 2nd respondent issued the impugned order dated 16.03.2012 and hence there is no reason to intervene with the order impugned, and as such, the writ petition is not maintainable and thus prayed to dismiss the writ petition.
9. After hearing the arguments of both the counsels and on a close scrutiny of the impugned order dated 16.03.2012 show, as rightly argued by the learned counsel for the petitioner, after noting in detail the allegations in the complaint, the 2nd respondent has jumped into the conclusion stating that on seeing the explanation and previous enquiry reports, he found the petitioner violated the conditions under Disciplinary Rules. He accordingly terminated the petitioner from the post of Technical Assistant. It should be noted that the 2nd respondent has not discussed the contents in the detailed explanation as well as the previous reports and has not given reasons as to how he was not satisfied with the submissions made in the explanation and how the findings in 9 the previous reports were not convincing. Most importantly, he has not mentioned as to how the complaint allegations were established and what was the material which weighed with him to come to such conclusion. Therefore, it is needless to emphasize the order is devoid of reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that proper opportunity of hearing was afforded to the petitioner herein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand.
10. No doubt, it is argued by learned counsel for the 2nd respondent that an appeal provision is provided in the concerned rules and thereby the writ is not maintainable. I am not convinced with the argument of the learned counsel for the respondents, for the reason, in the instant case there is a discernible violation of principles of natural justice as noted supra. Though admittedly, the petitioner submitted his written explanation, the same was not considered and no personal hearing was also granted to the petitioner at the time of enquiry. Therefore, the writ petition is maintainable. The power to issue prerogative writs under Article 226 of Constitution of India is plenary in nature and is not limited by any other provision of the Constitution.
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11. In view of the foregoing reasons, the Writ Petition is allowed and the impugned proceedings in Rc.No.D4/141/2011, dated 16.03.2012 passed by the 2nd respondent are set aside and remanded back the matter to the 2nd respondent, and further the 2nd respondent is directed to consider the written explanation of the petitioner and other relevant material and afford a elaborate personal hearing to the petitioner and pass an appropriate order strictly in accordance with the governing law and rules as expeditiously as possible but not later than eight (08) weeks from the date of receipt of a copy of this order. No costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 02 -03-2022 Gvl 11 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.12656 of 2013 Date : 02 .03.2022 Gvl 12 without considering the petitioner's detailed explanantion found that the petitioner not providing minimum needs to the wage seekers Ex. Drinking water etc., 50 wage seekers working instead of original wage seekers and the petitioner negligent to submit the D-Muster, it will be for delaying payments of wages to the wage seekers. Therefore, the 4th respondent terminated the service of the petitioner vide proceedings Rc.No.315/2015/E6/HR, dated 01.08.2015.
Even though alternative remedy is available, a writ is maintainable in view of the judgment in Whirlpool Corporation Vs Registrar of Trade Marks, where the Hon'ble Supreme Court held that a Writ petition is maintainable for the enforcement of Fundamental Rights or violation of prinples of natural justice or where the order of proceedigns are wholly without jurdiction or the vires of the Act is challenged.
illegal, arbitrary.
13has worked as Work Inspector in the respondents' organization initially at Kuderu vilalte and Mandal, Anantapur from January 1985 to April, 1986 and subsequently he was made In-charge Assistant Engineer of Rayadurg of Anantapur District. While he was working at Rayadurg, the 3rd respondent officials have given a complaint alleging that an amount of Rs.1,33,000/- has been misappropriated by the petitioner at Rayadurg and Dharmavaram and the same were registered as Crime No.17 of 1989 of Rayadurg Police Station and Crime No.24 of 1989 of Dharmavaram Police station, and basing on the said complaints, the petitioner was terminated from service on 03.05.1989. Subsequently it was proved that no such misappropriation has been occurred and the cases filed by mistake of fact and as such the same were withdrawn by the 3rd respondent vide letter No.RC MC1 No.1818/91, dated 02.07.1992. Basing on the above, the 1st respondent has written a letter to the 2nd respondent vide letter No.1301/RH1/93, dated 05.05.1995 asking them to reinstate the petitioner into service with immediate effect.
It is stated that in spite of the 1st respondent's letter dated 05.05.1995, the petitioner was not reinstated into service. Thereafter, as the petitioner made several requests and representations to the respondents, the 1st respondent addressed a letter to the 2nd respondent referring his 14 representations dated 28.06.2010 and 29.01.2011, asking for appointment to the petitioner as Work Inspector afresh on Outsourcing purely on temporary basis subject to obtaining irrevocable undertaking from the petitioner that the petitioner would not claim his earlier service/seniority in the cadre of Work Inspector, condonation of break-in service and consequential benefits thereon, but the petitioner did not give any such undertaking. Even then, the 2nd respondent has appointed the petitioner on 02.06.2011 only as Outsourcing Work Inspector on temporary basis without considering the continuous persuasion and representations.
It is stated that prior to termination of the petitioner, he has attended to the Test and Interviews conducted for the post Assistant Engineer on direct recruitment and secured 99 ½ marks and placed second position in the merit list of the OCs. But subsequent to his termination, he lost every opportunity in his career and now he has grown up to the age of 46 years and is not eligible for any appointment in the Government Post. Whereas, his colleagues who have been regularized in the year 1991 vide G.O.Ms.No.182 Housing (RH) Department, dated 13.11.1991, who worked on par with the petitioner, are now in high positions and promotions. It is stated that without there being any mistake or offence on his part, but for the vague news item complaints and taking action in irresponsible way without even getting clarified or enquired before initiating any action by the respondent, the petitioner lost his precious life and career. Thereafter, again the 15 petitioner sent a representation dated 27.01.2012 requesting to reconsider his case. But the respondents did not take any action. Hence, the present writ petition.
3. Heard Sri J.U.M.V. Prasad, learned counsel for the petitioner and Sri E.V. Jagannadha Rao, learned Standing Counsel for APSHC Limited appearing for the respondents.
4. Learned counsel for the petitioner submitted that even though the letter No.103/RH1/93, dated 05.05.1995 issued by the respondents for reinstatement of the petitioner, they did not consider the petitioner to reinstate into service and hence, requests to consider the case of the petitioner.
5. Learned Standing Counsel submits that they filed Memo, dated 01.02.2022 along with Service Agreement dated 13.05.2011 between the Outsourcing Agency i.e., The Anantapur District Computer Data Entry Operators Welfare Association, Anantapur and the petitioner with an undertaking that petitioner should join in service subject to the terms and conditions. He stated that as per this undertaking, the petitioner joined in service in the year 2011 and the contract period is ONE year. Now he is continuing in service and drawing salary. But surprisingly, the petitioner filed the present writ petition questioning his reinstatement into service in the respondents' organization, which is not maintainable under law. Hence, prayed to dismiss the writ petition. 16
6. In reply, learned counsel for the petitioner submits that the said Agreement filed by the respondents is only in collusion with the Outsourcing Agency, it is not at all acceptable and prays to allow the petition by giving direction to the respondents for reinstating the petitioner into service and for grant of consequential reliefs as prayed for.
7. It is an admitted fact that the petitioner joined in service as per Service Agreement in the year 2011. While disputing the same, the petitioner never raised this issue in his affidavit, approached this Court. On filing the undertaking by the respondents only, the petitioner is giving explanation stating that undertaking was obtained by way of fraud and collusion.
8. This Court, having perused the entire material on record especially the Memo filed by the 2nd respondent, which is taken on file that the petitioner, as per Clause(6) of the Terms and Conditions, he was agreed that he will not claim his earlier service/seniority in the cadre of Work Inspector, condonation of break in service and consequential benefits thereon as stipulated in Government letter, Rc.No.2224/U&IAY.A2/2010, dated 11.04.2011 and letter Rc.No.8393/ APSHCL/ Vig(3)/ATP/2010, dated 03.05.2011 of the Managing Director, AP State Housing Corporation Limited, Hyderabad and now the petitioner by suppressing the above fact came to this Court with another plea which this Court cannot entertain its jurisdiction under the Article 226 of 17 Constitution of India since he has no locus poenitentiae to plead at this moment and principle of estoppel while applied to him, this writ petition cannot be maintainable and devoid of merit and hence it is liable to be dismissed.
9. Accordingly, the Writ Petition is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : -02-2022
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HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.6333 of 2012
Date : .02.2022
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