THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.5131 OF 2017
AND
WRIT PETITION NO.39353 OF 2016
COMMON ORDER
Both these Writ Petitions are filed by the respective petitioners
challenging the charge memos under G.O.Rt.No.482 dt.23.09.2016
issued by the 1st respondent as arbitrary, mala fide and illegal and to
issue a Writ of Mandamus nullifying the same.
2. Brief facts leading to the filing of these Writ Petitions are that the petitioner in W.P.No.5131 of 2017 was working as Deputy Registrar/Audit Officer at Medchal-Malkajgiri District at the time of filing of the Writ Petition. Earlier, she had worked as District Co- operative Audit Officer, Ranga Reddy District and the staff working under her has been assigned the task of undertaking the audit of APSCRIC under the proceedings dt.16.12.2014 of the Chief Auditor.
3. The petitioner in W.P.No.39353 of 2016 had joined the Co- operative Department as Deputy Registrar and became Additional W.P.Nos.5131/2017 & 39353/2016 2 Registrar in course of time. While she was working as the Additional Registrar and the Chief Auditor in Co-operative Department, on 07.05.2014 the Managing Director, APSCRIC Limited had requested the petitioner to appoint M/s. Hawalder and Associates, Chartered Accountants and M/s. S.G. Dastagiri & Co., Chartered Accountants, Hyderabad to complete the statutory audit for the years 2011-12, 2012- 13 and 2013-14 in view of the bifurcation. It is submitted by the petitioner in W.P.No.39353 of 2016 that the said request was impermissible under law under Section 43 read with Section 50 of the APCS Act and therefore, she had appointed five departmental auditors vide proceedings Rc.No.7662/2014/AA-1, dt.09.05.2014 and instructed the auditors to complete the final audit by 15th May, 2014 and submit the audit report to the District Co-operative Audit Officer, Hyderabad for final closure of the accounts as per the procedure in vogue. It is submitted that the Chief Auditor has acted as per the Circular Memo CC&RCS Rc.No.4719/2014-AA1, dt.05.05.2014 and the provisions of APCS Act, 1964. Since all the auditors belong to Ranga Reddy District, the District Co-operative Audit Officer, Ranga Reddy was requested to pursue the subject audit and ensure early completion of the audit. It is submitted that the auditors have visited the APSCRIC office many times W.P.Nos.5131/2017 & 39353/2016 3 so as to complete the audit on production of the records, but the Managing Director failed to provide the records as requested by the auditors. It is submitted that it is mandatory to conduct the audit by verifying measurement books, work orders, vouchers and agreements since it is an engineering institution and the audit being delayed due to non-production of the records, the auditors therefore requested them to provide the records vide half margin letters dt.04.11.2014, 20.11.2014 and 17.12.2014. It is alleged that the then Managing Director Sri James Kalwala was repatriated to his parent department vide G.O.Rt.No.197 A&C (Coop-1) and the petitioner in W.P.No.39353 of 2016 was appointed as MD with full additional charge on 21.11.2014 vide proceedings Rc.No.2866/2014/PE, dt.21.11.2014 and immediately thereafter, she provided the records to the auditors and the auditors completed the audit and submitted their report on 03.03.2015. It is submitted that the auditors have come across several irregularities in allocation of works and violation of rules and misuse of funds and based on such findings of irregularities, the petitioner in W.P.No.39353 of 2016 has suspended the persons who are responsible for the irregularities.
W.P.Nos.5131/2017 & 39353/2016 4
4. It is submitted that in the meantime, the DCO, Ranga Reddy District appears to have received one audio CD, which was claimed to have been sent to the 2nd respondent office. On the basis of the contents of the said audio CD, the 2nd respondent initiated action against the petitioners in both the above Writ Petitions. A preliminary enquiry was ordered by appointing one Sri D.Rajesham under CCA Rules. Thereafter, the proceedings have been modified by appointing one Sri B. Janardhana Reddy, IAS as enquiry officer. It is submitted that the petitioner in W.P.No.5131 of 2017 was issued a charge memo under RC.No.1/2015/SG4 dt.23.06.2015 and another charge memo under G.O.Ms.No.95, dt.09.10.2015 ordering common enquiry against both the petitioners herein and three employees of APSCRIC, which is a cooperative society. The petitioner in W.P.No.39353 of 2016 challenged the said charge memo by filing O.A.No.6238 of 2015 and the said charge memo was suspended by order dt.05.11.2015. The petitioner in W.P.No.5131 of 2017 also challenged the said G.O.Ms.No.95, dt.09.10.2015 in the Administrative Tribunal by filing O.A.No.6703 of 2015 on various grounds including the ground that a common enquiry adding non-Government employee is not permissible. Thereafter, the W.P.Nos.5131/2017 & 39353/2016 5 Tribunal had suspended G.O.Ms.No.95 dt.09.10.2015 on 05.11.2015. Thereafter, the Government issued another charge memo vide G.O.Ms.No.482, dt.23.09.2016 which has been challenged by both the petitioners in these Writ Petitions.
5. The contentions of both the above writ petitioners are that the charge memos and charge sheets have been issued by the respondents only on the basis of the audio CD sent by an anonymous person. It is submitted that without verifying the authenticity and genuineness and identity of the person who has sent such CD, the respondents could not have initiated any action against the petitioners herein.
6. Learned Senior Counsel appearing for the writ petitioners, Dr.P.B. Vijay Kumar, places reliance upon the Circular issued by the Central Government issuing instructions on the action to be taken on anonymous/pseudonymous petitions/complaints, i.e., Circular Memo No.706/Spl.B3/99-3, G.A.(Spl.A) Dept., dt.28.10.1999 and also Circular No.03/03/16, dt.07.03.2016 and also the judgment of the Hon'ble Supreme Court in the case of Income Tax Appellate Tribunal through W.P.Nos.5131/2017 & 39353/2016 6 President Vs. V.K. Agarwal and another1 in support of his contention that the action taken by the respondents is unsustainable.
7. Learned Government Pleader for Services-III, on the other hand, supported the impugned action and relied upon the averments in the counter affidavit. It is submitted that the Writ Petitions are not maintainable as they are against the issuance of charge memos/charge sheets and therefore, they are premature. It is submitted that without submitting the explanations to the charge sheets/charge memos, the petitioners have filed the present Writ petitions and therefore, they have to be dismissed at the admission stage itself. In support of the said contentions, he placed reliance upon a judgment of the Hon'ble Delhi High Court in the case of Union of India and another Vs. Vineet Ohri2 and a decision of this Court in the case of K. Samuel John Vs. The Commissioner of Labour, State of Telangana and another3. The learned Government Pleader also filed additional material papers to demonstrate that issuance of charge sheet is on the basis of the 1 (1999) 1 SCC 16 2 WP (C) No.7914 of 2009 dt.10.07.2009 3 W.P.No.4856 of 2017 dt.17.04.2017 W.P.Nos.5131/2017 & 39353/2016 7 allegations made in the CD against the writ petitioners/officers concerned and that the charges are grave in nature.
8. Having regard to the rival contentions and the material on record, this Court finds that the only question in this case is whether the disciplinary proceedings can be initiated on the basis of an anonymous/pseudonymous complaint. Allegedly in this case, the respondents have received a CD from an anonymous sender and as per the conversation in the CD, the writ petitioners herein are demanding huge amounts. Admittedly, the voices in the CD do not belong to the petitioners herein. As per the Circular dt.28.10.1999 of the Central Vigilance Commissioner, no action should be taken on anonymous/pseudonymous complaints. It has been directed that normally allegations contained in an anonymous petition ought not to be taken notice except in cases where the details given are specific and, therefore, verifiable and the authority that receives such complaints may make such preliminary examination as may be necessary and in the case of pseudonymous petitions, where a specific address has been given in the complaint, it shall be open to the authority which received the petition to address a communication to the person purporting to be the W.P.Nos.5131/2017 & 39353/2016 8 sender of the petition for further information and if it transpires that there is no person of the name at the address given, then it may be considered that the petitioner's name is pseudonym and the petition should be dealt with in the same manner as an anonymous petition. The Vigilance Commissioner (CVC) has taken note of the fact that a large number of disgruntled and disappointed persons are apt to make serious allegations against public servants out of malice of frustration and that they generally do not reveal their identity and prefer to file anonymous or pseudonymous complaints even against public servants of known integrity and good repute. The CVC after considering all the aspects on the issue have issued a direction that no action should at all be taken on any anonymous or pseudonymous petitions or complaints and they may just be filed. In Circular No.03/03/2016, dt.07.03.2016, this position has been reiterated and at para 5 thereof, it has been directed as under:
"5. Based on the opinion furnished by Ld. AG, the following clarifications are being issued:-
i. No action should be taken on anonymous / pseudonymous complaints in line with Commission's present instructions dated 25th November, 2014 and such complaints should be filed.
W.P.Nos.5131/2017 & 39353/2016 9 ii. However, where the action was initiated on anonymous/ pseudonymous complaints prior to the issue of CVC's circular dated 29.6.1999 and was pending as on 29.6.1999, it can be pursued further to its logical end.
iii. Where action was initiated on anonymous / pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of CVC but is pending, further action is permissible on such complaints.
iv. Material/evidence gathered during the investigation/ verification of anonymous complaints when the action was prohibited on such complaints (i.e. between 29.06.1999 & 11.10.2002), or where such enquiry was initiated without the approval of CVC, can be utilised for further initiation of disciplinary proceedings on misconducts noticed in such verification / enquiry."
9. Further, after going through the documents filed by the respondents with regard to the action taken on receipt of the CD, it is noticed that the respondents have not carried out any exercise to verify the authenticity of the CD or about the identity of the sender of the CD. In such circumstances, the directions issued by the CVC in the Circular dt.07.03.2016 would be very much applicable. Though this Court would not interfere at the stage of issuance of the charge memo, since it would be a premature action, in these cases, it is seen that the charges against W.P.Nos.5131/2017 & 39353/2016 10 the petitioners are only on the basis of an anonymous CD. Therefore, the issuance of charge memo itself is vitiated. Hence, this Court deems it fit and proper to set aside the charge memos issued by the respondents against the petitioners herein.
10. Both the Writ Petitions are accordingly allowed. No order as to costs.
11. Pending miscellaneous petitions, if any, in both the Writ Petitions shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 16.08.2022 Svv