M.Rajasekhara Reddy vs The Member Secretary,
2022 Latest Caselaw 1084 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.12656 of 2013
ORDER :

This petition is filed under Article 226 of the Constitution

of India claiming the following relief:-

"to issue a writ order or direction more particularly one in the nature of WRIT OF CERTIORARI, to call for the records relating to the impugned order passed by the 1st respondent in Procs.No. 4131/CRD/SPM(DM)/278/2012, dated 28.09.2012 confirming the orders passed by the 2nd respondent dated 16.03.2012 vide Procs.R.C.No.D4/141/2011 and to quash the same as being illegal, arbitrary and to grant such other relief or reliefs...."

2. The case of the petitioner is that he was joined as

Technical Assistant in Racharla Mandal on contract basis

under Mahatma Gandhi National Rural Employment

Guarantee Scheme (MGNREGS) on 23.05.2009. Since then he

has been discharging his duties with utmost satisfaction of all

his superiors and there are no complaints or adverse remarks

against him during his tenure of service. However, the 2nd

respondent issued a show cause notice bearing

Rc.No.D4/141/2011, dated 14.03.2011 alleging that in the

social audit conducted from 11.12.2010 to 23.12.2010, the

petitioner has committed certain irregularities in maintaining

records and thereby misappropriated an amount of

Rs.29,705/- and Rs.5,33,120/- along with another Field

Assistant viz Mr. V.Keshav and Technical Assistant B.Kishore

and called for his explanation. Thereafter the petitioner has

submitted his explanation by duly enclosing all the relevant

documents stating that entire work has been done by engaging

the labourers and the amounts were credited into the accounts

of the beneficiaries through the concerned post office. It is

relevant to state that the concerned coolies who attended the

work also submitted a letter to the 2nd respondent stating that

they were engaged as coolies for the above said work and the

amounts were paid to them.

It is also stated that the petitioner has not committed

any mismanagement or misappropriate of funds and also two

years were lapsed after completion of the work during which

period heavy rain fall was recorded at 1200 mm and due to Jal

and Laila cyclones the agricultural lands were totally damaged

and the ponds were destroyed due to which the agricultural

lands were covered with sand and as a matter of fact the farm

pond works and disilting works were also damaged due to

heavy sand coverage due to the said rain fall. It is stated that

the second term social audit was conducted from 11.12.2010

to 23.12.2010 as per the measurements by the social audit

team it was taken as 9.60x9.80x0.30=28.224 M3 but as per

the M-Book it is recorded as 9.60x9.50x0.78=71.02 M3 as per

the said calculation the social audit team placed allegation

against the petitioner. It is stayed that the petitioner placed

all the material before the social audit team as well as project

director and with the appeal but the authorities without

considering the records made the petitioner responsible for the

natural calamities. A Circular is issued vide No.653/EGS/

PM(Q.C)/2008, dated 05.04.2010 to maintain the tractor watch

book, but it is specifically mentioned that the petitioner has

not maintained the tractor watch b ook and in fact till the date

of receiving circular nobody maintained the same and they

have entered the details in the M.Book.

It is further stated that the 2nd respondent without

considering the explanation of the petitioner and without

affording any opportunity to him, issued orders in RC

No.D4/141/2011, dated 16.03.2012 removing the petitioner

from service and ordered for recovery of the amount of

Rs.1,62,986/- without even ascertaining as to how the said

amount was said to have been misappropriated. Being

aggrieved by the order dated 16.3.2012, the petitioner

preferred appeal before the 1st respondent on 19.04.2012.

However, the 1st respondent without conducting any enquiry

and without recording the statements of the villagers who have

submitted their requisition stating that the petitioner has not

involved in any sort of misappropriation, simply relying on the

findings fothe 2nd respondent came to a wrong conclusion,

passed the impugned order vide Proc.No.4131/ CRD/

SPM(DM)/278/2012, dated 28.09.2012.

It is stated that as per the National Rural Employment

Guarantee Act, 2005, the social audit has to be conducted as

provided under Section 17, which reads as under:

"17. Social audit of work by Gram Sabha. --

(1) The Gram Sabha shall monitor the execution of works within the Gram Panchayat.

(2) The Gram Sabha shall conduct regular social audits of all the projects under the Scheme taken up within the Gram Panchayat. (3) The Gram Panchayat shall make available all relevant documents including the muster rolls, bills, vouchers, measurement books, copies of

sanction orders and other connected books of account and papers to the Gram Sabha for the purpose of conducting the social audit."

It is stated that the PIDP works were allotted for the

years 2009-2010 and the social audit was conducted from

11.12.2010 to 23.12.2010. It is relevant to mention here that

while conducting social audit as per Sub Section (3) to Section

17, the relevant records submitted by the Gram Panchayat

have to be scrutinized but in this case, it reveals that no sort of

verification nor scrutiny has been done which conclusion can

be drawn by observing the records from show cause notice to

impugned order and it is a fact that the petitioner has

submitted all relevant records with proofs at the time of social

audit and at the time of reply to show cause notice and along

with the appeal, but the respondents intentionally issued the

impugned order terminating the services of the petitioner.

Hence, the present writ petition.

3. The 2nd respondent filed counter affidavit denying the

averments in the affidavit filed in support of the writ petition

stating that the social Audit Team inspected the works in

Racharla Mandal on 01.12.2010 to 23.12.2010 and found that

some irregularities were committed by the petitioner. On

23.12.2010, public hearing was conducted in the Mandal

Office, Racherla in the presence of public representatives,

villagers, wage seekers, Media and presiding officer. The

presiding officer questioned the irregularities committed by the

writ petitioner in the Public Forum. The petitioner has not

given any reply before the Presiding Officer. Then, the

presiding officer concluded that the petitioner has committed

irregularities. Basing on the report of the social audit team

this respondent issued show cause notice dated 14.3.2011

calling for the explanation of petitioner. Thereafter the

petitioner submitted his explanation on 30.3.2011. After

perusing the entire record, the 2nd respondent issued order

terminating the petitioner from service on 14.3.2012.

Thereafter, the petitioner preferred an appeal before the 1st

respondent against the order of the 2nd respondent disciplinary

authority. Thereafter, the 1st respondent after perusing the

entire record confirmed the order of the 2nd respondent.

Hence, prayed to dismiss the writ petition.

4. Reply affidavit is filed by the petitioner inter alia

stating that the respondents issued posting orders as per the

existing rules whether it is purely contractual or permanent,

but the respondents violated the principles of natural justice to

place some interested persons in his place by alleging

irregularities and misappropriation of public funds. The

petitioner has given detailed explanation to the show cause

notice, but the respondents did not consider the same. He

submitted that there was no excess money drawn as the

workers drawn amount to their respective works, and the same

was remitted to the ryots and therefore there is no excess

money drawn. He further submits that he has been

discharging his duties as per the orders of the higher officials

and the same was being executed and intimated from time to

time.

It is further stated that the PIDP works were allotted for

the years 2009-2010 and the social audit was conducted from

11.12.2010 to 23.12.2010 and the social audit team should

have seen that the Gram Panchayat have to be scrutinized, but

no sort of verification nor scrutiny has been done. Even

though he submitted all relevant records with proofs at the

time of social audit and at the time of reply to show cause

notice and along with the appeal, the respondents terminating

the petitioner from service. He further submits that if the

respondents had really given opportunity he has put forth all

contentions against the show cause notice. But they had not

taken into consideration of his statement. It is also stated that

the similar situated persons who issued show cause notice,

were taken into duty and they have been doing their job.

Hence, prays to direct the respondents as prayed for.

5. Heard Sri Chaparla Sitharam, learned counsel

appearing on behalf of Sri K. Gani Reddy, learned counsel for

the petitioner; Sri V. Vinod K Reddy, learned Standing Counsel

for ZP,MPDO, Gram Panchayat and Sri M.S.R. Chandra

Murthy, learned Special Counsel for NREGS appearing for the

respondents.

6. The main argument of learned counsel for the

petitioner is that the petitioner was appointed as Technical

Assistant in Racharla Mandal under MGNREG Scheme by the

respondents in the year 2009 and discharging his duties with

utmost satisfaction of his superiors and there are no adverse

remarks from any corner. However, the 2nd respondent has

issued show cause notice bearing Rc.No.D4/141/2011, dated

14.03.2011 and called for his explanation. Thereafter, the

petitioner submitted his detailed explanation. However, the 2nd

respondent without considering the explanation of the

petitioner and without affording any opportunity to him, issued

impugned proceedings in Rc.No.D4/141/2011, dated

16.03.2012, thereby ordered for recovery of an amount of

Rs.1,62,986/-, which is not permissible under law.

7. Learned counsel further contended that though the

petitioner has submitted his explanation, the 2nd respondent

has not considered without affording an opportunity, which is

not permissible under law and falls under violation of

principles of natural justice. He also relied upon a judgment of

learned Single Judge of this Court in Nakka Suribabu Vs.

State of Andhra Pradesh and 2 others1, wherein this Court

was held that " it should be noted that the 3rd respondent has

not discussed the contents in the written explanation as well as

the previous reports and has not given reasons as to how he

was not satisfied with the submissions made in the explanation

and how the findings in the previous reports were not convicting.

Most importantly, he has not mentioned as to how the complaint

allegations were established and what was the material which

weighed with him to come to such conclusion. The order shows,

no personal hearing seems to have been accorded to the

petitioner. Therefore it is needless to emphasize the order is

W.P.no.12941 of 2020 dated 16.09.2020

devoid of reasons and bereft of following the principles of

natural justice."

8. On the other hand, learned Standing Counsel argued

that the petitioner was negligent in discharging his duties and

therefore the 2nd respondent issued show cause notice dated

14.03.2011 duly providing opportunity of the personal hearing

and the petitioner has also attended the personal hearing on

25.05.2011. After verifying the entire records and after

considering the explanation, the 2nd respondent issued the

impugned order dated 16.03.2012 and hence there is no

reason to intervene with the order impugned, and as such, the

writ petition is not maintainable and thus prayed to dismiss

the writ petition.

9. After hearing the arguments of both the counsels and

on a close scrutiny of the impugned order dated 16.03.2012

show, as rightly argued by the learned counsel for the

petitioner, after noting in detail the allegations in the

complaint, the 2nd respondent has jumped into the conclusion

stating that on seeing the explanation and previous enquiry

reports, he found the petitioner violated the conditions under

Disciplinary Rules. He accordingly terminated the petitioner

from the post of Technical Assistant. It should be noted that

the 2nd respondent has not discussed the contents in the

detailed explanation as well as the previous reports and has

not given reasons as to how he was not satisfied with the

submissions made in the explanation and how the findings in

the previous reports were not convincing. Most importantly, he

has not mentioned as to how the complaint allegations were

established and what was the material which weighed with him

to come to such conclusion. Therefore, it is needless to

emphasize the order is devoid of reasons and bereft of following

the principles of natural justice. In similar circumstances, a

learned Single Judge of High Court of Andhra Pradesh at

Hyderabad, having found that proper opportunity of hearing

was afforded to the petitioner herein and his explanation was

not considered by the authority, set aside the impugned order

of termination of the petitioner therein from the service and

directed the concerned authority to pass appropriate order

after affording a personal hearing to the petitioner. The said

order squarely applies to the facts of the case on hand.

10. No doubt, it is argued by learned counsel for the 2nd

respondent that an appeal provision is provided in the

concerned rules and thereby the writ is not maintainable. I am

not convinced with the argument of the learned counsel for the

respondents, for the reason, in the instant case there is a

discernible violation of principles of natural justice as noted

supra. Though admittedly, the petitioner submitted his written

explanation, the same was not considered and no personal

hearing was also granted to the petitioner at the time of

enquiry. Therefore, the writ petition is maintainable. The

power to issue prerogative writs under Article 226 of

Constitution of India is plenary in nature and is not limited by

any other provision of the Constitution.

11. In view of the foregoing reasons, the Writ Petition is

allowed and the impugned proceedings in

Rc.No.D4/141/2011, dated 16.03.2012 passed by the 2nd

respondent are set aside and remanded back the matter to the

2nd respondent, and further the 2nd respondent is directed to

consider the written explanation of the petitioner and other

relevant material and afford a elaborate personal hearing to the

petitioner and pass an appropriate order strictly in accordance

with the governing law and rules as expeditiously as possible

but not later than eight (08) weeks from the date of receipt of a

copy of this order. No costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 02 -03-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.12656 of 2013

Date : 02 .03.2022

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without considering the petitioner's detailed explanantion

found that the petitioner not providing minimum needs to the

wage seekers Ex. Drinking water etc., 50 wage seekers working

instead of original wage seekers and the petitioner negligent to

submit the D-Muster, it will be for delaying payments of wages

to the wage seekers. Therefore, the 4th respondent terminated

the service of the petitioner vide proceedings

Rc.No.315/2015/E6/HR, dated 01.08.2015.

Even though alternative remedy is available, a writ is

maintainable in view of the judgment in Whirlpool Corporation

Vs Registrar of Trade Marks, where the Hon'ble Supreme Court

held that a Writ petition is maintainable for the enforcement of

Fundamental Rights or violation of prinples of natural justice

or where the order of proceedigns are wholly without jurdiction

or the vires of the Act is challenged.

illegal, arbitrary.

has worked as Work Inspector in the respondents' organization

initially at Kuderu vilalte and Mandal, Anantapur from

January 1985 to April, 1986 and subsequently he was made

In-charge Assistant Engineer of Rayadurg of Anantapur

District. While he was working at Rayadurg, the 3rd

respondent officials have given a complaint alleging that an

amount of Rs.1,33,000/- has been misappropriated by the

petitioner at Rayadurg and Dharmavaram and the same were

registered as Crime No.17 of 1989 of Rayadurg Police Station

and Crime No.24 of 1989 of Dharmavaram Police station, and

basing on the said complaints, the petitioner was terminated

from service on 03.05.1989. Subsequently it was proved that

no such misappropriation has been occurred and the cases

filed by mistake of fact and as such the same were withdrawn

by the 3rd respondent vide letter No.RC MC1 No.1818/91,

dated 02.07.1992. Basing on the above, the 1st respondent has

written a letter to the 2nd respondent vide letter

No.1301/RH1/93, dated 05.05.1995 asking them to reinstate

the petitioner into service with immediate effect.

It is stated that in spite of the 1st respondent's letter

dated 05.05.1995, the petitioner was not reinstated into

service. Thereafter, as the petitioner made several requests

and representations to the respondents, the 1st respondent

addressed a letter to the 2nd respondent referring his

representations dated 28.06.2010 and 29.01.2011, asking for

appointment to the petitioner as Work Inspector afresh on

Outsourcing purely on temporary basis subject to obtaining

irrevocable undertaking from the petitioner that the petitioner

would not claim his earlier service/seniority in the cadre of

Work Inspector, condonation of break-in service and

consequential benefits thereon, but the petitioner did not give

any such undertaking. Even then, the 2nd respondent has

appointed the petitioner on 02.06.2011 only as Outsourcing

Work Inspector on temporary basis without considering the

continuous persuasion and representations.

It is stated that prior to termination of the petitioner, he

has attended to the Test and Interviews conducted for the post

Assistant Engineer on direct recruitment and secured

99 ½ marks and placed second position in the merit list of the

OCs. But subsequent to his termination, he lost every

opportunity in his career and now he has grown up to the age

of 46 years and is not eligible for any appointment in the

Government Post. Whereas, his colleagues who have been

regularized in the year 1991 vide G.O.Ms.No.182 Housing (RH)

Department, dated 13.11.1991, who worked on par with the

petitioner, are now in high positions and promotions. It is

stated that without there being any mistake or offence on his

part, but for the vague news item complaints and taking action

in irresponsible way without even getting clarified or enquired

before initiating any action by the respondent, the petitioner

lost his precious life and career. Thereafter, again the

petitioner sent a representation dated 27.01.2012 requesting to

reconsider his case. But the respondents did not take any

action. Hence, the present writ petition.

3. Heard Sri J.U.M.V. Prasad, learned counsel for the

petitioner and Sri E.V. Jagannadha Rao, learned Standing

Counsel for APSHC Limited appearing for the respondents.

4. Learned counsel for the petitioner submitted that

even though the letter No.103/RH1/93, dated 05.05.1995

issued by the respondents for reinstatement of the petitioner,

they did not consider the petitioner to reinstate into service

and hence, requests to consider the case of the petitioner.

5. Learned Standing Counsel submits that they filed

Memo, dated 01.02.2022 along with Service Agreement dated

13.05.2011 between the Outsourcing Agency i.e., The

Anantapur District Computer Data Entry Operators Welfare

Association, Anantapur and the petitioner with an undertaking

that petitioner should join in service subject to the terms and

conditions. He stated that as per this undertaking, the

petitioner joined in service in the year 2011 and the contract

period is ONE year. Now he is continuing in service and

drawing salary. But surprisingly, the petitioner filed the

present writ petition questioning his reinstatement into service

in the respondents' organization, which is not maintainable

under law. Hence, prayed to dismiss the writ petition.

6. In reply, learned counsel for the petitioner submits

that the said Agreement filed by the respondents is only in

collusion with the Outsourcing Agency, it is not at all

acceptable and prays to allow the petition by giving direction to

the respondents for reinstating the petitioner into service and

for grant of consequential reliefs as prayed for.

7. It is an admitted fact that the petitioner joined in

service as per Service Agreement in the year 2011. While

disputing the same, the petitioner never raised this issue in his

affidavit, approached this Court. On filing the undertaking by

the respondents only, the petitioner is giving explanation

stating that undertaking was obtained by way of fraud and

collusion.

8. This Court, having perused the entire material on

record especially the Memo filed by the 2nd respondent, which

is taken on file that the petitioner, as per Clause(6) of the

Terms and Conditions, he was agreed that he will not claim his

earlier service/seniority in the cadre of Work Inspector,

condonation of break in service and consequential benefits

thereon as stipulated in Government letter,

Rc.No.2224/U&IAY.A2/2010, dated 11.04.2011 and letter

Rc.No.8393/ APSHCL/ Vig(3)/ATP/2010, dated 03.05.2011 of

the Managing Director, AP State Housing Corporation Limited,

Hyderabad and now the petitioner by suppressing the above

fact came to this Court with another plea which this Court

cannot entertain its jurisdiction under the Article 226 of

Constitution of India since he has no locus poenitentiae to

plead at this moment and principle of estoppel while applied to

him, this writ petition cannot be maintainable and devoid of

merit and hence it is liable to be dismissed.

9. Accordingly, the Writ Petition is dismissed. No order

as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     -02-2022
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




          WRIT PETITION No.6333 of 2012




                Date :    .02.2022




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