THE HONOURABLE SMT. JUSTICE P.MADHAVI DEVI
WRIT PETITION (TR) No. 364 OF 2017
ORDER:
This Writ Petition has been filed by the petitioner seeking a direction to set aside the impugned order of the respondent No.1 imposing punishment of withholding of 50% of pension permanently vide G.O.Rt.123, Transport, Roads & Buildings (Vig.III.2) Department dated 07.02.2012, which was communicated to the petitioner on 26.03.2012, as illegal, arbitrary and in violation of principles of natural justice
2. Brief facts leading to the filing of the present writ petition are that the petitioner was initially appointed as Assistant Motor Vehicle Inspector (AMVI) and was promoted as Motor Vehicle Inspector (MVI) in the year 1993. The petitioner retired from service on attaining the age of superannuation on 30.11.2002. It is submitted that the petitioner's performance has been appreciated by one and all throughout his period of service. It is submitted that while the petitioner was working at Transport Check Post, Shapoor, Ranga Reddy District, on 28.05.2002 i.e., just five PMD,J W.P(TR).No.364 of 2017 2 months before petitioner's retirement, the ACB authorities conducted a surprise check and consequently, a charge memo was issued to the petitioner on 01.01.2003 i.e., after his retirement alleging that the petitioner has violated the conduct rules as he has engaged private persons to collect bribe amounts on his behalf. Thereafter, the petitioner has submitted his written submissions on 24.10.2003 denying the charges leveled against him. It is submitted that without considering any of the submissions made by the petitioner in his explanation, the respondents have appointed an Enquiry Officer for conducting common enquiry against the petitioner as well as Mr.Showket Hussain (MVI), D.Venkateswarulu (AMVI) and N.Mahinder (Transport Constable) and the Enquiry Officer, after holding inquiry, has held the charges as proved against the petitioner and on the basis of such Inquiry report, the departmental enquiry was concluded and the punishment of 50% cut in pension permanently was imposed vide G.O.Rt.No.123, dated 07.02.2012. Challenging the same, the petitioner has filed O.A. before the Andhra Pradesh Administrative Tribunal (APAT). Thereafter, after the bifurcation of the PMD,J W.P(TR).No.364 of 2017 3 State and due to non formation of an Administrative Tribunal for the state of Telangana, the O.A., has been transferred to this High Court and was re-numbered as W.P.(TR).No.364 of 2017.
3. Learned counsel for the petitioner submits that during the enquiry, two witnesses were produced by the ACB who were alleged mediators and therefore, these two witnesses are interested witnesses and therefore, credence cannot be given to such evidence without collaboration.
4. It is submitted that the said witness also have spoken only on recitals of the surprise check proceedings and hence, private parties were said to have been engaged by Mr.Suresh Kumar and V.Srinivas during the inquiry and therefore, it was only a farce of an inquiry that was held.
5. It is submitted that without producing the relevant witnesses and without making them available for cross examination and without conducting the departmental enquiry, the respondents have considered the preliminary inquiry itself as departmental enquiry and have imposed the punishment of withholding of 50% of the pension PMD,J W.P(TR).No.364 of 2017 4 permanently. It is further submitted that non-producing of witnesses i.e., M/s.Suresh Kumar and V.Srinivas and members whose statements were recorded during the surprise check proceedings has clearly put the petitioner to prejudice and is denied reasonable opportunity of defending himself. He therefore, prayed for setting aside of the impugned punishment.
6. It is further submitted that during the course of surprise check from 1 p.m., to 08.30 p.m., on 28.05.2002, there was no excess amount found with the petitioner or with anyone else or within the premises of the check post and that the petitioner has neither received any amount from anyone nor engaged anyone to collect amounts. It is submitted that the authorities have imposed the impugned punishment clearly on the basis presumptions and assumptions, which is not permissible under law.
7. It is submitted that the show cause notice was issued to the petitioner enclosing the inquiry report dated 10.06.2010, to which the petitioner submitted his explanation vide his representation dated 29.06.2010 and PMD,J W.P(TR).No.364 of 2017 5 its only after the lapse of nearly two years that the respondents have issued impugned G.O.Rt.No.123, dated 07.02.2012 imposing the punishment. It is submitted that the incident allegedly has taken place in May, 2002 and the punishment was imposed on 07.02.2012 i.e., after 10 years of retirement of the petitioner and after attaining the age of superannuation on 30.11.2002 and therefore, it is submitted that the petitioner has been made to suffer for the past one decade without being paid the terminal benefits under the garb of pendency of proceedings against him.
8. It is further submitted that though the petitioner has co-operated with inquiry proceedings, there was no response from the respondents and by keeping the proceedings pending for 10 long years without reasonable cause and then imposing punishment, is unjust and unreasonable, particularly when the other co-delinquent employee were imposed with the punishment of stoppage of one increment with cumulative effect only. Therefore, according to the learned counsel for the petitioner, the punishment imposed on the petitioner is shockingly PMD,J W.P(TR).No.364 of 2017 6 disproportionate and is an act of inhumanness. Therefore, according to him such arbitrary use of power has to be set aside under Article 226 of Constitution of India.
9. In support of his contention, the leaned counsel for the petitioner had relied upon the judgment of the Hon'ble Supreme Court and other High Courts in the following cases:
(i) Takhaji Heraji Vs.Thakore Kubersing Chamansing, reported in (2001) 6 SCC 145;
(ii) A.C.Ravindran Vs. High Court of Andhra Pradesh, Hyderabad and Another, reported in 2011 (2) ALD 275(DB);
(iii) State of Uttar Pradesh Vs.Saroj Kumar Sinha, reported in (2010) 2 SCC 772;
(iv) Sher Bahadur vs. Union of India and Others, reported in (2002) 7 SCC 142.
10. On the other hand, the learned Government Pleader relied upon the averments made in the counter affidavit justifying the order of the punishment. Further, he placed reliance upon the judgment of Hon'ble Supreme Court in the case of State of Karnataka and Another Vs. PMD,J W.P(TR).No.364 of 2017 7 N.Gangaraj1, wherein it was held that power of Judiciary is confined only to the decision making process and is not that of an appellate authority. He further submitted that this Court cannot go into the sufficiency or otherwise of the evidence considered by the enquiry officer.
11. Having regard to the rival contentions and the material on record, this Court finds that the judgment relied upon by the learned Government Pleader is not relevant to the case on hand, because in this case, the process of decision making is under challenge and not the decision itself.
12. It is noticed that though the charges relate to the surprise check conducted on 28.05.2002 i.e., few months before the retirement of the petitioner, the respondents have concluded the inquiry in the year 2010 and imposed punishment in the year 2012 i.e., after ten years of his retirement. The learned counsel for the petitioner has pointed out various lacunas in the enquiry conducted by the respondents. The respondents have relied upon the 1 (2020) 3 SCC 423 PMD,J W.P(TR).No.364 of 2017 8 preliminary enquiry conducted by the respondents and the statements of the witnesses who have not been produced for examination and cross examination during the departmental enquiry by the officer. Therefore, it is clear that the enquiry has not been conducted in accordance with settled principles of natural justice. It is settled law that when any statement is being relied upon by the authorities against delinquent employee, then the respondents are required to provide the delinquent employee an opportunity of cross examination of such witnesses. Therefore, the impugned order is liable to be set aside on this ground alone. Further, as pointed out by the learned counsel for the petitioner, which has not been rebutted by the respondents in the counter affidavit, the other co-delinquent employee has been imposed lesser punishment. However, the reasons for higher punishment in the case of the petitioner are not forthcoming in the present writ petition.
13. In view of the same, this Court is inclined to set aside the impugned order dated 07.02.2012 and direct that the punishment of stopped of one increment with cumulative effect be substituted and thereafter, the respondents are PMD,J W.P(TR).No.364 of 2017 9 directed to pay the pension to the petitioner from the date of retirement to till date of this judgment in accordance with rules.
14. Accordingly, this writ petition is allowed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Dated: 11.11.2022 bak PMD,J W.P(TR).No.364 of 2017 10 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P (TR).No. 364 OF 2017 Dated: 11.11.2022 bak