M.Suneel Kumar vs The State Of Andhra Pradesh
2022 Latest Caselaw 5641 AP

     THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                             W.P.No.28301 of 2021

ORDER:-

       The present Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-


       "... to call for the records pertaining to impugned proceedings dated
       13.09.2021 through which the 3rd respondent imposed major penalty of

stoppage of increments with cumulative effect and set it aside as bad illegal, irrational, illogical, amounting to non-application of mind, biased, prejudiced and in total violation of Rule 21 of CCA Rules and utter violation of principles of natural justice, discriminatory, unfair, contrary to record and fact, amounting to enquiry officer going beyond the scope of the charge, harsh and disproportionate, imposing punishment without legal evidence that too based upon, baseless and unwanted charge memo, totally contrary to the very concept of enquiry proceedings and unconstitutional and consequently, direct the respondents to release all the consequential benefits and impose exemplary costs on the respondents by issuance of Writ of Mandamus or issue any Writ, Order or Direction in the interest of justice and to pass such other order or orders ..."

2. Heard Sri J. Sudheer, learned counsel for the petitioner and

Sri N.Ashwartha Narayana, learned Government Pleader for

Services-I appearing for the respondents.

3. The brief facts of the case are that, the Writ Petitioner, while

working as Senior Assistant at Border Check Post, Nagalapuram,

Chittoor District for a period from July, 2016 to August, 2016,

issued transit passes without movement of the vehicle and

thereby cause revenue loss to the Government. After receiving a

report from the 5th respondent and by following due process of

law, a major penalty of stoppage of two (2) annual grade

increments with cumulative effect was imposed against the

delinquent/writ petitioner. Aggrieved by the same, the present

Writ Petition came to be filed.

4. The petitioner submitted his explanations and stated that he

had not committed any irregularity and if there is any irregularity,

the same is only due to heavy work load and stress but not

intentional and therefore requested to drop the whole proceedings.

He further submitted that individual login can be used by others,

when the petitioner was not temporarily in the seat and stated

that issuing of transit passes is the responsibility of the Assistant

Commercial Tax Officer on duty.

5. Learned counsel for the petitioner would submit that, the

charge framed against the petitioner is an irregular charge. No

such charge could have been framed against the petitioner

contrary to record, leave alone conducting an enquiry, finding him

guilty of such charge that too without legal evidence and

punishing him is bad in law. The second contention is that the

enquiry was not conducted in accordance with law as

contemplated under Rules 20 and 21 of the Rules, 1991. No

documents have been supplied to the petitioner and no

opportunity was given to the petitioner to cross-examine the

witnesses. The petitioner was asked to cross-examine by

supplying a questionnaire which is contrary to Rule 20 of the

Andhra Pradesh Civil Services (Conduct) Rules, 1964 (for short,

"the Rules, 1964"). Hence, prayed to allow the Writ Petition by

setting aside the impugned proceedings dated 13.09.2021 issued

by the 3rd respondent.

6. Per contra, learned Assistant Government Pleader, with

regard to the non examination of the witnesses by the petitioner,

would contend that the petitioner is whole incharge of the domain

of the VATIS login and there is no possibility of the login to third

parties as the password is in control of the Writ

Petitioner/delinquent officer. He further submitted that the

presenting officer has served a questionnaire of four (4) witnesses

to the petitioner. The petitioner refused to receive and sign the

same and has not cross-examined the four (4) office sub-ordinates

to answer the questionnaire in the shape of evidence. The Writ

Petitioner/delinquent officer ought to have cross-examined the

witnesses basing on the questionnaire and no where it is asserted

in the Writ Affidavit as to how the petitioner is prejudiced about

the questionnaire.

7. Learned Government Pleader would further contend that the

petitioner has taken an inconsistent and paradoxical

defences/plea regarding the charge viz., a) that the transit passes

were issued due to heavy traffic and stress of work and b) that

there was every possibility that the individual login can be used by

others, when the petitioner was not temporarily in the seat and

that the issuance of transit passes was the responsibility of the

ACTO on duty.

8. He further contended that the said penalty was imposed

against the petitioner after following the due process of law and a

remedy of Appeal is provided under Rule 33 of the Rules, 1991

and the enquiry authority has not violated Rule 20 of the Rules,

1991. The petitioner ought to have been availed the same and

contested in the Appeal and there was no violation of judicial

principles viz., a) Breach of fundamental rights; b) The violation of

principles of natural justice; c) an excess of jurisdiction ; or d)

Challenge to the virus of the statute or delegated legislation;

9. Learned Government Pleader would contend that with regard

to the non examination of the witnesses in the enquiry before the

petitioner/delinquent officer, it is submitted that the entire issue is

based on the official records i.e., VATIS logins and also the list of

vehicle entered in the login of the petitioner. Basing on the said

record and login id of the petitioner, it has been concluded that the

transit passes were issued without movement of the vehicles.

Accordingly, punishment was imposed. Hence, prayed to dismiss the

Writ Petition.

10. Basing on the above facts, the following Issues are framed:-

i) Whether the charge framed against the petitioner is an

irregular charge and not in consonance with the facts of

the case. Hence, the petitioner would have been

exonerated from the charge.

ii) Whether the enquiry was conducted as per Rule 20 of the

Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991 (for short, "the Rules", 1991) and an

opportunity was given to the petitioner for cross-

examination of the witnesses under Clauses (c) & (d) of

Sub-Rule 10 of Rule 20 of the Rules, 1991.

11. The charge framed by the disciplinary authority against the

petitioner is as follows:-

"Sri M. Suneel Kumar, Senior Assistant, while working at Border

Check Post, Nagalapuram issued transit passes for fraudulent

transactions i.e, entry of transit Passes were issued on the Commodity

"Granites" and Flooring materials except Granite and Marble as the

VATIS report to the goods vehicles moving from the State of Tamil nadu

to other states during the month of July, 2016 and August, 2016

without actual movement of goods vehicle".

Learned counsel for the petitioner would submit that the

charge would have been framed as quoted under:-

"Petitioner has facilitated for issuance of transit passes through the Assistant Commercial Tax Officer (ACTO)".

12. It is not the case of the Writ Petitioner that the charge does not

come under the purview of the "misconduct" as per Rule 3 of Rules

1994. The petitioner has not taken the said plea/defence either

specifically or evasively in the entire disciplinary proceedings and for

the first time it was raised before this Court. Unless it is the case of

the petitioner that the charge would not come under the purview of

the four corners of the misconduct, this Court is not inclined to go

into the said aspect.

13. The second issue raised is that, the petitioner was not given

the opportunity to cross-examine the witnesses and no documents

were supplied to him and the enquiry was vitiated as it is contrary to

Rule 20 of the Rules 1991.

Rule 20 (10) (c) of the Rules, 1991 reads as, "the witness shall

be examined by or on behalf of the Presenting Officer and they may be

cross examined by or on behalf of the Government Servant".

Rule 20 (10) (d) of the Rules, 1991 reads as, "the Presenting

Officer shall be entitled to re-examine the witnesses on any points on

which they have been cross examined, but not on any new matter

without the permission of the Inquiring Authority".

14. In the present case, a questionnaire has been supplied to the

petitioner and he was asked to cross-examine the witnesses basing

on the same which is not provided in the Rules cited supra. Rule 20

(11) (c) of the Rules 1991 reads that, "the inquiring authority shall

give the government servant an opportunity of inspecting such

documents before they are taken on the record". Hence, the

contention of the petitioner is that no document was supplied to him

in the entire enquiry proceedings and it does not even reveal that

witnesses were examined in the presence of the petitioner and he

was given an opportunity to cross-examine them and it was admitted

in the counter affidavit. Though Indian Evidence Act, is not

applicable to disciplinary proceedings, still the principles of natural

justice would prevail and the authority shall follow the procedure

established by law. The authority ought to have provided an

opportunity to the petitioner, to cross-examine the witnesses by

examining them in the presence of the petitioner.

15. For the above said contentions, I am fortified with the

Judgments reported in, "T. Ranjeeth Singh, S/o. Heeralal

Administrative Officer, S.S. Government Polytechnic, Zaheerabad,

Sangareddy District Vs. State of Telangana, Rep. by its Additional

Chief Secretary, Higher Education Department, Secretariat,

Hyderabad and others1" and "V. Shivanna Vs. A.P. State Housing

Corporation Limited, Rep. by its Managing Director & another 2". The

grievance of the petitioner in both the afore cited cases was that, at

any enquiry facts have to be proved and the person proceeded

against must have an opportunity to cross-examine the witnesses

and to give his own version or explanation about the evidence on

which he is charged and to lead is defence.

16. The principle that a statement of a witness, which was

recorded earlier, either during the preliminary enquiry or during

investigation, can be relied upon or not during the regular course of

enquiry was considered by the Hon'ble Supreme Court in "State of

Mysore V. Shivabasappa Sivappa3". Again the said principle it is

reiterated in "The State of Punjab Vs. Bhagat Ram4" The witnesses

were not examined in the presence of delinquent so far as

examination-in-chief is concerned. In view of non-examination of the

witnesses in the presence of the delinquent officer, the departmental

proceedings were set aside therein.

17. In the present case on hand, the same novel procedure was

adopted by the enquiry officer by preparing a questionnaire and

directing the petitioner herein to examine the witnesses on the

questionnaire. It is a trite law that the enquiry officer cannot adopt

his own procedure as per his own whims and fancies which is not

permissible in law. The Hon'ble Supreme Court as well as this Court

in plethora/catena of decisions held that role of enquiry officer and

2017 SCC OnLine Hyd 121

2015 SCC OnLine Hyd 107

(1963) 2 SCR 943

(1975) 1 SCC 155

the procedure to be followed in the disciplinary proceedings. It is

crystal clear from the enquiry report that the enquiry was not

conducted in accordance with law and in conformity with the

principles of natural justice. The inquiry officer acting in a quasi

judicial authority is in a position of independent adjudicator. He is

not supposed to be a representative of the department/disciplinary

authority/government as held by the Hon'ble Supreme Court in

"State of Uttar Pradesh Vs. Saroj Kumar Sinha5".

18. When a departmental enquiry has to be conducted against a

government servant, it cannot be treated as a casual exercise and it

must be conducted in accordance with the rules of natural justice.

For an employee, giving a reasonable opportunity of being heard in

any proceedings which may be culminated in a punishment being

imposed on the employee, cannot be treated as a casual exercise. It

is a cardinal principle, that in a domestic enquiry the charges framed

against a delinquent officer may not be proved by the department

itself and in doing so, it is obligatory on the part of the enquiry officer

to give an opportunity to the delinquent officer to contradict or rebut

such evidence or to put forth such evidence which may falscify the

case of the department.

19. In view of the above discussion, the Writ Petitioner was not

given an opportunity to cross-examine the witnesses and they were

not examined in the presence of the petitioner and the petitioner was

not supplied with the documents which was evident from the enquiry

proceedings. As a result, the enquiry was vitiated and it was not

conducted as per Rule 20 of the Rules, 1991.

2010 (2) SCC 770

20. Therefore, the Writ Petition is allowed by setting aside the

impugned proceedings dated 13.09.2021 passed by the 3rd

respondent. The matter is remanded back to the

disciplinary/enquiry authority to conduct enquiry afresh in

accordance with Rule 20 of the Rules, 1991. It is needless to say that

the petitioner shall co-operate with the respondent authorities for

completion of enquiry, failing which, the authorities are at liberty to

pass an ex-parte order as per the rules contemplated under the

Rules, 1991. There shall be no order as to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 26-08-2022 EPS

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

W.P.No.28301 of 2021

Date: 26-08-2022

EPS