Smt. K Anusha vs The State Of Telangana

Telangana High Court

Smt. K Anusha vs The State Of Telangana on 3 May, 2024

 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

            WRIT PETITION No.40466 of 2022

ORDER:

This Writ Petition is filed seeking a writ or direction more particularly one in the nature of Writ of Mandamus declaring the impugned proceedings passed by respondent No.5 vide proceedings No.E1/SV/2712/2015 dated 27.09.2022 dismissing the petitioner from service under Rule 9(X) of TSCS (CC&A) Rules, 1991 on the ground that it is in violation of Rules 20 and 21 of TSCS (CCA) Rules 1991 as without jurisdiction and in violation of principles of natural justice and also in violation of orders passed by the Hon'ble High Court in W.P.No.34933 of 2022 dated 06.09.2022 and to set aside the same and to further direct respondent No.3 to conduct enquiry afresh and to pass such other order or orders.

2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as a Junior Assistant in respondent No.5-office. While she was 2 TMD,J W.P.No.40466 of 2022 working in the office of the Registrar, Karimnagar during the period of 07.10.2013 to 28.03.2016, a charge memo dated 29.07.2016 was issued to the petitioner and also to the Joint Sub Registrar-I and one Sharoff pursuant to the report of the Committee dated 28.03.2016. Around five charges were levelled against the petitioner and the sum and substance of the charges is that the petitioner and others sold away certain stamp papers and have deposited part of the sale proceeds into the Registration account and the balance has been misappropriated by them. Simultaneously, a criminal complaint was also lodged on the file of Station House Officer, Karimnagar-I Town Police Station, vide Crime No.129 of 2016 dated 28.03.2016 for the offences punishable under Section 420 and 409 of IPC and a charge sheet was also filed and the case was registered as C.C.No.200 of 2017. As the criminal case was pending, the petitioner submitted an explanation on 18.08.2016 to the charge memo dated 29.07.2016 stating that since the criminal case is pending, she will file her explanation after adjudication 3 TMD,J W.P.No.40466 of 2022 of the same as the charges levelled against the petitioner in the charge memo as well as the criminal case are one and the same. Further, it was also stated that respondent No.2 has not filed any document leave alone the report dated 28.03.2016, on the basis of which the charge memo was issued.

3. It is stated that respondent No.4, thereafter, was appointed as an Enquiry Officer to conduct enquiry in respect of the charges levelled against the petitioner and others vide proceedings of respondent No.3 dated 29.07.2016, the Sub-Registrar's Market value and Audit, Adilabad was appointed as a Presenting Officer. It is stated that on 07.01.2017, the petitioner was admitted to one Shivananda Maternity Hospital at Karimnagar for delivery and got operated and she had given birth to one female child on 08.01.2017 and the petitioner was discharged from hospital on 12.01.2017. Therefore, notice for enquiry to be conducted on 24.01.2017 was not served on the petitioner. Subsequently, the suspension was revoked by respondent No.5 by orders 4 TMD,J W.P.No.40466 of 2022 dated 20.04.2018. In the meantime, the petitioner received a memo dated 04.10.2018 issued by respondent No.3 calling for petitioner's objections, if any, to the enquiry report and also the defence statement within 15 days from the date of receipt the report while enclosing a copy of the enquiry report dated 31.01.2017 along with depositions. After going through the enquiry report, the petitioner observed that enquiry report held that the charges against the Joint Sub-Registrar-I and Sharoff are held as not proved but it has held that the charges against the petitioner only are proved. Therefore, the petitioner submitted a detailed representation requesting for re-conduct of enquiry. However, the same was not considered by the respondents and a show-cause notice was issued to the petitioner. Challenging the same, the petitioner filed a writ petition i.e., W.P.No.34933 of 2022 challenging the enquiry report dated 31.01.2017 and also sought a direction to respondent No.3 to consider the representation/explanation dated 29.10.2018 for conducting a fresh enquiry into the charges and also 5 TMD,J W.P.No.40466 of 2022 sought a direction to respondent Nos.1 and 2 not to act upon enquiry report dated 31.01.2017. It is submitted that the High Court was pleased to dispose of the writ petition directing the respondents not to take any action on basis of the enquiry report dated 31.01.2017 till a decision is taken on the representation of the petitioner dated 29.10.2018 and the said decision is communicated to the petitioner.

4. Pursuant to the said order, the petitioner submitted another representation dated 14.09.2022. However, respondent No.3 has issued a memo dated 22.09.2022 informing the petitioner that her representation dated 29.10.2018 was already taken into consideration before the proposals were submitted to the Government vide letter dated 26.02.2019. Thereafter, respondent No.5 passed the impugned order dismissing the petitioner from service under Rule 9(X) of TSCS (CCA) Rules referring to the Government Memo dated 28.02.2022. Challenging the same, the present writ petition is filed stating that the impugned order is on the basis of an 6 TMD,J W.P.No.40466 of 2022 enquiry, which was conducted ex-parte against the petitioner i.e., in violation of principles of natural justice and also in violation of directions of this Court dated 06.09.2022 in W.P.No.34933 of 2022.

5. This Court vide orders dated 03.11.2022 had granted interim suspension of the impugned proceedings dated 27.09.2022 issued by respondent No.5 till 08.12.2022 and the same has been extended from time to time.

6. The respondents have filed counter affidavit along with stay vacate petition.

7. Learned counsel for the petitioner while reiterating the submissions made in the writ affidavit submitted that this Court in W.P.No.34933 of 2022 had directed the respondents not to take any action on the basis of the enquiry report dated 31.01.2017 till the representation of the petitioner dated 14.09.2022 has been considered and has been disposed of and the said decision has been communicated to the petitioner. It is 7 TMD,J W.P.No.40466 of 2022 submitted that the respondents have not passed any order on the representation of the petitioner but instead have only stated that the same was taken into consideration before sending the proposals to the Government for imposing the punishment on the petitioner. Learned counsel for the petitioner has also stated that the enquiry was conducted when the petitioner was on maternity leave and the respondents were well aware of the same but have conducted an enquiry during the said period and have submitted the enquiry report on 31.01.2017 and therefore the ex-parte enquiry report cannot be relied upon to impose the punishment of removal from service against the petitioner. In support of his contentions, learned counsel for the petitioner has also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Aureliano Fernandes v. State of Goa and ors 1 and the judgment of this Court in the case of B. Raja Gopal 1 AIR 2023 SC 2485 8 TMD,J W.P.No.40466 of 2022 v. General Manager, Nizam Sugar Factory Ltd. and another 2.

8. Learned Government Pleader for Services-II, on the other hand, supported the impugned orders and submitted that the representation of the petitioner was taken into consideration before recommending the punishment to the respondents and therefore, there was no violation of the directions of this Court. Learned Government Pleader further submitted that there is no violation of principles of natural justice since the notice of enquiry was sent to the residence of the petitioner but the same was refused by her husband and he had threatened that a case would be booked against the messenger. Therefore, the same has been stated and recorded in the enquiry report. Hence according to him, the enquiry has been properly conducted and the punishment has been imposed. Learned Government Pleader relied upon the judgment of the Hon'ble Supreme Court in the cases of Union of India and others v. 2 1996 (2) ALD 274 9 TMD,J W.P.No.40466 of 2022 Ex.Constable Ram Karan 3 and B.C.Chaturvedi v. Union of India and others 4 in support of his contentions that imposition of punishment is the prerogative of the disciplinary authority and the Courts should not interfere with the same.

9. Having regard to the rival contentions and the material available on record, this Court finds that the allegations against the petitioner and others were serious and therefore the disciplinary proceedings were initiated. However, at the time of conducting enquiry, the petitioner was under maternity leave and it is a situation which would be evident to the respondents. It is not understandable as to why and how the Enquiry Officer has decided to issue notice for enquiry during period when the petitioner was on maternity leave and in hospital. Admittedly, the notice of the enquiry has not been served on the petitioner. Even if the petitioner had refused to take the notice, there were alternate modes of 3 (2022) 1 SCC 373 4 (1995) 6 SCC 749 10 TMD,J W.P.No.40466 of 2022 service of notice prescribed under Rule 42 of TSCS (CCA) Rules, 1991 on the petitioner. Admittedly, no such modes have been adopted by the respondents for serving notice on the petitioner and an enquiry was evidently conducted on 24.01.2017 ex-parte the petitioner and the enquiry report was also submitted on 31.01.2017. It is also not understandable as to why the enquiry report dated 31.01.2017 was not supplied to the petitioner till October, 2018 when it was issued along with the show cause notice. Further, where this Court in W.P.No.34933 of 2022 vide orders dated 06.09.2022 has directed the respondents to consider the representation and communicate its decision to the petitioner and not to take action till such time, the respondents have not done so but have wantonly intimated that the same has been considered before sending the proposals of punishment to the Government. This is in clear and blatant disregard of the directions of this Court. The impugned order of dismissal from service, which is on the basis of finding of enquiry report, is clearly in violation of 11 TMD,J W.P.No.40466 of 2022 principles of natural justice. Hon'ble Supreme Court in the case of Aureliano Fernandes (cited supra 1) has considered the applicability of principles of natural justice to disciplinary proceedings at Paras No.31 and 35 and the same are as follows:

"(c) ARTICLE 311 : A MANIFESTATION OF THE PRINCIPLES OF NATURAL JUSTICE

31. This Court has held that in matters of dismissal, removal or reduction in rank of public servants, Article 311 of the Constitution is a manifestation of the essential principles of natural justice. It imposes a duty on the Government to ensure that any such decision against the public servant is preceded by an inquiry that contemplates an opportunity of hearing to be granted to the public servant, who is also entitled to make a representation against such a decision.

Article 311 reads as under:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in 12 TMD,J W.P.No.40466 of 2022 which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply--

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

35. Article 14, often described as the 'Constitutional Guardian' of the principles of natural justice, expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the 13 TMD,J W.P.No.40466 of 2022 laws. Article 14 provides an express guarantee of equality before the law to all persons and extends a protection to them against discrimination by any law. Article 13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India, the force of law. Thus, principles of natural justice guaranteed under Article 14, prohibit a decision-making adjudicatory authority from taking any arbitrary action, be it substantive or procedural in nature. These principles of natural justice, that are a natural law, have evolved over a period of time and been continuously refined through the process of expansive judicial interpretation."

10. Similarly the coordinate bench of this Court in the case of B.Raja Gopal (cited supra 2) has considered the applicability of principles of natural justice to the disciplinary proceedings and has held as under:

"12.The rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power. The court presumes that the requirements are implied in the absence or indication to the contrary in the Act, confirming the power or in the circumstances in which the Act is to be applied.

13. The rules requiring impartial adjudications and fair hearing can be traced back to medieval precedents, and indeed, they were not unknown in the ancient world. These principles were regarded as part of immoletale order of things, so that in theory even the power of legislature could not alter them. Chief Justice Coke in Dr.Bonham's case (8Co.rep. 113b at 118 a extracted from Wade's 14 TMD,J W.P.No.40466 of 2022 Administrative Law) said that Court could declare an Act of parliament void if it made a man Judge in his own case, or otherwise "against common right and reason"

14. Natural Justice is summed up as fair play in action. The principle was applied with great restraint till 1963 until land- mark judgment was rendered by House of Lords in Ridge v. Baldwin (1) (1964) AC 40. The House Lords made it clear that duty to act judicially arose directly from the power of an agency to 'determine questions' affecting the rights."

11. The judgments relied upon by the learned Government Pleader are in respect of punishment imposed by the disciplinary proceedings whether can be interfered by the courts and are not applicable to this case as this is a case of violation of principles of natural justice and not about the quantum and adequacy of punishment.

12. In view of the judgments cited supra in respect of violation of principles of natural justice, this Court is of the opinion that the impugned order cannot be sustained. Therefore, the impugned order is set aside and the respondents are directed to reinstate the petitioner into service and conduct enquiry afresh by giving due opportunity of hearing to the petitioner and 15 TMD,J W.P.No.40466 of 2022 also by supplying all the documents on which they wish to place reliance upon to the petitioner.

13. Accordingly, this Writ Petition is allowed. There shall be no order as to costs.

14. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.

____________________________ JUSTICE T.MADHAVI DEVI Dated: 03.05.2024 Prn