Telangana High Court
D. Ramachander, vs The State Of Telangana on 14 June, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.14373 of 2023
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"...to issue a direction, order or writ more particularly one in the nature of Certiorari a. Call for all the relevant and connected records relating to G.O. Ms. No. 14, School Education (Vigilance), dated 12.4.2023 of the 1st Respondent and quash or set aside the same holding it to be arbitrary, illegal, lacking in jurisdiction, unjust, violative of principles of law and violative of Articles 14 and 16 of the Constitution of India;
b. Consequently, direct that the Petitioner is entitled to all the benefits including seniority and monetary benefits that flow from out of setting aside G.O. Ms. No. 14, School Education (Vigilance), dated 12.4.2023 of the 1st Respondent including the release of annual grade increments, revision of pay scales in 2005 and 2010 and special grade increments together with interest with quarterly rests from the date on which they become due and payable till the actual date of payment..."
2. Heard Sri Goda Siva, learned Senior Counsel, representing Ms. Goda Ramalakshmi, learned counsel for the petitioner, and learned Government Pleader for Services, appearing on behalf of respondent Nos.1 and 2.
3. Learned Senior Counsel for the petitioner submits that the petitioner was appointed as a Junior Stenographer in the office of respondent No.2 in 1992 after completing his intermediate, through the erstwhile Andhra Pradesh State Public Service Commission. Thereafter, he was promoted as a Senior Assistant on 01.01.2007, and while working as such, a complaint was filed by one of the employees alleging that the petitioner has produced a 2 PK,J W.P.No.14373 of 2023 fake degree certificate to get advancement increments and promotion to the post of Senior Assistant. As a result, a charge memo was issued to him on 08.05.2007, and he was suspended from duty on 05.05.2008. Later, he was reinstated into service on 03.03.2009. Further, on the very same subject matter, a criminal case was registered against him for the offences punishable under Sections 467, 471 and 420 of the Indian Penal Code, 1860, and the same came to be numbered as C.C.No.1023 of 2008 on the file of the learned VI Additional Chief Metropolitan Magistrate, Hyderabad, and after trial, the said case ended in acquittal vide judgment dated 03.08.2010. Since the allegations in the charge memo dated 08.05.2007 and the criminal case were one and the same, the Disciplinary Authority dropped further action on the charge memo. However, respondent No.2 issued another charge memo dated 25.02.2010 reiterating the very same allegations as the previous charge memo dated 08.05.2007. Assailing the same, the petitioner filed O.A.No.1421 of 2014 before the erstwhile Andhra Pradesh Administrative Tribunal and the Tribunal, vide order dated 10.03.2015, set aside the charge memo dated 25.02.2010, with an observation that the respondents were not precluded from proceeding with the enquiry following Rule 20 of A.P.C.S. (CCA) Rules. Based on this observation, respondent No.2 issued a fresh charge memo dated 18.03.2017, to initiate a fresh enquiry against the petitioner, for which, the petitioner has submitted a detailed written statement stating that he cannot be 3 PK,J W.P.No.14373 of 2023 subjected to repeated enquiries on the very same charge. Despite the objection of the petitioner, instead of dropping further action, respondent No.2 has appointed an Enquiry Officer and a Presenting Officer to conduct an enquiry against the petitioner. After conducting the enquiry, the Enquiry Officer submitted his report on 21.08.2017 holding that certain allegations were partially proved. The said report, along with a tentative decision, was communicated to the petitioner by respondent No.2, and thereafter, the disciplinary authority i.e., respondent No.2 issued proceedings dated 16.09.2017 imposing a major penalty of reduction to lower time scale of pay, grade, post or service i.e., Junior Stenographer, and the excess payments made to him in the cadre of Senior Assistant w.e.f., 01.01.2002 were recovered from his pay and allowances. Aggrieved by the same, the petitioner filed W.P.No.19117 of 2019 and the same is pending adjudication before this Court. However, honouring the earlier part of the order dated 16.09.2017, the petitioner joined duty as Junior Stenographer and submitted the joining report on 21.09.2017.
4. Learned Senior Counsel further submits that the monetary benefits due to the petitioner were not being released to him. As such, he filed W.P.No.15537 of 2019 before this Court seeking to release 16 annual grade increments and the revised pay scales of 2005 and 2010. The said Writ Petition was disposed of vide order dated 24.03.2019, directing the 4 PK,J W.P.No.14373 of 2023 respondents therein to consider the case of the petitioner for releasing the said benefits by passing appropriate orders on the representations of the petitioner dated 04.07.2014 and 11.07.2019, in accordance with law. However, since the aforesaid order was not implemented, the petitioner was constrained to file C.C.No.1540 of 2019, wherein, this Court was pleased to issue notice on 15.11.2019 and directed the matter to be listed on 13.12.2019. While the matter stood thus, respondent No.1, issued Memo No.8613/SE/Vigilance/2005 dated 29.11.2019, and acting on the same, respondent No.2 issued proceedings No.203/Estt.1/2014 dated 09.12.2019 cancelling the penalty issued on 16.09.2017, on the ground that there has been a direction from respondent No.1 that the penalty imposed on the petitioner is insufficient. Questioning the legality and validity of the said proceedings, the petitioner filed W.P.No.28123 of 2019, and this Court was pleased to grant interim suspension of the same vide order dated 20.12.2019. While so, respondent No.2 issued a show-cause notice dated 13.12.2019 calling for an explanation from the petitioner as to why the penalty of dismissal from service shall not be imposed upon him. The petitioner submitted his explanation to the show-cause notice dated 13.12.2019 requesting respondent No.2 to drop further action in the matter, in the light of the interim suspension granted by this Court. However, exercising the power vested in it under Rule 40 of the Telangana Civil Servants (Classification, Control and Appeal) Rules, respondent No.1 issued 5 PK,J W.P.No.14373 of 2023 a show-cause notice vide memo No.8613/SE.Vig/2005 dated 16.01.2020 proposing to enhance the penalty that was imposed on the petitioner by respondent No.2 vide earlier proceedings dated 16.09.2017, to that of dismissal from service, and the petitioner was called upon to submit his explanation. Questioning the said show-cause notice, the petitioner filed W.P.No.1192 of 2020 and the same was disposed of by this Court vide order dated 04.02.2020 directing the Government to objectively consider the explanation of the petitioner without regard to paragraph 7 of the said show- cause notice, and to take appropriate decision as warranted by law. In response to the abovesaid show-cause notice, the petitioner submitted an additional reply on 13.02.2020 along with his earlier reply dated 31.01.2020. However, without considering the same and without taking into consideration the advice of the Public Service Commission dated 29.12.2020, respondent No.1 has issued the impugned order vide G.O.Ms.No.14, School Education (Vigilance) Department, dated 12.04.2023 dismissing the petitioner from service.
5. Learned Senior Counsel further contends that decision of respondent No.1 to cancel the penalty order dated 16.09.2017 seems to be a knee-jerk reaction to the notice that was issued in C.C.No.1540 of 2019 as the said penalty imposed on 16.09.2017 was already acted upon and the petitioner submitted his joining report to the reverted post on 21.09.2017 itself. Thus, 6 PK,J W.P.No.14373 of 2023 the action of the respondents in reopening the case relating to the penalty imposed way back in the year 2017 is lacking in its bona-fides. The entire process was initiated only after receiving the notice in the Contempt Case, which implies that the penalty is not for the proven misconduct. He further contends that the decision of respondent No.1 to issue Memo dated 29.11.2019, which had the power to revise the orders passed by the Disciplinary Authority, was not legitimate as they failed to follow the proper procedure as contemplated under law. Furthermore, the action of respondent No.1 in issuing the show-cause notice dated 16.01.2020 and passing the order of dismissal amounts to violation of interim order of this Court dated 20.12.2019 in W.P.No.28123 of 2019. Therefore, the impugned order is passed with a malafide intention and the same is in violation of Articles 14 and 21 of the Constitution of India and principles of natural justice. He further submits that one Mr. AVBS Anand, Publication Assistant in the office of respondent No.2 also submitted a certificate of graduation in Arts in 1998, issued by B.R. Ambedkar Open University. An entry was also made to that effect in his service book. Later, the said entry was deleted by entry dated 13.07.2001, and the respondents had been continuing him in service. The same indicates that the treatment of misconduct is not meted out with uniform penalty. Therefore, learned Senior Counsel prays this Court to allow the present writ petition by setting aside the impugned order dated 12.04.2023.
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PK,J W.P.No.14373 of 2023
6. Per contra learned Government Pleader for Services submits that on 21.01.2005, the respondents have received a complaint from one Mr. K. Ram Brahmam that the Degree certificate of the petitioner issued by the Andhra University bearing registration No.10735, is a fake one, and basing on the same, the petitioner got promotion to Senior Assistant and got sanctioned advance increments. On the basis of the said complaint, a charge memo, vide proceedings Rc.No.121/Estt.1/2005-6 dated 08.05.2007, was issued to the petitioner framing six charges against him. In response to the said charge memo, the petitioner has submitted his defense statement on 25.05.2007, denying all the six charges. However, as the charges were serious in nature, he was placed under suspension w.e.f., 05.05.2008, and criminal action was initiated by the CB-CID and a calendar case vide C.C.No.1023 of 2008 was filed against him. However, in pursuance of the order of the erstwhile Andhra Pradesh Administrative Tribunal dated 16.09.2008 in O.A.No.3777 of 2008, the petitioner was reinstated into service vide proceedings dated 02.03.2009, which was subject to outcome of the criminal case. Thereafter, on the ground of 'benefit of doubt', the learned VI Additional Chief Metropolitan Magistrate had acquitted the petitioner vide judgment dated 03.08.2010, and since no appeal was also preferred against the said acquittal order, the petitioner was continued in service. While passing the order, the APAT gave an observation that the said order did not preclude the respondent authorities therein from proceeding further with the 8 PK,J W.P.No.14373 of 2023 enquiry following Rule 20 of the APCS (CC&A) Rules. As such, an enquiry was conducted and the enquiry officer submitted his report on 21.08.2017 holding that the charges leveled against the petitioner as proved, and basing on the said report, a major penalty of reduction to lower time scale of pay, grade, post or service i.e., Junior Stenographer, was imposed on the petitioner vide proceedings dated 16.09.2017. Challenging the correctness of the said punishment order, the petitioner filed W.P.No.19117 of 2019, and the same is pending adjudication before this Court.
7. Learned Government Pleader further submits that respondent No.1, being the appellate authority can call for the records and based on the gravity of charges leveled against the employees like the petitioner herein, can impose any punishment and seek ratification in that regard. Further, as per the direction of respondent No.1 that the penalty imposed on the petitioner is insufficient, respondent No.2 has issued proceedings dated 09.12.2019 cancelling the earlier order of penalty dated 16.09.2017 and further, proposing to impose the punishment of dismissal from service. Challenging the said proceedings, the petitioner filed W.P.No.28123 of 2019, wherein, this Court, vide interim order dated 20.12.2019 in I.A.No.1 of 2019, granted interim suspension of the proceedings issued by respondent No.2 dated 09.12.2019, and the said writ petition is pending adjudication. Subsequently, respondent No.1 issued a show-cause notice to the petitioner 9 PK,J W.P.No.14373 of 2023 calling for explanation as to why the penalty of dismissal could not be imposed on him. Challenging the same, the petitioner filed W.P.No.1192 of 2020, and the same was disposed of vide order dated 04.02.2020 directing the Government to consider the explanation of the petitioner and pass orders as warranted by law. In pursuance of the same, the petitioner has submitted his explanation to the show-cause notice on 31.01.2020 that was received on 13.02.2020, and since the said explanation of the petitioner was not convincing, keeping in view the gravity of charges, the impugned order is passed.
8. Learned Government Pleader further submits that a mere acquittal in the criminal case based on the ground of benefit of doubt, cannot be a ground to challenge the punishment order for the reason that in a criminal case, prosecution has to prove the case beyond reasonable doubt, whereas, in departmental proceedings, the charges have to be proved preponderance of probabilities. Further, insofar as Mr. AVBS Anand is concerned, he was appointed as a Publication Assistant on 02.01.1886, based on his intermediate qualification. Later, he obtained B.A. certificate from Agra University. However, on enquiry, it was found to be a forged one. Therefore, his promotion basing of the degree certificate was cancelled. Subsequently, he retired from service on 28.02.2011. As such, the contention of the petitioner that Mr. AVBS Anand is a similarly situated person, and the 10 PK,J W.P.No.14373 of 2023 petitioner is also entitled for the same benefit cannot be a ground for the mistake committed by him, which is grave in nature. Hence, learned Government Pleader for Services prays this Court to dismiss the present writ petition as devoid of merits.
9. This Court has taken note of the rival submissions made by the learned counsel for respective parties and perused the material available on record.
10. Admittedly, the disciplinary authority has initiated action against the petitioner on receipt of a complaint from one Mr. K. Rama Brahmam, and placed the petitioner under suspension w.e.f., 05.05.2007. Subsequently, a Charge Memo dated 08.05.2007 was issued to the petitioner and criminal action was also initiated against him. Later, pending enquiry, the petitioner was reinstated into service on 03.03.2009. Thereafter, vide judgment dated 03.08.2010 passed by the VI Additional Chief Metropolitan Magistrate, Hyderabad, in C.C.No.1023 of 2008, the petitioner was acquitted from the charges leveled against him. The record further discloses that as the charges in the criminal case and departmental proceedings were based on the same cause of action, the disciplinary authority has dropped further action in pursuance of the charge memo dated 08.05.2007, and issued another charge memo on 25.02.2010 alleging the very same charges. Aggrieved by the same, the petitioner approached the erstwhile Andhra 11 PK,J W.P.No.14373 of 2023 Pradesh Administrative Tribunal and filed O.A.No.1421 of 2014, which was disposed of vide order dated 10.03.2015 and the operative portion of the said order is extracted hereunder:
"16. Having regard to the facts and circumstances and foregoing reasons, the impugned Charge Memo., dated 25.2.2010., is liable to be set aside and it is hereby set aside and the respondents are not precluded to proceed with enquiry, following Rule 20 of A.P.C.S. (CC&A) Rules."
11. In pursuance of the said order, the respondents have issued a fresh Charge Memo dated 18.03.2017 proposing to initiate a fresh enquiry in the matter. Subsequently, after conducting enquiry, the enquiry officer has submitted his report on 21.08.2017 holding some of the charges as proved and some others as partially proved. Basing on the said report, respondent No.2 has issued the proceedings in Rc.No.203/Estt.1/2014 dated 16.09.2017, whereby, a major punishment was imposed on the petitioner, which reads as under:
"...major punishment of Reduction to Lower time of Scale of Pay, grade, Post or Service, i.e. Junior Stenographer is hereby imposed under Rule 9 (Vii) (b) of CCA Rules 1991 with effect from 01.01.2002 i.e., from the date of promotion to Senior Assistant cadre. Any excess payment is made with regard to the award of promotion and sanction of Degree allowances shall be recovered from the pay and allowances of the incumbent."
12. Aggrieved by the same, the petitioner filed W.P.No.19117 of 2019, which is pending adjudication before this Court. Here, it is pertinent to note 12 PK,J W.P.No.14373 of 2023 that in pursuance of the said punishment order, the petitioner has already joined duty in the lower cadre i.e., Junior Stenographer, on 21.09.2017. Hence, it can be construed that the order of punishment dated 16.09.2017 was implemented by the respondents and the aforesaid W.P. was filed by the petitioner after a period of almost two years. Thereafter, the petitioner submitted his representation to the respondent authorities on 04.07.2019 and 11.07.2019 requesting to grant 16 annual grade increments. However, the same were not considered by the respondents. Therefore, he was constrained to file W.P.No.15537 of 2019, which was disposed of vide order dated 24.07.2019 directing the respondents therein to consider the case of the petitioner for grant of 16 annual increments, by passing appropriate orders on his representations. However, since no action was taken thereon, the petitioner decided to file a contempt case vide C.C.No.1540 of 2019, which was closed vide order dated 31.12.2020.
13. The record further discloses that after two years, respondent No.2 issued proceedings No.203/Estt.1/2014 dated 09.12.2019 cancelling the earlier order of punishment dated 16.09.2017, and held that the quantum of punishment imposed therein is not commensurate with the proven charges. Here, it is pertinent to not that the punishment imposed on 16.09.2017 was already acted upon and the same is the subject matter of W.P.No.19117 of 2019, which is pending for adjudication. Further, challenging the said 13 PK,J W.P.No.14373 of 2023 cancellation proceedings dated 09.12.2019, the petitioner filed W.P.No.28123 of 2019, wherein, this Court passed an interim order in I.A.No.1 of 2019 dated 20.12.2019 granting interim suspension of the proceedings dated 09.12.2019 and the said writ petition is pending adjudication. As such, it is clear that the interim suspension dated 20.12.2019 is still in force as on today.
14. Furthermore, the record discloses that in addition to the proceedings dated 09.12.2019, respondent No.2 issued a show-cause notice to the petitioner vide proceedings No.203/Estt.I/2014 dated 13.12.2019, calling for an explanation as to why a major penalty of dismissal from service shall not be imposed upon him for the proven charges. However, no further action was taken thereafter. It can, therefore, be construed that in view of the subsistence of the interim suspension granted by this Court, respondent No.2 had not chosen to proceed any further in the matter. However, respondent No.1 issued another show-cause notice to the petitioner vide Memo No.8613/S.E.Vig/2005 dated 16.01.2020, calling for his explanation as to why the earlier punishment of reversion to lower post shall not be enhanced to dismissal from service. In response to the same, the petitioner submitted his explanation on 03.11.2020. Thereafter, he filed another writ petition vide W.P.No.1192 of 2020, which was disposed of vide order dated 14 PK,J W.P.No.14373 of 2023 04.02.2020, and the operative portion of the said order is extracted hereunder:
"12. In the circumstances, writ petition is disposed of directing the respondent Government to objectively consider the explanation that may be offered by the petitioner in response to the show cause notice. Without regard to mentioning of punishment that is proposed and G.O.Ms.No.2 dated 4.1.1990 in the show cause notice, Government shall consider the explanation objectively and with open mind and without regard to what is mentioned in paragraph 7 of the show cause notice and take appropriate decision as warranted by law."
15. In pursuance of the above order, the petitioner has submitted another explanation on 13.02.2020. Without considering the same objectively as directed by this Court, respondent No.1 issued the impugned order vide G.O.Ms.No.14, School Education (Vigilance) Department, dated 12.04.2023, imposing the punishment of dismissal from service.
16. From the above, it is clear that the present impugned order of dismissal from service was issued consequent to the show-cause notice dated 16.01.2020. In the said show-cause notice, reference was made to G.O.Ms.No.2, General Administration (Services-C) Department, 04.01.1990, which outlines the policy for imposing a punishment of dismissal from service. As per Rule 9(x) of the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991, the punishment of dismissal from service has to be imposed only in the proven cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery and outraging the modesty of 15 PK,J W.P.No.14373 of 2023 women. Admittedly, in the case on hand, the primary allegation against the petitioner is that he produced a fake degree certification to secure promotion as a Senior Assistant and received the advance increments. As such, the case of the petitioner does not fall under the provisio to Rule 9 of the TCS (CC&A) Rules, 1991, therefore, invocation of G.O.Ms.No.2 dated 04.01.1990 and issuance of the impugned order dated 12.04.2023 is bad in law.
17. In the impugned order, it is specifically observed that "the employee is liable to be granted the maximum punishment so as to serve as a deterrent to all others to not to indulge in such activities. Therefore the earlier decision in imposition of penalty i.e., dismissal from service holds good." However, it is worth noting that there is no legal provision that mandates such an objective in the imposition of a penalty or punishment on an employee. Admittedly, the petitioner was already subjected to the punishment of reversion vide order dated 16.09.2017, which is the subject matter of W.P.No.19117 of 2019. Moreover, honouring the said punishment order, the petitioner had also joined in the reverted post i.e., Junior Stenographer, on 21.09.2017. As such, this Court does not find reason as to why respondent No.1 decided to enhance the punishment to that of dismissal from service.
18. Further, it is noteworthy that Mr. AVBS Anand who worked as a Publication Assistant of the office of respondent No.2, had also submitted a 16 PK,J W.P.No.14373 of 2023 fake certificate of Graduation, but he was continued in service till he attained the age of superannuation. In view of the same, this Court is of the opinion that the respondents should have initiated disciplinary proceedings against Mr. AVBS Anand by imposing a major penalty to serve as a deterrent to all other employees. However, no action was taken against the said employee. But in the case of the petitioner herein, the punishment of dismissal was imposed upon him with a malafide intention and taking such an action against the petitioner with the primary objective of setting an example to other employees is highly untenable. As such, this action of the respondents also amounts to discrimination.
19. The record, more particularly, letter No.104/RT/TSPSC/2020 dated 29.12.2020, reveals that the Telangana State Public Service Commission had also expressed its view that the petitioner may be reverted to a lower post and be refrained from handling any masters related to services. Additionally, it has been suggested that the petitioner should not be considered for promotion for a period of seven years even after acquiring the required qualifications. It is evident from the aforementioned letter that the TSPSC was satisfied with the decision to revert the petitioner to a lower post.
20. In view of the abovemade discussion, this Court is of the opinion that the impugned order is passed with a malafide intention only to harass the 17 PK,J W.P.No.14373 of 2023 petitioner. As such, this Court deems it fit and proper to set aside the impugned order.
21. Accordingly, the Writ Petition is allowed. The impugned order vide G.O.Ms.No.14, School Education (Vigilance) Department, dated 12.04.2023 is hereby set aside and the respondents are directed to pay all the consequential benefits to the petitioner as per his entitlement.
Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs.
___________________________ PULLA KARTHIK, J Date: 14.06.2024.
GSP