* THE HON'BLE SRI JUSTICE P. NAVEEN RAO
+ WRIT PETITION No.2779 of 2021
% 01.04.2021
# Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad District
.. Petitioner
And
$ The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others.
.. Respondents
! Counsel for the petitioner : Smt P.Kavitha for
Sri Ravinder Alkuchi
Counsel for respondents : Government Pleader for
Services-II
< Gist :
> Head Note :
? Citations:
1. (2006) 4 SCC 322
2. (2014) 4 SCC 108
3. (2013) 1 SCC 353
4. (1874) 5 PC 221
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HIGH COURT FOR THE STATE OF TELANGANA : HYDERABAD
********
WRIT PETITION No.2779 of 2021
Between :
Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad District
.. Petitioner
And
The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others
... Respondents
DATE OF JUDGMENT PRONOUNCED : 01.04.2021
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers : Yes / No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes / No
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : Yes / No
see the fair copy of the Judgment ?
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HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.2779 of 2021
Date : 01.04.2021
Between:
Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad Disrict.
..... Petitioner
And
The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others.
..... Respondents
The Court made the following:
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HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.2779 of 2021
ORDER:
Heard learned counsel for the petitioner and learned Government Pleader for Services II appearing for the respondents.
2. Petitioner joined service as Junior Assistant in the year 2010, promoted as Senior Assistant in the year 2013, further promoted as Deputy Tahsildar (Civil Supplies) in the year 2019 and now aspiring for promotion as Assistant Civil Supply Officer. Petitioner is challenging the order of punishment dated 31.12.2016 withholding one annual increment without cumulative effect, as affirmed by the Appellate Authority vide his proceedings dated 12.09.2017.
3. According to learned counsel for the petitioner, the Disciplinary Authority has not followed the procedure specified in Telangana State Civil Services (Classification, Control and Appeal) Rules, 1991 (for short 'the CCA Rules, 1991'), more particularly the procedure prescribed in Rule 20 while conducting disciplinary proceedings and imposing punishment and on that ground alone, the proceedings are liable to be set aside.
4. According to learned counsel, charges were framed under Rule 20 of the CCA Rules. Rule 20 mandates to hold detailed enquiry by following the procedure indicated therein, prepare report of enquiry, call for explanation on the findings of enquiry, -5- consider the explanation against findings of Enquiry Officer and to pass orders as warranted. Once charges are framed under Rule 20, before imposing punishment, minor or major, per force, the entire gamut of the Rule has to be observed. While so, in the instant case, the said procedure was not followed. The Disciplinary Authority called for explanation on the charges framed against petitioner, considered the explanation offered by petitioner, held personal hearing and straight away imposed punishment. Aggrieved thereby, on appeal preferred by the petitioner, the Appellate Authority desired to enhance the punishment, but again without following due procedure, he straight away issued show cause notice by recording the findings independently and called for explanation. On submission of explanation, the Appellate Authority though dropped the proceedings, without assigning reasons, the order of punishment is affirmed. She therefore, submitted that the entire procedure is ex-facie illegal and therefore, the punishment imposed is not sustainable.
5. In support of her contentions, learned counsel for the petitioner placed reliance on the decision rendered by this Court in W.P.No.2753 of 2020 dated 27.07.2020.
6. Rule 9 of the CCA Rules specify range of punishments those can be imposed against a delinquent employee. They are broadly classified as major punishments and minor punishments. Withholding of increment without cumulative effect is a minor -6- punishment. Rule 20 prescribes detailed procedure required to be followed on charges drawn in accordance with the CCA Rules and after the proceedings are concluded, it is open to the Disciplinary Authority to impose any of the punishments specified in Rule 9. Rule 22 prescribes summary procedure to impose minor punishments. At the threshold, on noticing that an employee has committed misconduct, the Disciplinary Authority may assess the nature of delinquency as grave or minor. If he is of the opinion that what is alleged is only a minor misconduct, he can resort to Rule 22 to conduct summary proceedings and impose punishment. If Rule 22 is resorted to, it is not required to conduct detailed enquiry as specified in Rule 20. However, even in case of minor misconduct decision to hold gamut of procedure envisaged under Rule 20 or summary procedure has to be taken at the initial stage only.
7. Rule 20 vests discretion in the Disciplinary Authority to conduct enquiry on his own or to appoint an Inquiry Officer. In case, the Disciplinary Authority appoints an Inquiry Officer, the Inquiry Officer is required to follow detailed procedure, submit his report holding the charges proved, partly proved or not proved. On receiving the report of Inquiry Officer, it is for the Disciplinary Authority to accept the report of Inquiry Officer and /or to drop further proceedings. If he is not satisfied with the manner of conducting enquiry by the Inquiry Officer, it is also open to him to remit to the Inquiry authority to conduct enquiry denovo or from -7- the stage when the procedural infirmity was noticed. He is also competent to disagree with the findings recorded by the Inquiry Officer, record his disagreement note, communicate the disagreement note and call for explanation of the delinquent employee. If the Inquiry Officer holds the charge(s) as proved/partly proved, he can call for the explanation of the delinquent employee on the findings recorded by the Inquiry Officer, consider the explanation offered and take a final decision on the disciplinary action.
8. One of the primary requirements in a disciplinary action is to observe gamut of procedure laid down in the CCA Rules. The authority competent to take disciplinary action should alone impose punishment by independent application of mind, after affording due opportunity and by assigning reasons in support of the decision. Punishment imposed should be prescribed in the Rules/Regulations governing the service.
9. One of the important aspect of employment is control of employer on conduct of his employees. He can discipline them and penalize whenever they commit misconduct. When it comes to judicial review of disciplinary action, the scope is limited. Ordinarily, the Court tests the validity of disciplinary proceedings by considering whether the parameters set out above are complied. Once court is satisfied that procedural fairness was observed ordinarily, it will not interfere in the disciplinary action. In a given case, there can be an exception to this general principle, such as, -8- when punishment imposed is found to be disproportionate compared to delinquency alleged and proved. However under no circumstances, Court acts as an Appellate Authority. Even if there is breach of procedural fairness, court does not set aside the punishment as a matter of course. Court considers various aspects such as whether prejudice is caused, nature of violation of procedural safeguards, nature of charge leveled and most importantly, delay. If violations are palpable, Court may set aside the punishment and remand to Disciplinary Authority to conduct proceedings de novo from the stage of infirmities noticed. In a given case, having regard to the timeline of a case or to give quietus to the litigation, court may substitute the punishment. In retrospect, Court takes holistic view as facts unfold in a given case. There can be no straight jacket formula.
10. Guided by broad contours of scope of judicial review, reverting to the case on hand, a charge memo was drawn under Rule 20. Though, Rule 20 requires observance of whole gamut of the procedure, even if a minor punishment to be imposed, the Disciplinary Authority has not observed the whole procedure. In response to the charge memo, petitioner submitted detailed explanation. The Disciplinary Authority decided to conduct enquiry on his own. He therefore, issued notice to petitioner directing him to attend for personal hearing; the employee attended for personal hearing; in the personal hearing, he reiterated what was asserted by him in the explanation and requested the Disciplinary Authority -9- to drop the disciplinary proceedings. The Disciplinary Authority looked into the record, assessed the explanation offered by the petitioner, and imposed punishment of withholding of one annual increment without cumulative effect. This is classified as minor punishment.
11. Against this order, petitioner preferred appeal to the Commissioner on 16.01.2017. In the appeal, no objection was raised on procedural infirmities. Did not plead prejudice caused to him by not following procedure required by Rule 20. The grounds urged were on merits of the allegations leveled against the petitioner and sought for exonerating him. He urged the Appellate Authority to take a lenient view and to drop the charges. He was more concerned about his promotion. The Appellate Authority adopted a strange procedure. He sought to disagree with the punishment imposed by the Disciplinary Authority, suo-moto decided to take disciplinary action by drawing up charges and called for explanation of the employee. On a decision of Disciplinary Authority, it is open to the Appellate Authority to enhance the punishment or order for denovo enquiry. Decision to enhance can be taken even while considering the appeal preferred by the delinquent employee. However, before enhancing the punishment, he must issue show cause notice to the employee and call for his explanation. He cannot conduct enquiry on his own. Thus, the procedure adopted by the Appellate Authority in response to the appeal preferred by the petitioner against
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punishment imposed by the Disciplinary Authority was also erroneous. It appears, better senses prevailed and this mis-adventure was aborted. The Appellate Authority summarily affirmed the decision of Disciplinary Authority.
12. Petitioner did not protest against the decision of Appellate Authority, undergone punishment imposed and accepted the promotion as Deputy Tahsildar prospectively after the currency of punishment, though he was aware that his juniors were promoted during pendency of disciplinary proceedings and while under currency of punishment. Petitioner now claims that as his juniors are now under consideration for further promotion, he should also be considered for promotion. In other words, petitioner now realizes that he cannot get promotion as Assistant Civil Supply Officer, unless, he challenges the Disciplinary proceedings and gets promotion retrospectively from the date of promotion of his juniors. This realization impelled him to gear up the challenge on procedural lapses in conducting disciplinary proceedings and knock the doors of this Court, albeit after long time of arising cause of action to him.
13. The fact remains petitioner is challenging the order of punishment imposed on 31.12.2016 after four years. Much water has flown under the bridge. Third parties have acquired rights. Therefore, even assuming that procedural violations pointed out are fatal to the invalidity of punishment imposed on petitioner and is not sustainable, the question for consideration is should this
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Court exercise its equity jurisdiction to grant the relief which, per force, upset the applecart.
14. In the facts of this case, the issue for consideration is whether delay of about four years is fatal to deny the relief to petitioner?
15. Accepting the contention of petitioner on procedural violations in conducting disciplinary proceedings and setting aside punishment would mean that matter should be reverted to the stage of conducting enquiry afresh, pursuant to the charge memo dated 20.05.2016. This course will throw up interesting scenarios, not conducive to petitioner's narrative and to the detriment of others promoted in the meanwhile. If the punishment order is set aside and remanded to the Disciplinary Authority to conduct enquiry afresh strictly in accordance with CCA Rules, it would mean that disciplinary proceedings are pending when petitioner was under consideration for promotion and when he was promoted as Deputy Tahsildar. Therefore, in accordance with the policy of Government as notified in G.O.Ms.No.257 General Administration (Services-C) Department dated 10.06.1999, during pendency of disciplinary proceedings, employee is not entitled to promotion, though he is entitled for consideration for promotion. Thus, promotion granted to him after he had undergone punishment, per force, also gets vitiated and he should be reverted to the lower post held by him. At any rate he cannot be considered for further promotion as the disciplinary proceedings are stated to be pending.
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16. Conversely, if the order of punishment is set aside on the ground that there is clear violation of procedural norms and not granting relief of remitting the matter to the Disciplinary Authority on the premise that the issue relates to period more than five years by now petitioner is entitled to review of promotions made earlier, which would affect promotion/s granted to his juniors, upsetting settled issue of promotion and seniority.
17. On setting aside the punishment, it is mandatory for the appointing authority to give effect to the recommendation of Departmental Promotion Committee and to promote petitioner retrospectively from the date of promotion of his immediate junior. If earlier Departmental Promotion Committee did not consider the petitioner, the Appointing Authority has to convene meetings of the Departmental Promotion Committee (DPC) to review earlier proceedings recommending promotion of juniors and to assess the suitability of the petitioner. If the review DPC recommends petitioner for promotion, the recommendation has to be given effect to from retrospective date when immediate junior was promoted. If earlier Departmental Promotion Committee recommended petitioner for promotion but promotion was deferred on the ground that disciplinary proceedings were pending, he is entitled to promotion, again from the date of promotion of his immediate junior.
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18. Consequent to granting retrospective promotion, if it is found that all vacancies were filled up and no vacancy was available as on that date to accommodate the petitioner, it may result in reversion of junior most person promoted earlier. It will also alter seniority position. As petitioner was ignored and juniors were promoted they became seniors in the Deputy Tahsildar cadre. This will have to be changed. It will also result in depriving one of them further promotion as slot goes to petitioner.
19. Thus, adopting this course would be causing greater injustice to those persons who were promoted based on their suitability, conduct and service record, overlooking the petitioner. Therefore, they are directly affected if any such exercise is undertaken. Thus, it is not so simple as sought to be presented by petitioner. It will have a cascading effect on others, no way concerned and no way contributed to petitioner's fatigueness to assert his right at appropriate time and in whose favour a parallel right is created. They are not parties before this Court. Granting any relief to the petitioner will impact on issues which are settled long ago.
20. Assuming that there were procedural lapses in conducting disciplinary proceedings, no one but petitioner has to blame himself for closing his eyes on the procedural violations, accepting the punishment, accepting the promotion from later date and turning around only when he realizes that he cannot be considered for further promotion, unless punishment order is set aside.
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Furthermore, it is appropriate to note that the allegation leveled against the petitioner is grave. Petitioner does not assert as not guilty, but tried to justify the circumstances leading to happening of alleged incident of delinquency and prayed to excuse him. It is appropriate to note at this stage that in departmental proceedings to establish an allegation of misconduct what is required is 'preponderance of probability' and not concrete evidence like in criminal proceedings. This disentitles him to seek equitable relief. He can not be exonerated without taking the disciplinary action to logical conclusion. Therefore, accepting his plea can have only one consequence, i.e., to remand to the stage of drawing charge memo. That may prove to be counter productive to petitioner's ambitions.
21. In the above analysis of facts and law, the delay in invoking the jurisdiction of this Court, though sounds as only four years, looming large and engulfs the aspirations of the petitioner.
22. Writ remedy is an extra-ordinary remedy, equitable and discretionary. Article 226 of the Constitution of India does not impose any restrictions to avail the remedy. It is very wide and all encompassing. Whenever, an aggrieved person knocks the doors of the Writ Court, the Court looks into the allegation of infringement of the right of an individual, examines his claim and redresses the grievance wherever injustice is caused. However, Constitutional Courts have imposed self-restraint in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India. One aspect which Court considers while assessing the
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grievance is whether petitioner slept over his right to agitate against alleged illegality, allowed other events to take their course and times to avail extraordinary remedy when it suits him, leisurely. Thus, mere assertion against impingement of a right is not sufficient, it must be asserted within a reasonable time of arising of cause of action alleging such impingement and much before the third party acquired his right encompassing the claim of petitioner.
23. Ordinarily Writ Courts do not encourage stale claims even assuming party makes out a case of infringement of his right. Thus, in considering a grievance brought before the High Court in a writ petition, delay, laches and conduct of the petitioner also plays significant role and determines the course of the litigation. Though, again, there is no hard and fast rule, impact of delay and laches on the course of litigation depends on the facts of the case, nature of grievance and relief prayed. Even though, there is delay in filing writ petition, writ Court may still entertain a writ petition, if it finds grave illegality in the decision affecting a person, no third party rights have accrued in the meantime and petitioner explains reasons for delay to the satisfaction of the Court. In a given case, the Court may mould the relief, having regard to the delay in instituting the writ petition. But, whenever, there is delay in availing writ remedy important aspect to be taken into consideration is whether in the meantime third party rights have crept in.
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24. In service disputes, whenever a grievance is made on infringement of right of an employee, in a writ petition instituted after lapse of reasonable time, the Court is also required to look into the aspect whether granting relief to petitioner would impact any other employee. Writ Court may refuse to grant the relief, if in the meantime third parties have acquired right and entertaining the writ petition and granting relief would upset settled issue particularly in matters of seniority and promotion. Court also takes note of Rules/Regulations governing the service which deal with time frame to avail redressal mechanism in assessing the delay and latches.
25. When writ jurisdiction is invoked, unexplained delay coupled with creation of third party rights in the meantime is an important facet which also weighs with the High Court in deciding whether or not to exercise such jurisdiction [Karnataka Power Corporation Ltd Vs K.Thangappan1(Paragraph No.9)]. The Constitutional Court has to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained (Chennai Metropolitan Water Supply and Sewerage Board Vs T.T.Murali Babu2). However, the real test to determine delay is that the petitioner should come to the Court before a 1 (2006) 4 SCC 322 2 (2014) 4 SCC 108
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parallel right is created but the test is not the physical running of time (Badruka College of Commerce Vs State of A.P., Education Department and others).
26. In Tukaram Kana Joshi Vs Maharastra Industrial Development Corporation3, the Hon'ble Supreme Court held as under :
"12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third- party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
(emphasis supplied)
27. In Shiv Das Vs Union of India and Others, the Hon'ble Supreme Court approved the view taken by the Privy Council in Lindsay Petroleum Co., Vs Prosper Armstrong Hurd4. It reads as under :
7."What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co., Vs Prosper Armstrong Hurd, PC at P.239 was approved by this Court in Moon Mills Ltd. Vs M.R.Meher (AIR 3 (2013)1 SCC 353 4 (1874) 5 PC 221
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1967 SC 1450 and Maharastra SRTC Vs Balwant Regular Motor Service (AIR 1969 SC 329), Sir Barnes had stated :
"Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
(emphasis supplied)
28. Learned counsel for the petitioner sought to emphasize that in W.P.No.2753 of 2020, the Court having found that grave illegalities were committed in taking disciplinary action, even though writ petition was filed after six and half years on arising of cause of action, the relief was granted to the writ petitioner therein.
29. No doubt, in the said writ petition, the Court came down heavily on the manner in which proceedings were conducted and though Court noticed that there was inordinate delay in invoking the jurisdiction of writ Court, it granted relief to the petitioner therein. However, on a closure look at the facts, the decision therein can not come to the rescue of the petitioner. From
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paragraphs 33 and 35 of the said judgment it is seen that it was a case of prolonged disciplinary action; that procedure laid down by the CCA Rules to impose major punishment was observed more in breach; that repeated disciplinary action was initiated on the same issue; and that there was no independent application of mind by the Disciplinary Authority but acted as per the directions of the Appellate Authority. The Court held that the punishment imposed was vitiated on all counts.
30. The Court molded the relief while setting aside the punishment. The punishment imposed therein was withholding of two annual increments with cumulative effect. Which is a major punishment as employee is deprived of increments permanently. While so, the Court only ordered releasing of increments withheld. The Court further ordered notional fixation of annual increments, but denied him arrears of amounts on restoration of annual increments and granted further consequences prospectively. The Court also held that petitioner therein was not entitled to claim retrospective promotion even if junior to him was granted promotion from earlier date.
31. In the instant case the punishment imposed is withholding of one annual increment without cumulative effect. The effect of such punishment is, the employee is denied annual increment during the currency of the punishment, but his increment will be released as soon as punishment period is over. Therefore, no cumulative effect results in imposing such punishment. Thus, it is
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not necessary to pass order to release increment at this stage. The basis of instituting this writ petition, challenging the punishment is to secure promotion as Deputy Tahsildar retrospectively from the date of promotion of his juniors. In the case relied upon by learned counsel for the petitioner, the Court having noticed that third party interests have crept in the meantime, any relief granted to the petitioner therein would affect the claim of third parties, denied promotion from the date of promotion of junior. By parity of reasoning, in the instant case also petitioner is not entitled to such relief. Further, the petitioner therein gave up the claim of promotion from retrospective date and therefore, limited relief was granted to the petitioner therein. In the instant case, petitioner is not giving up the claim of retrospective promotion. Unless retrospective promotion is granted to him, he cannot be considered for further promotion along with his earlier juniors.
32. For the aforesaid reasons, petitioner is not entitled to the relief prayed and the writ petition is liable to be dismissed. It is accordingly dismissed. Pending miscellaneous petitions stand closed.
__________________ P NAVEEN RAO,J DATE:- 01.04.2021 Rds/tvk Note: L R Copy to be marked--YES
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HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.2779 of 2021 Date : 01.04.2021