Telangana High Court
Syed Shamshudin vs State Of Telangana And 3 Others on 14 June, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.18949 of 2022
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"...to issue writ or order more particularly Writ of Certiorari calling for the records pertaining to the Impugned order vide D.O.No.1443-L and O/B8/0023/2018-22 dated 19.02.2022 passed by the 3rd Respondent and consequently direct the respondents to reinstate the petitioner into service by setting aside the order passed by the 3rd respondent dated 19.02.2022 and may pass..."
2. Heard Sri A.M. Qureshi, learned Senior Counsel, representing Ms. Saleha Begum, learned counsel for the petitioner and Sri S. Rahul Reddy, learned Special Government Pleader for Home (Services), appearing on behalf of the respondents.
3. Learned Senior Counsel for the petitioner submits that while the petitioner was working in the office of respondent No.3 as a Superintendent, a charge memo dated 09.08.2019 was issued to him alleging that he and one Mr. Siva Kumar, Junior Assistant, have committed gross misconduct, showing lack of integrity and moral turpitude towards legitimate duties, indulging in incorrect practices by collecting money from four On-Duty Home Guards, and the petitioner was asked to submit his explanation. In response to the same, the petitioner 2 PK,J W.P.No.18949 of 2022 submitted his explanation on 03.09.2019 denying all the allegations made against him, requesting to provide him an opportunity of personal hearing and to drop all further proceedings on the charge memo. Learned Senior Counsel vehemently contends that in spite of submitting his explanation, neither respondent No.3 nor the enquiry officer did choose to issue a notice to the petitioner to enable him to prove the charges against him as false. Further, the petitioner had made a representation on 16.06.2021 with a specific request to supply the copies of Preliminary Enquiry statements of On-Duty Home Guards, and also to enable him to attend the enquiry. However, without considering the same and without providing him an opportunity of personal hearing, the respondents have conducted the enquiry and the enquiry officer submitted his report holding the charges against the petitioner as proved, and basing on the said report, respondent No.3 has erroneously passed the impugned order dated 19.02.2022 imposing the punishment of dismissal from service.
4. Learned Senior Counsel further contends that the action of respondents in not providing the petitioner an opportunity of personal hearing, in spite of acknowledging his defense statement dated 03.09.2019, is clearly in violation of principles of natural justice, and mere recording by the enquiry officer that the petitioner had not attended for enquiry does not dispense with the statutory requirement of complying the 3 PK,J W.P.No.18949 of 2022 principles of natural justice, more particularly, when the representation of the petitioner dated 16.06.2021 would clearly show that the petitioner has been making several representations to provide him an opportunity of hearing, so as to substantiate that the allegations leveled against him are false. He further contends that the finding given by respondent No.3 in the impugned order that the petitioner had not attended before the enquiry officer and therefore, they have conducted an ex parte oral enquiry, itself shows that the respondents, more particularly, respondent No.4 did not conduct an enquiry by giving reasonable opportunity to the petitioner to defend his case, and the same in gross violation of principles of natural justice. On this ground alone, the impugned order is liable to be set aside, as it was passed without recording any reasons, much less any valid reason, in view of the law laid down by the Constitution Bench of the Hon'ble Apex Court in a judgment reported in S.N. Mukharjee v. Union of India 1. Therefore, learned Senior Counsel prays this Court to allow the present writ petition by setting aside the impugned order vide D.O.No.1443 No.L&O/B8/0023/2018-22 dated 19.02.2022 issued by respondent No.3. In support of his contentions, learned Senior Counsel relied on the following decisions of the Hon'ble Apex Court:
i. L.K. Verma v. H.M.T. Ltd and Anr. 2, 1 AIR 1990 SC 1984 2 AIR 2006 Supreme Court 975 4 PK,J W.P.No.18949 of 2022 ii. Union of India and others v. Ramzan Khan 3, iii. Managing Director, ECIL v. B. Karunakar 4, iv. U.P. State Spinning Co. Ltd. v. R.S. Pandey and another 5
5. Per contra, learned Special Government Pleader for Home, appearing for the respondents, submits that respondent No.4 submitted a Note dated 19.04.2018, which was forwarded by respondent No.2, informing that while the petitioner and co-delinquent were working at the Home Guards Office, they indulged in corruption activities by collecting Rs.50,000 + Rs.30,000 (total of Rs.80,000/-) from four On-Duty Home Guards, for their reinstatement, and therefore, disciplinary action was recommended against the petitioner and the co-delinquent. Accordingly, they were placed under suspension vide order dated 19.06.2018. Thereafter, the petitioner and the co-delinquent were handed over with an Article of Charges under Rule 20 of the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991, vide charge memo dated 09.08.2019, calling for their defense statements. In response to the same, the petitioner submitted his written statement of defense on 03.09.2019 denying the charges leveled against him and had requested for personal hearing. Considering the fact that the co-delinquent pleaded guilty of the charge and the petitioner denied the charges by shifting the liability on co-
3 (1991) 1 SCC 588 4 AIR 1994 Supreme Court 1074 5 (2005) 8 SCC 264 5 PK,J W.P.No.18949 of 2022 delinquent, the disciplinary authority decided to conduct an enquiry so as to elicit the truth and as per the provision of Rule 20 (5)(b) of the TCS (CC&A) Rules, since the petitioner had denied the charges under Rule 20 (2), an Oral Enquiry was ordered against the petitioner and the co-
delinquent, duly appointing the Assistant Commissioner of Police, Sultan Bazar Division, Hyderabad, as the Enquiry Officer vide proceedings dated 04.11.2019.
6. Learned Special Government Pleader further contends that the contention of the petitioner that without considering his representation dated 16.06.2021, wherein, he requested to supply the copies of Preliminary Enquiry statements of the On-Duty Home Guards to attend the enquiry, is not correct, and in fact, the Enquiry Officer, vide letter dated 23.01.2021, had informed the petitioner that the letter of the Commandant Home Guards, which is also called the Preliminary Enquiry Report, was already cited as the prosecution exhibit by respondent No.3 and was already supplied to the petitioner by respondent No.3, and also stated that there is no other document available with him, and directed to attend the oral enquiry, failing which, it is presumed that the petitioner has no explanation in his defense and further action will be taken. However, having acknowledged the same on 27.01.2021, the petitioner failed to attend the oral enquiry. The enquiry authority issued notices 6 PK,J W.P.No.18949 of 2022 dated 27.11.2019, 06.12.2019, 30.01.2020, 12.08.2020, 08.09.2020, 19.01.2021, 29.01.2021 and 09.02.2021, to the petitioner and co- delinquent to attend the oral enquiry for recording the statement of witnesses, but the petitioner, even after acknowledging the notices dated 27.11.2019, 06.12.2019, 30.01.2020 and 19.01.2021, had not attended the oral enquiry. Accordingly, the enquiry authority secured the presence of the witnesses, recorded their detailed statements, and basing on the documentary evidence i.e., exhibited items from 1 to 19, and as per the evidence available with him, the enquiry officer held the charges against the petitioner and the co-delinquent as proved vide his letter No.02/OE/SBR-D/2020 dated 03.06.2021.
7. He further submits that as per Rule 21 of the TCS (CC&A) Rules, the findings of the enquiry authority were supplied to the petitioner and the co-delinquent vide office order dated 09.07.2021, calling for their further representations, if any, within ten days from the date of its receipt, and subsequently, having acknowledged the same on 19.07.2021, the petitioner submitted his further representation on 07.08.2021 denying the proven charges. Thereafter, on consideration of the said representation, along with the connected records and minutes of the oral enquiry conducted against the petitioner and the co-delinquent, the disciplinary authority has agreed with the findings of the enquiry officer who held the 7 PK,J W.P.No.18949 of 2022 charges against the petitioner and the co-delinquent as proved. Therefore, the disciplinary authority passed the impugned order dated 19.02.2022, awarding the punishment of dismissal from service on the petitioner and the co-delinquent and the period of suspension from 19.06.2018 to 19.02.2022 was treated as not on duty. As such, the respondents are justified in passing the impugned order dated 19.02.2022.
8. He further submits that the contention of the petitioner that he was not paid any subsistence allowance from the date of his suspension till the date of passing of the impugned order is not correct. As per the provision of FR 53(1)(a), the petitioner is entitled for payment of subsistence allowance, subject to submitting a non-employment certificate to the effect that the petitioner is not engaged in any other employment, business, profession or vocation as per the provisions of FR 53(2). However, the petitioner failed to submit the non-employment certificate, which is mandatory as per provisions of FR 53(2). Had the petitioner submitted the said certificate as required, his case would have been examined and considered for payment of subsistence allowance. However, since he failed to produce the same, he was not paid any subsistence allowance. He further contends that the TCS (CC&A) Rules provide ample opportunities to the petitioner to challenge orders of the disciplinary authorities by way of filing appeal/revision petitions before the competent authorities. As per 8 PK,J W.P.No.18949 of 2022 Rule 35 of the TCS CC&A Rules, the petitioner could have preferred an appeal to the appellate authority i.e., Director General of Police, Hyderabad, within three months from the date of receipt of the impugned order. In the present case, the petitioner acknowledged receipt of the impugned order on 26.02.2022. However, he did not choose to prefer an appeal, instead, he has straightaway approached this Court and filed the present writ petition. As such, the writ petition is not maintainable and prays this Court to dismiss the present writ petition.
9. This Court has taken note of the rival submissions made by the learned counsel appearing for the respective parties and perused the material on record.
10. The record reveals that respondent No.3, being the disciplinary authority, had issued the charge memo dated 09.08.2019 alleging the following charge:
"That Sri Syed Shamsuddin, Officer Superintendent, Home Guards Organizations, Hyderabad had demanded Rs.1,20,000/- as bribe from (4) ODHGs viz 1.A.Raj Kumar, ODHG 3770 of Octopus Telangana,
2.D.Kumar Yadav, ODHG 2774 of Octopus Telangana, 3.K.Ravi Kumar ODHG 8927 of Octopus Telangana and 4.B.Naresh Kumar, ODHG 2781 of Octopus A.P. for issue of orders for their reinstatement/taken on duty and accepted Rs.80,000/- (Rs.50,000/- on 10.02.2018 at Gokul Bar & Restaurant, Kachiguda and Rs.30,000/- on 28.02.2018 at City Civil Court at their instance through Sri S.Shiva Kumar, Jr. Asst. Home Guards Organization, Hyderabad. Thus, they have exhibited gross reprehensible misconduct lack of integrity, involving moral turpitude, tarnished the image of the Department, behaved in a manner which is unbecoming of a Government Employee and also placed their official position in an embarrassment and thereby contravened Rule 3(1) (2) (3) of TCS (Conduct) Rules, 1964."9
PK,J W.P.No.18949 of 2022
11. In response to the said charge memo, the petitioner submitted his written statement of defense on 03.09.2019, denying the said charge. However, as the disciplinary authority was not convinced with his explanation, they proposed to conduct a detailed enquiry against the petitioner and the co-delinquent, under Rule 20(2) of the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991, and ordered for conducting an oral enquiry by appointing respondent No.4 as the enquiry officer vide proceedings dated 04.11.2019. Thereafter, the enquiry officer has issued notices to the petitioner and the co-delinquent on 27.11.2019, 06.12.2019, 30.01.2020, 12.08.2020, 08.09.2020, 19.01.2021, 29.01.2021 and 09.02.2021. In spite of acknowledging the notices dated 27.11.2019, 06.12.2019, 30.01.2020 and 19.01.2021, the petitioner himself had failed to attend the enquiry. Therefore, the contention of the petitioner that the enquiry was conducted without providing him a reasonable opportunity to defend his case, amounting to violation of principles of natural justice, cannot be countenanced. It is evident from the record that the enquiry report was supplied to the petitioner and on acknowledging the same, the petitioner submitted his further representation on 07.08.2021. From the above, it is clear that the petitioner was given ample opportunity of hearing before passing the impugned order of dismissal from service, and the petitioner himself failed to avail the said opportunity provided by the 10 PK,J W.P.No.18949 of 2022 respondents in accordance with rules. As such, it is held that there is no violation of principles of natural justice on the part of the respondents in passing the impugned order dated 19.02.2022.
12. The record further discloses that despite giving ample opportunity to the petitioner for defending his case, he failed to appear before the enquiry officer, as such, an exparte oral enquiry was conducted and enquiry officer concluded the enquiry holding the charge leveled against the petitioner as proved. Basing on the said enquiry report, the major penalty of dismissal from service was imposed on the petitioner vide impugned order dated 19.02.2022. Further, as per Rule 35 of the TCS (CC&A) Rules, the petitioner had the remedy of preferring an appeal/revision petition before the appellate authority i.e., Director General of Police, Hyderabad. However, he failed to exhaust the said remedy and approached this Court by way of filing the present writ petition.
13. In Whirlpool Corpn. v. Registrar of Trade Marks 6, the Hon'ble Apex Court has held as under:
The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the 6 (1998) 8 SCC 1 11 PK,J W.P.No.18949 of 2022 enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
A Constitution Bench of the Hon'ble Supreme Court in A. V. Venkateswaran, Collector of Customs. Bombay v. Ramchand Sobhraj Wadhwani and Anr., (AIR 1961 SC 1506) held as under:
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".12
PK,J W.P.No.18949 of 2022 Another Constitution Bench of the Hon'ble Supreme Court in the decision reported in Calcutta Discount co. Ltd. v. Income Tax Officer Companies Distt, (AIR 1961 SC 372) observed as under:
"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction Under Section 34 I.T. Act".
14. Furthermore, in M/s. Srini Pharmaceuticals Pvt. Ltd. v. Union of India 7, a Division Bench of this Court has specifically held that the writ jurisdiction of a High Court under Article 226 of the Constitution of India cannot be invoked if there is an efficacious alternative remedy available to the aggrieved party. However, it was also held that existence of an alternative remedy is not an absolute bar on the power of the writ jurisdiction of a High Court under Article 226 of the Constitution of India and the said power is to be invoked only in exceptional cases and extraordinary circumstances. Since the petitioner herein has failed to make out a case of exceptional circumstances, this Court declines to invoke its writ jurisdiction under Article 226 of the Constitution of India. As such, the judgments relied on the by learned Senior Counsel for the 72020 SCC OnLine TS 3396 13 PK,J W.P.No.18949 of 2022 petitioner are of no avail to him, and the writ petition is liable to be dismissed as not maintainable.
15. Accordingly, the Writ Petition is dismissed. However, since the petitioner had not exhausted the appeal remedy available to him, this Court deems it fit and proper to grant liberty to the petitioner to approach the appellate authority for redressal of his grievance, if he is so advised, within a period of four (04) weeks from the date of receipt of a copy of this order, in which event, the appellate authority shall decide the appeal on merits and pass appropriate orders thereon, strictly in accordance with law, without being influenced by the observations made by this Court in this order.
Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs.
___________________________ PULLA KARTHIK, J Date: 14.06.2024.
GSP