HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.32199 of 2021
ORDER :
Petitioner is seeking directions to the respondents to finalise the proceedings initiated against him pursuant to the Memorandum of Charge issued vide G.O.Rt.No.570, dated 28.07.2018 and to promote him as a Manager from the date on which his immediate junior was promoted, with all consequential monetary benefits and seniority.
2. Heard Sri Goda Siva, learned Senior Counsel for petitioner and the learned Government Pleader for Municipal Administration and Urban Development, appearing for respondents.
3. Case of the petitioner is that he was appointed as a Junior Assistant on compassionate basis as his father expired while in service. Accordingly, he joined duty on 23.12.2011. Later, he was promoted as Senior Assistant in April, 2017. The next promotion post is Manager and the petitioner is senior-most in the category of Senior Assistant for being promoted as Manager. However, the respondents have promoted his junior by name Mr.D.Swamy on 2 JS, J W.P.No.32199 of 2021 05.02.2021, on the ground that disciplinary proceedings are pending against the petitioner.
4. It is stated that basing on the vigilance report dated 01.12.2016, the petitioner along with 27 other officers were charged with the allegation that they did not remit the taxes collected from the public in the account of the Municipality and misappropriated such funds by concealing the receipt books. The petitioner was issued with a charge memo vide G.O.Rt.No.570, dated 20.07.2018, which was served on him on 28.07.2018, for which, he submitted explanation on 25.08.2018 denying the charge. One year after submission of his explanation, the Government has issued G.O.Rt.No.442, dated 19.06.2019 appointing the inquiry officer to conduct inquiry against the 28 charged officers. It took one and half years for the inquiry officer to hold preliminary inquiry and it was held on 25.01.2021, on which date, he submitted a written explanation to the inquiry officer. The grievance of the petitioner is that the inquiry officer's report is not furnished to him so far and there is unexplained inordinate delay on the part of respondents in bringing the 3 JS, J W.P.No.32199 of 2021 proceedings to a logical conclusion. However, he came to know that the inquiry officer had submitted his report on 30.02.2021 and more than 4 officers were exonerated from the charges. Thus, the petitioner's case is that there are chances of his getting exonerated also, however, the respondents are selectively concluding the proceedings against some officers and they are not finalizing the proceedings against him, and in the meanwhile, the respondents are taking steps for filling up the vacancies of Manager by constituting the Departmental Promotion Committee and the seniority list of eligible Senior Assistants is called for. Hence, the present writ petition is filed seeking to direct the respondents to finalise the proceedings initiated against the petitioner, as his promotion is being stalled on the ground of pendency of disciplinary proceedings.
5. Counter affidavit is filed by the 2nd respondent stating that there were allegations that while working in Nalgonda Municipality, the petitioner and other officials of the said Municipality have caused loss to the tune of Rs.3,32,59,133/- by not remitting the taxes collected from the public into the account of 4 JS, J W.P.No.32199 of 2021 the Municipality during the years from 2011 to 2015. Therefore, Articles of Charge were framed against the petitioner vide G.O.Rt.No.570, dated 20.07.2018. It is stated that sufficient time was given to the petitioner to submit his statement of defence and thereafter, the Inquiry Officer and Presenting Officer were appointed vide G.O.Rt.No.442, dated 19.06.2019 and G.O.Rt.No.633, dated 04.12.2020 respectively. The inquiry officer has submitted the inquiry report on 30.06.2021, holding that all the three charges levelled against the petitioner are proved. The inquiry report was communicated to the petitioner vide Government Memo dated 12.01.2022 and in response to the same, the petitioner has also submitted his explanation on 10.02.2022. It is stated in the counter affidavit that since it is a common inquiry conducted against 28 officers involving an amount of more than Three Crores of Rupees, there is some delay in concluding the proceedings, which is neither willful nor wanton. It is stated that in the inquiry, it is proved that the petitioner has failed to reconcile the Chitta Register with remitted amount into the Municipality account and as an Accountant, he has miserably failed in his duty 5 JS, J W.P.No.32199 of 2021 and given scope for misappropriation of amount, and thus, caused loss to the Municipality. It is stated that the inquiry report is forwarded to the Government and the Government is to take appropriate decision with regard to imposing the punishment under the CCA Rules. It is further stated that since the charges levelled against the petitioner are of grave nature and the same are held proved in the inquiry beyond reasonable doubt, the petitioner is not eligible to be considered for promotion. Accordingly, he prayed for dismissal of the writ petition.
6. The record disclose that inquiry was initiated against 28 officers of a Municipality alleging that they misappropriated an amount of more than Three Crores of Rupees by not depositing the taxes collected from the public, in to the bank account of the Municipality, by manipulating the receipt books. The said allegations relate to the period from 2011 to 2015. The basis for initiation of inquiry proceedings was the vigilance report dated 01.12.2016. Charges were framed on 20.07.2018, Inquiry Officer was appointed on 19.06.2019, Presenting Officer was appointed on 04.12.2020, inquiry report was submitted on 30.06.2021, the same 6 JS, J W.P.No.32199 of 2021 was communicated to the petitioner on 12.01.2022, the petitioner has submitted his explanation to the inquiry report on 10.02.2022 and the matter is now pending with the Government for passing further orders. The case of the petitioner is that since the proceedings are pending for a long period, he is denied of promotion to the next post of Manager and that his junior, namely, Mr.D.Swamy was promoted as Manager, vide order dated 05.02.2021. On the other hand, the respondents contend that as the petitioner herein and 27 others were charged with the allegation of misappropriation of amount to the tune of more than Three Crores of Rupees and as the said act of misappropriation spread over the period from 2011 to 2015, it took some time for initiation of proceedings, examining the records and concluding the same. It is also the case of respondents that now the inquiry was completed holding that the charges levelled against the petitioner are proved, the petitioner has also submitted his explanation to the inquiry report on 10.02.2022 and the matter is pending with the Government for passing further orders. Though there is some force in the stand taken by the respondents that the delay in concluding 7 JS, J W.P.No.32199 of 2021 the proceedings was due to involvement of 28 officers in misappropriation of funds to the tune of more than Three Crores of Rupees over a period of five years i.e. from 2011 to 2015 as inquiry/investigation into such matter requires verification of records relating to many years and examination of the persons involved, at the same time, the petitioner shall not be denied promotion for a longer period. In this connection, the learned Senior Counsel for petitioner has relied on the judgment of Hon'ble Supreme Court in State of Punjab and others v. Chaman Lal Goyal 1. In the said case, when the inquiry was initiated after a long gap of 5½ years after the incident, the Hon'ble Supreme Court has ordered for promoting the petitioner therein subject to the result of the departmental inquiry and also fixed time for completion of disciplinary proceedings.
7. In view of the law laid down by the Hon'ble Supreme Court in the aforesaid judgment and in the facts and circumstances of the present case, this Court is of the considered view that the case of 1 (1995) 2 SCC 570 8 JS, J W.P.No.32199 of 2021 the petitioner can be considered for promotion subject to the outcome of the proceedings initiated against him.
8. Accordingly, this writ petition is disposed of directing the respondents to consider the case of the petitioner for promotion to the post of Manager from the date on which his junior was promoted. However, such promotion shall be subject to the outcome of the disciplinary proceedings initiated against the petitioner. The respondents are further directed to pass appropriate orders in the disciplinary proceedings insofar as petitioner is concerned, and conclude the same within a period of one year from today. No costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________ JUVVADI SRIDEVI, J Date: 16.10.2023 ajr