Telangana High Court
V.Chinnaiah vs Government Of Telangana on 15 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) NO.447 OF 2017
ORDER:
This writ petition has been filed by the petitioner seeking the following relief:
"... call for records relating to and connected with the impugned punishment of removal from service vide proceedings Rc.No.A1/935/95, dated 12.11.1999 (20.02.1998) and its consequential orders in Rc.No.A1/935/05, dated 22.02.2007 and Memo No.3244/ SED.Ser.A2/2011, dated 21.04.2015 of the 3rd and 1st respondents and set aside the same by holding as illegal, arbitrary, contrary to Rule 20 of APCS (CCA) Rules and violation of principles of natural justice apart from constitutional provisions of Articles 21 and 311 (2)(b) of the Constitution of India and consequently, direct the respondents to grant all consequential benefits such as (i) to treat the suspension period as on duty, (ii) pay and allowances from the date of removal to attaining the age of superannuation of retirement, (iii) pensionary benefits and pension from the date of retirement all other service benefits and to pass such other order or orders as this Hon'ble Court may deem fit and proper."
2. The brief facts leading to filing of the present petition are that the petitioner viz., V.Chinnaiah, was appointed as Grade-II Warden on 21.08.1978 in 2nd respondent-Social Welfare Department and became an approved probationer. While he was working as such at Government Social Welfare Boys Hostel (B), Wanaparthy of Mahabubnagar district, he was placed full additional charge of another two hostels, viz., Government Boys Hostel (A) and Vimukthi Hostel (Boys), Wanaparthy, in addition LNA,J WP (TR) NO.447 of 2017 2 to his regular duties from 1986 onwards and continued till he was placed under suspension by the 3rd respondent-District Collector, Mahabubnagar vide proceedings dated 04.07.1995.
3. While the matter stood thus, when the petitioner went to hospital to take treatment of his ill-health and in his absence, the ACB authorities conducted surprise check in the said hostels and taken away all the records and sent a report vide proceedings dated 01.11.1994 to the 3rd respondent, recommending to take departmental action against the petitioner. Based on the report, petitioner was placed under suspension vide proceedings dated 04.07.1995.
4. The 3rd respondent had issued article of charge memo in Rc.No.A1/Spl/782/95, dated 11.08.1995 in gross violation of sub-rules (3) and (4) of Rule 20 of APCS (CCA) Rules, 1991 (for short, 'the Rules'); that four charges were framed alleging that petitioner had trespassed into the office of Deputy Director, Mahabubnagar during late hours without prior permission of the higher authorities, had offered Rs.2,000/- as bribe to office attender for giving papers received from ACB against him and sent Sri Buchanna, Watchman to a hostel to bring the meals with mala fide intention to broke the almirah of inward section and to seal the documents and tamper the records and also LNA,J WP (TR) NO.447 of 2017 3 attempted to destroy the evidence and directed the petitioner to submit his explanation.
5. While the petitioner was about to submit his explanation to the above said charge memo, the 3rd respondent issued another charge memo in Rc.No.A1/935/95, dated 22.08.1995, framing as many as 11 charges alleging that stock of the rice received from the stock points were not entered into the stock registers and there was huge variation in opining balance and closing balance of rice and there was shortage of rice and also misappropriated the rice etc. Even before serving this charge memo to the petitioner, the 3rd respondent had appointed the Sub-Collector, Gadwal of Mahabubnagar district as Inquiry Officer vide proceedings dated 20.09.1995 and said proceedings are not communicated to the petitioner. Later, said inquiry officer issued another charge memo No.C/4272/95 without date in the month of November, 1995 in gross violation of all statutory rules, though he is not competent to do so, directing the petitioner to submit his explanation within ten days.
6. It is contended that the above charge memos do not contain imputation of charges, statement of misconduct, list of documents and list of witnesses etc., as required under rules. Hence, the charge memo also bad in law and any punishment LNA,J WP (TR) NO.447 of 2017 4 imposed based on the charge memos are also liable to be quashed since disciplinary proceedings are liable to be vitiated. Therefore, the impugned punishment of removal from service by 3rd respondent through impugned proceedings dated 12.01.1999 is liable to be quashed on this ground alone.
7. However, on receipt of memo from the inquiry officer, petitioner submitted his written statement of defence dated 08.03.1996 denying the charges and requested to drop the charges. It is contended that inquiry officer has not conducted inquiry by following the procedure under Rule 20 of the Rules, 1991 and submitted enquiry report dated 03.10.1997 without there being any evidence and held that seven charges have been proved out of ten charges and proposed for stoppage of two increments with cumulative effect and promotion also may be hold for ten years apart from recovery of cost of the rice allegedly misappropriated based on comparative statement, but not on evidence. However, the charges supposed to be held proved based on evidence adduced during the course of inquiry, but no enquiry was conducted as per the rules and no opportunity was given to the petitioner to defend his case. But, the 3rd respondent without examining the enquiry report with reference to Rule 20 and principles of natural justice and LNA,J WP (TR) NO.447 of 2017 5 without considering as to whether the charge memos issued by the disciplinary authorities are in accordance with sub-rules (3) and (4) of the Rule 20; that the explanation submitted by the petitioner was not considered by the 3rd respondent and without there being any evidence and enquiry, issued impugned proceedings dated 12.11.1999.
8. The petitioner contended that aggrieved by the said punishment, he preferred an appeal to the 2nd respondent; that while the said appeal was pending, criminal case in C.C.No.893 of 1995 for the offence under Sections 457 and 381 of IPC with regard to the same incident, which is the charge in the first article of charge dated 11.08.1995, was ended in conviction by the trial Court; that against said conviction, petitioner preferred appeal vide Crl.Appeal No.31/1999, which was dismissed and the petitioner preferred Criminal R.C.No.447 of 2004 before this Court. When it was pending, 2nd respondent had informed the petitioner vide memo dated 24.01.2005 that in view of conviction, his appeal was rejected. However, said Crl.R.C.No.447 of 2004 was allowed by this Hon'ble Court vide judgment dated 14.07.2005.
9. Consequent on acquittal, petitioner made several representations requesting the 2nd respondent to reinstate him LNA,J WP (TR) NO.447 of 2017 6 into service by disposing of his appeal, which was rejected on the ground of conviction; that 2nd respondent directed the 3rd respondent vide letter dated 06.01.2006 to take necessary action regarding reinstatement of the petitioner. But, no action has been taken and matter was kept pending. Hence, this Writ Petition.
10. The Tribunal while admitting the O.A., passed the interim relief dated 17.04.2013 directing the 1st respondent to pass appropriate orders, as per rules and on merits, on the report submitted by the 2nd respondent on 01.12.2009 and 25.03.2011 within a period of eight weeks from the date of receipt of copy of the order.
11. The 3rd respondent filed counter denying the para-wise averments made by the petitioner in the writ petition and contended that the respondents by following due procedure issued charge memos by the disciplinary authority and on conducting enquiry and on considering the explanation submitted by the petitioner, the disciplinary authority had rightly imposed punishment against the petitioner and finally, prayed to dismiss the O.A. LNA,J WP (TR) NO.447 of 2017 7
12. Later, consequent to abolition of A.P. Administrative Tribunal, the above O.A.No.2651 of 2013 was transferred to this Hon'ble Court and the same is re-numbered as W.P.(TR)No.447 of 2017.
13. Heard Sri C.Sai Reddy, learned counsel for petitioner and the learned Government Pleader for Services-I appearing for the respondents.
14. Learned counsel for petitioner submitted that petitioner retired from service on attaining the age of superannuation. He further submitted that petitioner was acquitted in criminal case by this Hon'ble Court vide Crl.R.C.No.447 of 2004, dated 14.07.2005 and therefore, petitioner is entitled to receive all the consequential benefits i.e., pension and pensionary benefits from the date of removal to till the date of retirement and also treat the suspension period as on duty.
15. Learned counsel for petitioner further submitted that the respondents failed to follow the procedure in appointing the enquiry officer as contemplated under rule 20 of the Rules, 1991 and the entire proceedings are vitiated on that sole ground and prayed to allow the writ petition.
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16. In support of the contention, learned counsel for petitioner relied on the following decisions:
i) Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha 1;
ii) S.Zabeda Parveen vs. A.P.Women's Co-operative Finance corporation, Hyderabad and another 2;
iii) B.Sanjeeva Reddy vs. Southern Power Distribution Co. of Telangana Ltd., Hyderabad and others 3;
(iv) Electronics Corporation of India Ltd., (ECIL), Hyderabad and another vs. H.K.Bhatia 4
17. On the other hand, the learned Government Pleader for respondents submitted that the proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Though the petitioner was acquitted in criminal case, he cannot escape from the departmental proceedings, where a charge relating to misconduct is being investigated, the factors in disciplinary proceedings are many, as such, an enforcement of discipline or to investigate the level of integrity of the delinquent, the standard of proof required in those proceedings is also different than that required in a criminal case; that while in the departmental proceedings, the standard of proof is one of 1 (2012) 11 SCC 565 2 2015 SCC Online Hyd 653 3 2023 (2) ALD 106 (TS) 4 2014 (6) ALD 134 (DB) LNA,J WP (TR) NO.447 of 2017 9 preponderance of probabilities, in a criminal case, the charge has to be proved beyond reasonable doubt. He therefore, prayed to dismiss the writ petition.
Consideration:
18. A perusal of the record discloses that petitioner was appointed as Grade-II Warden on 21.08.1978 and was placed full additional charge of two more hostels. The ACB authorities conducted surprise check in the said hostels and taken away all the records and sent a report vide proceedings dated 01.11.1994 to the 3rd respondent, recommending to take departmental action against the petitioner. Accordingly, basing on the report of the ACB authorities, the petitioner was placed under suspension vide proceedings dated 04.07.1995 by the 3rd respondent. A charge memo was issued on 22.08.1995 framing 11 charges by the 3rd respondent and that departmental enquiry was initiated and initially Sub-Collector was appointed as enquiry officer. However, the enquiry report was submitted by the Revenue Divisional Officer vide letter dated 03.10.1997 and basing on which, the 3rd respondent issued impugned proceedings.
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19. In B.Sanjeeva Reddy (supra), learned single Judge of this Hon'ble High Court held that "the enquiry officer has pre-judged and pre-determined the issue even before the submission of explanation by the employee to the show-cause notice and the same would amount to post-decisional hearing. Further, the competent authority was required to pass speaking orders by giving reasons for imposing penalty after considering the inquiry report, representation and other material concerning disciplinary proceedings on record, the respondent authority failed to do so and judged the issue at the stage of issuance of show-cause notice itself. Therefore, the learned Judge set aside the impugned order as being unreasoned, routine and without application of mind.
20. In Electronics Corporation of India Limited (supra), the Division Bench of erstwhile High Court of Andhra Pradesh at paragraph-14 held as under:
"14. A bare reading of the enquiry report would leave no manner of doubt that the enquiry officer had miserably failed to comply and adhere to the procedure prescribed in rules 18 and 19 of the rules in making the enquiry report. In other words, the so-called enquiry report cannot be termed as enquiry report in the eye of law. The duty of the disciplinary authority in considering the enquiry report is governed by Rule 35. ..."
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21. In S.Zabeda Parveen (supra), this Hon'ble High Court held as under:
"51. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of a department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient hold that the charges are proved.....
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57. In order to find an employee guilt of misconduct, the burden lies on the department to prove that the employee is guilty of such misconduct based on legal evidence. Unlike in a criminal case where proof beyond reasonable doubt is sine qua non for conviction of an accused, in departmental proceedings preponderance of probabilities is sufficient to find an employee guilty of misconduct.... "
22. In Chandrama Tewari v. Union of India 5 , the Hon'ble Apex Court held that enquiry must be in accordance with the rules and in just and fair manner, that the procedure at the enquiry must be consistent with the principles of natural justice. 5 1987 Supp. (1) SCC 518 LNA,J WP (TR) NO.447 of 2017 12
23. The other decision relied upon by the learned counsel for petitioner is distinguishable on facts and do not apply to the facts and circumstances of this case.
24. From the record and material placed on record, it appears that initially Sub-Collector, Gadwal was appointed as Enquiry Officer vide proceedings dated 20.09.1995. The enquiry officer issued another charge memo No.C/4272/95, without date in the month of November, 1995. Subsequently, the District Collector had withdrawn the appointment of the Sub-Collector as enquiry officer and the 3rd charge memo dated nil-11-1995 was subsequently withdrawn. Later, the Sub- Collector was again reappointed as enquiry officer.
25. It is relevant to note that enquiry officer has to conduct the enquiry as per due process, service rules, and in unbiased manner. However, in the present case, the enquiry officer issued charge memo though he is not competent to issue the same being enquiry officer, which would only infer that the enquiry officer is pre-determined.
26. Further, the criminal case registered against the petitioner in C.C.No.893 of 1995 was ended in conviction by the trial Court on 02.02.1999 and the appeal filed by the petitioner LNA,J WP (TR) NO.447 of 2017 13 in Crl.Appeal No.31/1999 was also dismissed on 11.03.2004. The petitioner submitted two appeals dated 07.04.2004 and 16.06.2004 against the punishment of removal from service. The 2nd respondent vide Memo dated 07.07.2004 rejected the said appeals on the ground that he was convicted by the Court of Law and thus, there cannot be an appeal against such order.
27. The petitioner preferred Crl.R.C.No.449 of 2004 before this Court and the same was allowed by this Court by judgment dated 14.07.2005. Petitioner submitted several representations to the 2nd respondent for reinstatement into service in the light of acquittal of the petitioner in Crl.R.C.No.449 of 2004, however, the same were not considered.
28. It is relevant to mention that Sub-Collector is the enquiry officer. However, the Revenue Divisional Officer, who is no way concerned with the enquiry, had submitted enquiry report to the Collector for further action, which is contrary to the procedure, CCA Rules and thus, is improper and impressible.
29. During the course of hearing, the learned counsel for petitioner specifically brought to the notice of this Court the above irregularity, however, the learned Govt. Pleader could not LNA,J WP (TR) NO.447 of 2017 14 give any clarification on this aspect. Therefore, it has to be held that the entire enquiry proceeding itself vitiated.
30. In the light of the above facts, circumstances, discussion and settled legal position, in considered opinion of this Court, the procedure followed by the enquiry officer is opposed to the well-settled legal principles, besides Rule 20 and other CCA Rules thereby rendering the enquiry a nullity. Accordingly, the proceedings dated 12.01.1999 awarding punishment of removal from service and its consequential orders in Rc.No.A1/935/05 dated 22.02.2007 and Memo dated 21.04.2015 of 3rd respondent and 1st respondent, respectively, are liable to be set aside and are accordingly, set aside.
31. In the present case, petitioner was suspended on 04.07.1995 and was removed from service on 12.01.1999. Petitioner was convicted in criminal case on 02.02.1999 and was acquitted on 14.07.2005. On representation given by the petitioner, respondent no.2 addressed a letter dated 06.01.2006 to respondent no.3 with instructions to take necessary action for reinstatement of the petitioner in view of the acquittal in criminal case. However, petitioner has not been reinstated into service and in the mean while, he reached the age of superannuation.
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32. However, the fact remains that whatever be the reason, he has not served the State during the period between dismissal from service and his attaining the age of superannuation. Therefore for this interregnum, he is not entitled to be paid salary on the principle of 'no work, no pay'. That being said, the subject period needs to be reckoned only for the purpose of fixation of pension & payment of terminal benefits, that have over the years accumulated.
33. In the light of the above, Writ Petition is partly allowed with the following directions:
i) The proceedings dated 12.01.1999 awarding punishment of removal from service and its consequential orders in Rc.No.A1/935/05 dated 22.02.2007 and Memo dated 21.04.2015 of 3rd respondent and 1st respondent, respectively, are set aside;
ii) Petitioner is entitled to arrears of pay, increments and consequential benefits for the suspension period i.e., from 04.07.1995 to 12.01.1999;
iii) Petitioner is entitled to continuity of service from 13.01.1999 for the purpose of pension and terminal benefits till the date of his superannuation;
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iv) The respondents are directed to comply with the above directions within a period of eight weeks from the date of receipt of copy of this order.
There shall be no order as to costs. Pending miscellaneous applications if any shall stand closed.
_________________________________ LAXMI NARAYANA ALISHETTY,J Date: 15.02.2024 Kkm LNA,J WP (TR) NO.447 of 2017 17 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION (TR) NO.447 OF 2017 Date:15.02.2024 kkm