The Southern Power Distribution ... vs G.J. Lillistone,
2021 Latest Caselaw 1358 AP

      IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                         &
              HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                              W.A.No.80 OF 2020
                     (Taken up through video conferencing)



The Southern Power Distribution
Company of A.P. Ltd., rep., by its
Chairman & Managing Director,
Tirupathi, Chittoor District and others.
                                                               .. Appellants
     Versus

G.J. Lillistone, S/o Late Sri Joseph,
Worked as Lineman O/o AAO, APSPDCL,
Tadepalli Section, Penumaka, Tadepalli
Mandal, Guntur District.
                                                               ..Respondent

Counsel for the appellants    :     Mr. Y. Nagi Reddy

Counsel for the respondent    :     Mr. S.A. Razak


Date of hearing               :     22.02.2021

Date of pronouncement         :    04.03.2021


                                  JUDGMENT

(per Arup Kumar Goswami, CJ)

Heard Mr. Y. Nagi Reddy, learned counsel for the appellants and

Mr. S.A. Razak, learned counsel for the respondent.

2. This appeal is preferred by the appellants against the judgment

dated 23.11.2018 passed by the learned single Judge in W.P.No.1225 of

2007 allowing the writ petition and setting aside the proceedings dated

14.03.2005 and Memo dated 06.05.2005 issued by the 3rd respondent and

the order of the 2nd respondent-appellate authority, dated 16.12.2005, with

all consequential benefits.

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3. Facts of the case, in a nutshell, are that the writ petitioner

(respondent herein) was appointed as Non-Muster Roll (NMR) in the

erstwhile Andhra Pradesh State Electricity Board (APSEB) during the year

1971 and subsequently, he was absorbed as helper in the year 1979.

Thereafter, he was promoted as Assistant Lineman on 09.05.1982 and as

Lineman, on 21.06.1985. A complaint was made in the year 1999 against

the writ petitioner for allegedly producing a false educational certificate at

the time of his employment and after conclusion of the enquiry, a show

cause notice was issued requiring the petitioner to explain as to why he

should not be dismissed from service.

4. Challenging the aforesaid notice, the writ petitioner approached this

Court by filing W.P.No.17448 of 1999. This Court was not inclined to

entertain the writ petition as it was against the show cause notice only.

However, it was observed that it would be open to the respondents therein

to consider all the contentions advanced by the writ petitioner.

5. Thereafter, by proceedings dated 24.01.2002, the writ petitioner was

dismissed from service. The appeal preferred against the said proceedings

was also dismissed. Aggrieved, the writ petitioner filed W.P.No.12520 of

2002 and this Court by order dated 22.10.2002 allowed the said writ

petition on the ground that the same officer acted as Preliminary Enquiry

Officer, witness at the enquiry, Disciplinary Authority and had imposed the

penalty of dismissal from service on the petitioner and had set aside the

order of dismissal dated 24.01.2002, granting liberty to the appellants to

conduct a de novo enquiry, if so desired.

6. Subsequent thereto, a de novo enquiry was conducted and show

cause notice was issued to the petitioner and the Enquiry Officer submitted

his report and basing on the same, a notice dated 05.01.2005 was issued to

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the petitioner to show cause as to why he shall not be dismissed from

service and requiring him to submit his explanation within a period of 15

days.

7. Challenging the notice dated 05.01.2005, the writ petitioner filed

W.P.No.5676 of 2005. By an order dated 23.03.2005, this Court disposed

of W.P.No.5676 of 2005 granting two weeks' time to the petitioner to

submit additional explanation along with other relevant material, with a

direction to the respondents (appellants herein) to consider the same in

accordance with law. It was noted that the petitioner had submitted his

explanation on 24.01.2005 and that no order had been passed by the

respondents.

8. However, it appears that an order of dismissal dated 14.03.2005 was

already passed before disposal of the writ petition and it is apparent

that the said fact was not brought to the notice of the Court. The petitioner,

thereafter, submitted additional explanation, which was received in the

Division Office on 11.04.2005.

9. In view of the order dated 23.03.2005 in W.P.No.5676 of 2005, the

additional explanation was considered and thereafter, the order of dismissal

dated 14.03.2005 was confirmed by order dated 06.05.2005. The order

dated 06.05.2005 was put to challenge in W.P.No.14614 of 2005. This

Court, by order dated 07.07.2005, dismissed the writ petition on the ground

that the remedy of appeal was available to the petitioner. After dismissal of

the appeal vide order dated 16.12.2005, the petitioner filed the writ petition

challenging the orders as noticed supra.

10. The learned single Judge observed that the post in which the

petitioner was initially appointed did not require any educational

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qualification except being able to read and write. In paragraph No.6, the

learned single Judge stated as follows:

"This Court having considered the rival submissions made

by the parties is of the view that the post in which the

petitioner was initially appointed does not require any

educational qualification, except reading and writing.

Moreover, the department officials are the persons to speak

anything as to the genuineness of the educational

certificates produced by the petitioner, but none of the

officials, who are alleged to have stated that the certificate

produced by the petitioner was bogus, was examined in the

enquiry. Except relying on the letter addressed by D.E.O,

wherein it was stated that the certificate produced by the

petitioner is fake, the respondents have not enquired the

persons, who were responsible for issuing such certificate.

The petitioner was asked to produce the certificate of

educational qualification and when he produced the

certificate during the course of enquiry, the enquiry officer

held that the certificate produced during the course of oral

enquiry cannot be taken into consideration since he was

promoted as Assistant Lineman and Lineman basing on the

education certificate produced by him which was confirmed

as bogus certificate by the DEO, Machilipatnam, and the

alleged fake certificate was not produced before the

enquiry officer. The finding recorded by the enquiry officer

is perverse. The disciplinary authority and appellate

authority passed the order of dismissal based upon such

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perverse enquiry report. Further, the punishment of

dismissal is shockingly disproportionate to the proved

misconduct, which was based on perverse findings of the

enquiry officer. Apart from that, the respondents ought to

have examined the case of the petitioner as to whether the

qualification, for which the petitioner is alleged to have

produced a fake certificate, is relevant qualification for the

purpose of securing employment. Since the respondents

have not considered the above aspects, the proceedings

impugned are liable to be set aside".

11. Perusal of the memo dated 09.03.1999 by which charge memo was

enclosed goes to show that the Divisional Engineer/Enquiries, Vijayawada,

was appointed as Enquiry Officer to conduct departmental enquiry against

the petitioner on the allegation of production of false educational certificate

by the petitioner. It will be appropriate to extract Annexures-I, II, III & IV

of the said letter. The same read as follows:

ANNEXURE -I

ARTICLE OF CHARGE FRAMED AGAINST SRI G.J.LILLISTAN, LINEMAN

Sri G.J. Lillistan has resorted to production of False Educational

Certificate at the time of his employment and thereby failed to maintain

integrity and acted dishonestly and exhibited misconduct and violated

Regulation 4 (xxxix) of Conduct Regulations and Regulation 6 (xxx) of

Discipline and Appeal Regulations.

ANNEXURE-II

STATEMENT OF IMPUTATION OF THE CHARGE FRAMED

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During the enquiry of Divisional Engineer/Operation/Guntur, it is

found that the Educational Qualification Certificate produced by him at the

time of his appointment is false certificate.

ANNEXURE-III

List of witnesses by whom the articles of charge framed

Divisional Engineer/Operation/Guntur.

ANNEXURE-IV

List of documents by whom the articles of charge framed

Head Master of Ghandhiji Municipal High School Vijayawada-1 Letter

dated 18.01.1999.

12. The appellants have filed a memo dated 28.01.2021, enclosing a

letter dated 17.2.2004, which reads as follows:

"Divisional Engineer/Construction/Guntur was appointed as De novo

Enquiry Officer to conduct Departmental enquiry into the allegation of False

Educational Certificate against Sri G.J. Lilliston/OD/Guntur.

In accordance with said orders charge mentioned in the enclosed

charge sheet is hereby framed against him. He is directed to show cause

why suitable disciplinary action should not be taken against him on this

charge. He should submit his explanation directly to this office within

fifteen days from the date of receipt of this by him. He is also requested to

fill the enclosed questionnaire (Form-I) and submit the same along with his

explanation. He is further informed that if his explanation is not received

within the stipulated time, the undersigned will proceed within the enquiry

on the basis that he has no explanation to officer.

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All further correspondence may be done directly with this office. He

shall furnish his current postal address in full to communicate with him.

Any change of address shall be intimated to enquiry officer till the case is

finalised.

ANNEXURE -I

ARTICLE OF CHARGE FRAMED AGAINST SRI G.J.LILLISTAN, LINEMAN

Sri G.J. Lillistan has resorted to production of False Educational

Certificate at the time of his employment and thereby failed to maintain

integrity and acted dishonestly and exhibited misconduct and violated

Regulation 4 (xxxix) of Conduct Regulations and Regulation 6 (xxx) of

Discipline and Appeal Regulations.

ANNEXURE-II

STATEMENT OF IMPUTATIONS OF THE CHARGE FRAMED

During the enquiry of Divisional Engineer/Operation/Guntur, it is

found that the Educational Qualification Certificate produced by him at the

time of his appointment is false certificate.

ANNEXURE-III

List of witnesses by whom the articles of charge framed

Divisional Engineer/Operation/Guntur.

ANNEXURE-IV

List of documents by whom the article of charge framed

Head Master of Ghandhiji Municipal High School, Vijayawada-I Letter

dated 18.01.1999.

District Educational Officer/Krishna, Machilipatnam.

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Lr. No.Rc.No.22 (OD) D.No.6/2003, dated 28.1.2004."

13. It is seen that the disciplinary authority/appointing authority did not

frame any charge, but charge was framed by the Enquiry Officer.

A comparison of Annexures I, II, III & IV in the letter dated 17.02.2004 in

the year 2004 and in the letter dated 09.03.1999 would go to show that

contents are same in both except that an additional document was relied

upon in Annexure-IV of letter dated 17.02.2004.

14. The enquiry officer discussed the deposition of the petitioner as

follows:

"DEPOSITION OF SRI G.J.LILLISTON, LM: Sri G.J.Lilliston has given

a written statement stating that "G.J.Lilliston, has been working as

Lineman at Rayapudi. He had studied upto 7th class at ZP High

School, Gannavaram and later had had studied at Gandhiji Municipal

Higher Secondary School, Vijayawada and requested 20 days time to

produce his certificate where he studied and he has submitted a

copy of Transfer Certificate on 1-6-2004 issued by the Head Master,

A.P.H.School (Boys), Gannavaram, Krishna dt.28-5-2004 instead of

TC from Gandhiji Municipal Higher Secondary School, Vijayawada

studied IX Class."

15. A perusal of the Enquiry Report dated nil, which is available at page

No.29 of the appeal memo, would go to show that no witness on behalf of

the department was examined. It will be relevant to quote "Evidence in

support of charge", which reads as under:

"1. The Divisional Engineer, Construction, Guntur has

addressed a letter to the District Educational Officer, Machilipatnam

vide Lr.No.DE/Constn/GNT/Confdl/D.No.86/03, dated 15.02.2003 for

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conformation of the genuinity and benefication of the certificate

produced by Sri G.J. Lilliston. In response to the letter Sri S.

Jagannath Reddy, the District Educational Officer, Machilipatnam has

informed in Letter No.Rc.No.22/(DU)/D6/2003, dated 28.1.2004

wherein "It was observed that the TC No.35/70-71 in respect of G.L.

Lilliston is not genuine one as per the letter of the Deputy Educational

Officer, Vijayawada, Lr.No.1, Special Enquiry 03.T.C.dt. 04-12-2003."

2. Sri G.J. Lilliston has himself accepted during oral enquiry and

given a written statement that he had studied upto 7th class at Z.P.

High School, Gannavaram and later he had studied at Gandhiji

Municipal Higher Secondary School, Vijayawada and he has requested

20 days time to produce the certificate where he studied. Now, he

has submitted only a copy of Transfer Certificate on 1.6.2004 issued

by the Head Master, Z.P.H. School (Boys) Gannavaram Krishna, dated

28.5.2004 stating that he had studied VII Class as against the

Transfer Certificate issued by the Head Master, Gandhiji Municipal

Higher Secondary School, Vijayawada, where it was recorded as he

passed IX Class."

16. The findings of the enquiry officer read as follows:

"1. Sri S. Jagannath Reddy, the District Educational Officer,

Machilipatnam has informed in Letter No.Rc.No.22(D1)D6/2003 dated

28.1.2004 wherein "It was observed that the TC No.35/70-71 in

respect of G.J. Lilliston is not genuine one as per the letter of the

Deputy Educational Officer, Vijayawada Lr.No.1 Spl. Enquiry 03.T.C.

dated 4.12.2003."

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2. Sri G.J. Lilliston has himself accepted during oral enquiry and

given a written statement that he had studied upto 7th class at Z.P.

High School, Gannavaram and later, he had studied at Gandhiji

Municipal Higher Secondary School, Vijayawada and he has requested

20 days time to produce the certificate where he studied. Now he has

submitted only a copy of Transfer Certificate on 1.6.2004 issued by

the Head Master, Z.P.H. School (Boys) Gannavaram, Krishna dated

28.5.2004 stating he had studied VII class as against the Transfer

Certificate issued by the Head Master, Gandhiji Municipal Higher

Secondary School, Vijayawada as he passed IX class. Further, it is to

state that the certificate now produced during course of oral enquiry

cannot be taken into consideration since he was promoted as ALM and

LM basing on the education certificate produced by him which was

confirmed as bogus certificate by the District Education Officer,

Machilipatnam."

17. Mr. Y. Nagi Reddy, learned counsel for the appellants has drawn our

attention to the contents of the document stated to be service profile of the

writ petitioner. The name is not legible and the father's name was shown

to be G. Joseph. The date of birth was recorded as 14.09.1951 and the

Educational qualification was shown as 9th class.

18. From the transfer certificate dated 28.05.2004 which the petitioner

produced, it appears that it was issued by ZillaParishad High School,

Gannavaram (Boys). In the said certificate, name of the parent or guardian

was shown as Yesob and the date of birth was recorded as 14.3.1951. The

class in which the pupil was reading at the time of leaving was shown as

VIIth class.

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19. There is contradiction in the statement so attributed to the petitioner

and the conclusion reached by the Enquiry Officer. It was recorded that

the petitioner had stated that he studied upto 7th class at Z.P. High School

and later studied at Gandhiji Municipal Secondary School but he had

submitted a copy of transfer certificate issued by the Headmaster, A.P.H.

School (Boys). In the conclusion, it was recorded that a certificate issued

by the Head Master, Z.P.H School (Boys), Gannavaram, was submitted.

20. The case of the petitioner, as it appears from the material on record,

is that he studied upto7th class at Z.P. High School, Gannavaram and

8thclass at Gandhiji Municipal Higher Secondary School, Vijayawada and he

discontinued studies on 30.4.1969.

21. The document dated 18.1.1999 based on which charge was framed

was not even brought on record. The authorities solely relied on a letter of

the District Educational Officer, Machilipatnam wherein it was stated that

TC No.35/70-71 in respect of G.L. Lilliston is not genuine one as per the

letter of the Deputy Educational Officer, Vijayawada, Lr.No.1, Spl. Enquiry

03 T.C., dated 04.12.2003.

22. The Enquiry Officer took it for granted that the transfer certificate

issued by the Head Master, Gandhiji Municipal Higher Secondary School,

Vijayawada showed that the petitioner had passed 9th class. The finding is

wholly perverse as in the absence of the document stated to have been

produced by the petitioner at the time of entry into service, the conclusion

drawn by the Enquiry Officer cannot stand scrutiny for a moment. There is

not an iota of evidence against the petitioner in connection with the

production of false educational certificate at the time of his entry into

service.

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23. In view of the above discussion, we have no hesitation to hold that

the charge against the petitioner was not proved as the department had

even failed to produce by way of evidence the educational certificate

alleged to have been produced by the petitioner at the time of his entry

into service, let alone proving such certificate to be a false certificate by

producing acceptable evidence as would be required in a departmental

proceeding to establish a charge. In that view of the matter, we find no

merit in this appeal.

24. Accordingly, this Writ Appeal is dismissed. No costs. Pending

miscellaneous applications shall stand dismissed.

ARUP KUMAR GOSWAMI, CJ                              C. PRAVEEN KUMAR, J

Nn.