K Guravaiah vs The State Of Andhra Pradesh
2021 Latest Caselaw 3172 AP

      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.12378 of 2021
O R D E R:

This Writ Petition is filed for the following relief:-

".....to issue a Writ Order or Direction more particularly one in the nature of Writ of mandamus to declare the impugned punishment order, issued with inordinate delay of (17) years, vide G.O.Rt.No.232 Industries & Commerce (Vigilance) Department, dated 01.12.2020 (Served on 24.02.2021) by the 1st respondent, against the non-existing Charge Memo dated 24.09.2007, once the same Charge Memo stands quashed in W.P.No.16909 of 2019, dated 30.10.2019, subsequently awarding the impugned punishment, for Recovery of Rs.13,51,000/- from the pensionary benefits is highly illegal arbitrary and disproportionate, as the delay vitiate the enquiry and causing prejudice to the petitioner, and contrary to the reported judgment in 2013 (4) A;T 1 (DB) and judgment of Hon'ble Apex Court in (2005) 6 SCC 636, and liable to be set aside, consequently direct the respondents to release all pensionary benefits immediately to the petitioner, and pass such other order or orders may deem fit and proper in the circumstances of the case."

This Court has heard Sri Ramalingeswara Rao

Kocherlakota, learned counsel for the petitioner and the

learned Government Pleader for Services-I for the

respondents.

Learned counsel for the petitioner points out that the

petitioner, who worked in the Industries Department retired

on 30.09.2009. On 24.09.2007 a Charge Memo was issued to

him, for which a reply was also given. The enquiry into the

same was concluded on 06.08.2013 holding that the charges

against the petitioner and two others were partly proved.

Against the enquiry report the petitioner gave a reply on

09.01.2014, but punishment of a cut in pension equivalent to

one annual grade increment along with recovery of Rs.13.51

lakhs was imposed on the petitioner. Learned counsel for the

petitioner submits that due to the delay in the conclusion of

the proceedings the same is not lawful. He also submits that

the delay is contrary to Circular Memo No.35676/Ser.C/98,

dated 01.07.2008 and G.O.Ms.No.679, dated 01.11.2008

issued by the Government of Andhra Pradesh. Learned

counsel for the petitioner also points out that in view of the

settled case law on the subject he approached this Court by

filing W.P.No.16909 of 2019 for early conclusion of the

enquiry. By orders dated 30.10.2019, this Court directed the

conclusion of the enquiry within a period of three months and

also held that if the enquiry is not concluded the charge

memo shall stand quashed. The learned counsel for the

petitioner submits that it is also admitted in the counter that

a copy of this order was served on the respondents soon after,

but they had concluded the enquiry only on 01.12.2020.

According to the learned counsel for the petitioner after the

expiry of three months period the charge memo itself is

quashed and so all further proceedings are bad in law. It is

also argued in the alternate that the charge memo does not

contain a charge relating to the actual loss said to have been

sustained and therefore learned counsel for the petitioner

argues that without any evidence or basis recovery of

Rs.13.51 lakhs was ordered. Relying on the judgments

reported in P.V.Mahadevan v MD, Tamilnadu Housing

Board1 and the Division Bench Judgment reported in

D.Srinivas v Government of Andhra Pradesh, Transport,

Roads and Buildings (Vig.I) Dept., and Others2 learned

counsel argues that this is a fit case in which proceedings

should be deemed to have been quashed and entire

proceedings must be set aside.

In reply to this learned Government Pleader for

Services-I argues at length and points out that there is clear

dereliction of duty and negligence on the part of the

petitioner, which is established in the detailed enquiry that is

conducted by the senior bureaucrat, who is the

Commissioner of Inquiries. He also points out that at all

stages the petitioner was put on notice of the proceedings and

he participated in the same. Therefore, he submits that the

petitioner cannot make a case for quashing of the

proceedings. It is argued that even after the final punishment

was proposed to be imposed a notice was given to the

petitioner. The procedure as per the Andhra Pradesh Pension

Rules was followed and the learned Government Pleader

argues that in the matters of this nature if there is a

(2005) 6 SCC 636

2013 (4) ALT 1 (D.B.)

reasonable evidence the enquiry officer can come to his own

conclusion and Court should lightly interfere with the same.

As far as the delay is concerned learned Government Pleader

relies upon paragraph 17 of the vacate stay petition in

I.A.No.2 of 2021 and points out that the reasons for the delay

are clearly explained therein and the causes are beyond the

control of the respondents. He also argues that since there

are three officers involved some delay did occur, but it is not

an inordinate delay. Ultimately it is his conclusion that

enquiry was duly conducted and as the loss was held to be

proved it was apportioned among the delinquents. Hence, he

prays for dismissal of the Writ Petition.

This Court after examining the proposals notices that

the charge memo, dated 24.09.2007, issued related to an

incident that allegedly occurred in July, 2003. There is a

delay of four years for the issuance of memo and thereafter as

can be seen from the record, the proceedings were only

concluded after 17 years i.e., on 01.12.2020. A clear period

of 13 years was taken to come to this conclusion. Time and

again the highest Courts of the land have held that this delay

is a ground enough to quash the proceedings. In para 12 of

the judgment in P.V.Mahadevan case (1 supra) it is held

that the delay in conclusion of proceedings will cause mental

agony and distress to the officer. Therefore, the Hon'ble

Supreme Court of India said that such delay should not be

allowed and shall be a ground quash the charge memo. In

D.Srinivas case (2 supra) also a similar conclusion was

reached. The Division Bench after considering the cases of

P.V.Mahadevan case (1 supra) and Secretary, Ministry of

Defence v Prabash Chandra Mirdha3 quashed the charge

memo and the impugned order was set aside on the ground of

delay and the punishment imposed on the petitioner was also

quashed. It is also pertinent to note that the reasons for the

delay spelt out in paragraph 17 of the vacate stay petition do

not allege that the petitioner was in any way responsible for

the delayed proceedings. Thus, this Court has no hesitation

to hold that this delay is contrary to the Government orders

issued and in line with the above cited judgments, this Court

has to hold that the petitioner is entitled to the relief.

Apart from that the other important issue is the order

passed by the learned single Judge in W.P.No.16909 of 2019.

This order was passed after hearing both the parties. The

learned single Judge held that the proceedings should be

concluded within a period of three months from the date of

receipt of a copy of the order, failing which the charge memo

shall stand quashed. In the counter affidavit filed it is clearly

mentioned that the 1st respondent after receipt of the letter

and the order of the Hon'ble High court requested the 2 nd

respondent to take action vide Memo dated 09.01.2020. This

is within the period of three months, but thereafter from

(2012) 11 SCC 565

09.01.2020 to 06.07.2020 no step was taken and ultimately

the remarks of the 2nd respondent was given after a delay of

six months by 06.07.2020. This delay is unexplained. It

runs contrary to the order passed by the learned single

Judge. Since no appeal has been filed against the said order

has become final and is binding on both the parties. Beyond

the three months period stipulated the charge memo itself

stood automatically quashed. Hence, all further action taken

after the expiry of the three-month period is held to be bad in

law.

Lastly, this Court also has to agree with the alternate

submissions made by the learned counsel for the petitioner

that even the apportionment of loss is not borne out by the

record. A reading of the record does not explain how the loss

was arrived at and on what basis. The further apportioning of

loss and imposing of punishment on the petitioner is thus

contrary to law. There should be evidence to this effect

besides a foundation in the charge memo for the loss.

Nothing is specified in the charge memo about the alleged

quantum of loss. On this ground also this Court has to hold

that the punishment imposed is incorrect.

For all the above mentioned reasons the Writ Petition is

allowed by setting aside the impugned punishment order

dated 01.12.2020 issued by the 1st respondent. But in the

circumstances, there shall be no order as to costs. The

pension and all other benefits shall be paid immediately.

As a sequel, the miscellaneous petitions, pending if any,

shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:25.08.2021 Ssv