Telangana High Court
K.Anjaiah, Hyderabad vs Collector A.P.S.H.Corpn. Ltd. Hyd And 3 ... on 27 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 23818 OF 2006
O R D E R:
Petitioner claims to have been appointed as N.M.R. Work Inspector in the 1st respondent - A.P. State Housing Corporation Limited (hereinafter referred to as the 'Corporation') during 1987 and his services were regularized in the cadre of Work Inspector with effect from 27.03.1992. While so, he was placed under suspension by order dated 31.08.1993 along with Assistant Engineer Sri K. Dharma Reddy on the ground that there was shortage of about 3000 bags of cement. Subsequently, the Assistant Engineer Sri K.Dharma Reddy filed Writ Petition No. 13151 of 1993, wherein this Court suspended the order of suspension. Later Charge Memo, dated 06.09.1994 was issued by the EO & Joint Collector, Rangareddy District and a criminal case was registered in Crime No. 218 of 1993 under Section 409 IPC. for misappropriation of cement bags. The grievance of petitioner is that no detailed enquiry under Rule 20 of A.P. C.S. (CC&A) Rules has been conducted.
It is stated that petitioner also assailed the order of suspension in Writ Petition No. 1454 of 1995 wherein also, operation of order of suspension dated 31.08.1993 was 2 suspended and petitioner was directed to be reinstated forthwith pending disposal of the Writ Petition, pursuant to which, the 1st respondent issued proceedings dated 07.09.1995 reinstating him as Work Inspector (Technical). It is stated further that during the period of suspension, petitioner was not paid subsistence allowance in accordance with the Fundamental Rules and his pay was also not revised in the Revised Pay Scales resulting in severe hardship. It is only by proceedings dated 17.10.1995, the 1st respondent sanctioned subsistence allowance from the date of suspension to the date of joining.
It is the complaint of petitioner that before his reinstatement, respondents obtained statement from him forcibly to the effect that he was wholly responsible for the loss of 3000 cement bags in the godown and made him pay Rs.90,000/- towards part payment out of Rs.2,56,044/-. He was also threatened with dire consequences to pay the balance amount of Rs.1,60,044/- in one lump sum so as to enable him reinstate to duty. According to petitioner, being low-paid employee, he could not pay the amount and the Enquiry Officer conducted one-sided enquiry in utter disregard to Rule 20 (2) of A.P.C.S. (CC&A) Rules and submitted his report dated 3 10.02.1995 holding the charge proved. On receipt of the Enquiry report, respondents issued show cause notice dated 03.10.1997 proposing provisional punishment of dismissal from service besides recovery of Rs.1,66,044/- for which, he submitted explanation stating that due to coercion, he confessed and remitted Rs.90,000/-. After submitting his written explanation in the personal hearing, the 2nd respondent issued the impugned proceedings dated 02.04.1998 inflicting the punishment of stoppage of three annual grade increments with cumulative effect apart from recovery of entire balance amount of Rs.1,66,044/- and requested the District Manager (H). A.P.S.H.CL. Ranga Reddy District to take necessary steps to recover Rs.1,66,044/- from him. It was also directed that period of suspension from 31.03.1993 tο 08.09.1995 be treated as leave as per the eligibility and E.O.L. without pay and allowances for the remaining period. Petitioner preferred Appeal before the Chairman & Managing Director of the Corporation on 08.12.2005, during pendency of which, in the criminal proceedings C.C.No. 125 of 1994 before the Additional Judicial First Class Magistrate, Hyderabad West and South, R.R.District, petitioner and Sri Dharma Reddy were acquitted. Consequent thereto, petitioner is stated to have made representations to the 2nd respondent on 16.03.2001, 02.04.2002 and 21.10.2005 for 4 passing necessary orders in the light of the judgment of the competent criminal Court. The 2nd respondent, however, issued the impugned Memo, dated 25.05.2006 mechanically rejecting his Appeal.
2. While issuing rule nisi, by order dated 13.07.2007, this Court dismissed the Application taken out to direct the respondents not to effect recovery of loss at Rs.800/- per month from the salary of petitioner by proceedings dated 02.04.1998 issued by the Managing Director of the 1 s t respondent Corporation. The respondent Corporation has not filed counter- affidavit, however, since the Writ Petition is of 2006, this Court does not wish to keep the same pending any further.
3. Learned counsel for petitioner Sri A. Radha Krishna submits that respondents threatened and obtained coercive statement from his client and the Enquiry Officer held the charge proved without conducting a detailed enquiry as contemplated under the disciplinary rules. The report of the Enquiry Officer is therefore one-sided and some how intended to find fault with petitioner exclusively. It is pointed out that there are several persons in the godown namely Godown Watchman and Assistant Engineer and others apart from petitioner and the competent criminal Court had elaborately considered the entire 5 evidence and held petitioner and Assistant Engineer not guilty of the charge, hence, in the light of the judgment, punishment of recovery and stoppage of increments with cumulative effect is clearly illegal and untenable in the eye of law as the punishment is based on confession statement but not on the basis of evidence on record. Learned counsel tries to convince this Court that it is well-settled principle of law that where the departmental proceedings and criminal proceedings are based on the same set of facts, acquittal by the competent criminal Court is to be taken into account, as such the impugned punishment order besides recovery of the entire amount is clearly untenable.
4. Heard Sri M. Rammohan Reddy, learned Standing Counsel for Corporation and perused the record.
5. Proceedings impugned dated 02.04.1998, a perusal of which, goes to show that the Joint Collector - Enquiry Officer conducted a detailed enquiry into the charge framed against petitioner that there is shortage of cement at Rajendra Nagar Cement Godown of R.R.District and he observed that petitioner had given written statement that he was solely responsible for shortage of cement as the keys of godown are with him; he was in charge of godown during the period of theft; he accepted the 6 moral responsibility for the theft of 3369 cement and remitted only Rs.90,000/- as against Rs.2,56,044/-. The Enquiry Officer held that petitioner is the only Work Inspector who operated the said cement godown and he is responsible for proper accounting of cement stock and safeguard storage of cement. A further perusal would go to show that petitioner was given a show cause notice proposing the punishment of dismissal from service besides recovery of balance amount of Rs.1,66,044/- for which petitioner gave reply stating that due to coercion, he confessed and gave written statement and remitted Rs.90,000/- by selling ancestral property. However, petitioner, though was given personal hearing before the Managing Director on 10.03.1998, had not put-forth his case that under coercion, the above said amount was recovered from him, nor did the officials follow the procedure in vogue. As rightly observed by the Enquiry Officer, petitioner kept quiet all the while and pleading his ignorance when proposal for dismissal was made. However, it appeared, the Managing Director, taking the lenient view, imposed the punishment of stoppage of three annual grade increments with cumulative effect and recovery of balance amount of Rs.1,66,044/- on petitioner. Appeal filed against the said order was placed before the Board, which in its 104th 7 meeting held on 27.03.2006, rejected the same as it was devoid of merit.
6. It is well-settled that 'in disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court in exercise of its power under Section 226 of the Constitution of India, shall not - venture into re-appreciation of the evidence; interfere with the conclusions in the enquiry in case the same has been conducted in accordance with law; go into the adequacy of evidence; go into the reliability of the evidence; interfere, if there be some legal evidence on which findings can be based; correct the error of fact however grave it may appear to be; and go into the proportionality of punishment unless it shocks its conscience. In the orders impugned, this Court does not find any illegality, when examined in the context of the guidelines issued by the Hon'ble Supreme Court, hence no interference need be made.
7. Yet another contention of learned counsel for petitioner is that where the departmental proceedings and criminal proceedings are based on the same set of facts, acquittal by the competent criminal Court is to be taken in to account. In this context, it is necessary to look into the well- settled law that 'in criminal law, burden of proof is on the 8 prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. (see Ajit Kumar Nag v. General Manager (PJ) Indian Oil Corpn. Ltd. (2005) 7 SCC 764.)
8. In the light of the glaring distinction drawn by the Hon'ble Supreme Court, the contention of learned counsel for petitioner pales into insignificance. Taking into consideration 9 therefore, the legal position as well as the facts, this Court is of the view that Writ Petition is devoid of merit and the same is liable to be dismissed.
9. The Writ Petition is accordingly, dismissed. No costs.
10. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 27th September 2024 ksld