THE HONOURABLE SMT. JUSTICE P.MADHAVI DEVI
WRIT PETITION (TR) No. 941 OF 2017
ORDER:
This writ petition has been filed by the petitioner seeking a writ of certiorari to call for records relating to the impugned proceeding No.A3/PR/132&169/SPF/2007, O.O.No.15(T2)/08, dated 02.09.2008 issued by the respondent No.1 and orders passed in the appeal of petitioner by the respondent No.2 in RC.No.A3/PR/132&169/SPF/2007-10, O.O.No.A-74/2011, dated 10.02.2011 and the orders passed by respondent No.4 in Revision Petition Vide BC.No.A3/PR/132&169/ SPF/2007-12, O.O.No.A-04/2012, dated 05.01.2012 and its connected orders dated 02.06.2012 and the consequential orders issued by the Government in Memo No.9261/Ser,III/A3/2012, dated 17.01.2013, as illegal, arbitrary, unjust, discriminatory and disproportionate to the gravity of the charges and consequently to direct the respondents to drop the disciplinary proceedings against the petitioner and further release all the consequential service PMD,J W.P(TR).No.941 of 2017 2 benefits including promotion and pass such other and further orders.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was initially appointed as a Police Constable in SPF on 12.08.1994 and was promoted to the post of Head Constable with effect from 28.12.2005 notionally vide order dated 18.04.2006. It is submitted that on the allegations that the petitioner was playing cards while working as SPF Guard, ABCC, Karimnagar, on 01.12.2007 along with one T.E.V.Raju (ASL 821) and R.Kumara Swamy (CT 965), the petitioner was placed under suspension on 01.12.2007. The petitioner was issued a charge memo by framing two charges on 17.12.2007 and the petitioner submitted his explanation to the same on 01.08.2008. It is submitted that on 26.03.2008, the Assistant Commandant, SPF, Hyderabad, was appointed as an Inquiry Officer, to whom the petitioner submitted his representation on 30.05.2008 and sought an opportunity to cross examine the Bank Manager and sought for a copy of the statement of bank manager for the said purpose. It was PMD,J W.P(TR).No.941 of 2017 3 submitted that in spite of said request, the petitioner was not furnished the copy of said statement. It is submitted that on the basis of the inquiry report, a show cause notice dated 30.06.2008 was issued to the petitioner and the petitioner had submitted his explanation to the same. However, on 02.09.2008, the impugned punishment order was passed reducing the petitioner's time scale of pay by three years with cumulative effect. It is submitted that the petitioner has filed an appeal with the respondent No.2, but the same was rejected and even the revision filed by the petitioner was also rejected by the respondent No.4. It is submitted that the petitioner's scale was reduced from Rs.5750/- to Rs.5605/- vide proceedings dated 02.06.2012 and the petitioner's representation to the Government on this, was also rejected. Challenging the same, the petitioner filed O.A. before the Andhra Pradesh Administrative Tribunal and due to non formation of an Administrative Tribunal for the State of Telangana, the said matter has been transferred to the High Court and was renumbered as W.P.(TR).No. 941 of 2017.
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3. The learned counsel for the petitioner submitted that the petitioner is challenging the impugned order on the grounds that it is violation of Rule 20 of TS CS (CCS) Rules 1991, as no witnesses were examined and no documents were furnished to the petitioner during the course of inquiry. He referred to Rule 20 (4), which refers to the documents furnished and also Rule 20 (11) whether the I.O., shall issue notice to the parties. He further submitted that the Inquiry Officer and Disciplinary Authority are required to consider only the incident for which charges have been framed and not his past record for imposing the punishment on the petitioner. He submitted that though the appellate authority himself observed that the Inquiry Officer should not consider the past record of the petitioner, he has also considered the same while imposing the punishment on the petitioner. According to him, the impugned punishment are too harsh, excessive and totally disproportionate to the charges framed against the petitioner.
4. Learned counsel for the petitioner also relied upon the following judgments in support of his contentions:
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(i) D.Srinivas Vs. Government of A.P., Transport, Roads and Buildings (Vig.1) Departmetn and Others, reported in 2013 (4) ALT 1 (DB);
(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 and Others, reported in 2010 (2) SCC 772;
(iv) Roop Singh Negi Vs. Punjab National Bank and Others, reported in 2009 (2) SCC 570.
5. Learned counsel for the petitioner has further filed the copies of orders passed by the Government in respect of other co-accused i.e., R.Kumara Swamy and T.E.V.Raju, wherein the punishment of postponement of one increment for one year without cumulative effect has been passed. He therefore, seeks similar treatment in the case of the petitioner herein as well.
6. The learned Government Pleader, on the other hand, supported the impugned order and submitted that the PMD,J W.P(TR).No.941 of 2017 6 statement of the Manager on which the petitioner claims that the punishment order is relied upon was in fact not considered by the Inquiry Officer and therefore, no prejudice has been caused to the petitioner by non-furnishing of the same. He referred to page No.26 of the writ papers, which the petitioner claims to be a request for an opportunity for cross examine, but he submits that it is not a request, but it was only a statement made with regard to the recording of statement. He submits that the charges against the other delinquent employees were not similar as to the petitioner and therefore, the punishment imposed on the petitioner is reasonable and needs no interference. He also submitted that the past record of the petitioner was only seen for the purpose of quantum of punishment i.e., whether lenient view should be taken and not for the purpose of holding the petitioner as guilty of charges.
7. Having regard to the rival contentions and the material on record, this Court finds that on 30.05.2008, the petitioner had made request to allow to examine the Bank Manager as a witness and also to supply a copy of the PMD,J W.P(TR).No.941 of 2017 7 statement of the Manager, but the same was not furnished to him by the respondents. However, since the same was not relied upon by the respondents to hold the petitioner as guilty of charges, this Court is also of the opinion that no prejudice has been caused to the petitioner on this account. Further it is noticed that in the case of other co- delinquents, who were also found playing cards along with the petitioner, the punishment imposed was of postponement of increment for one year without cumulative effect. This Hon'ble Court in the case of D.Srinivas (cited supra) has held that where the charges are same against two officers, when the charges have been dropped against one officer, there is no reason for continuing the charges against the other officers and therefore, the action of the respondents in imposing penalty on the petitioner therein based on identical charges was held to be clearly an infraction of Article 14 of the constitution in so far as petitioner therein is concerned and was accordingly set aside on the ground of discrimination. In the case before this Court also, it appears to be an act of discrimination against the petitioner herein.
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8. As regards the other judgment relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court has held that non supply of the necessary documents vitiates the inquiry and when the disciplinary as well as appellate authorities were not supported by reasons, the orders are not sustainable.
9. In the case of A.C.Ravindran (Cited Supra), wherein the Hon'ble High Court has held that though the statements are cited in the list of documents, but the said persons are not added as witnesses, it is violation of principles of natural justice.
10. However, in view of the finding that no prejudice has been caused to the petitioner by such non furnishing of the statement, the above decisions do not come to the rescue of the petitioner. However, since it has been held that imposing a higher punishment on the petitioner for the very same charges is discrimination, the impugned order is liable to be set aside. In such circumstances, the natural corollary would be to remand the matter to the disciplinary authority for reconsideration of issue of punishment. However, in view PMD,J W.P(TR).No.941 of 2017 9 of the fact that considerable time has passed and in similar circumstances, the other delinquent employees have been punished with postponement of one annual increment without cumulative effect, this Court deems it fit and proper to modify the punishment imposed against the petitioner as postponement of one increment without cumulative effect. The respondents are directed to grant consequential benefits, if any, to the petitioner. The consequential order shall be passed within a period of three months from the date of receipt of a copy of this order.
11. 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.941 of 2017 10 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P (TR).No. 941 OF 2017 Dated: 11.11.2022 bak