Rudrapati Suresh, vs The State Of Andhra Pradesh
2022 Latest Caselaw 7962 AP

       HONOURABLE SMT. JUSTICE V. SUJATHA

              Writ Petition No.19144 of 2019

ORDER:

The writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

"to issue a Writ or Order more in the nature of Mandamus declaring the action of the 2nd respondent-Transport Commissioner, in refusing to consider the case of the petitioner for promotion to the next higher post i.e. Road Transport Officer on erroneous assumption that disciplinary proceedings initiated against him are subsisting as on date, as illegal, arbitrary and violative of principles of natural justice and consequently to direct the 2nd respondent to consider the case of the petitioner for promotion to the post of Road Transport Officer from the date when his juniors were promoted with all consequential benefits treating the disciplinary proceedings as elapsed by efflux of time."

The case of the petitioner, in brief, is that the

petitioner was initially appointed in the year 1989 as

Mechanic for GDS Vijayawada and subsequently he was

promoted from cadre to cadre and presently he is holding

as Motor Vehicles Inspector. During his tenure, the

petitioner was never imposed with any penalty much less 2 VS, J

W.P.No.19144 of 2019

any proceedings initiated under Rule 20 of CCA and CCS

Rules for imposing either minor or major penalty. While he

was working at Tetagunta check post at Tuni Mandal, East

Godavari District from 04.05.2010 to 28.11.2011, a

surprise check was conducted on 17.10.2010 by ACB

officials, basing on which, a charge memo was issued to

the petitioner on 13.10.2015 after lapse of a period of four

years of the surprise check. It is alleged in the charge

memo that the petitioner failed to supervise his

subordinates properly and gave scope for collection of

illegal gratification while he was on duty. He submitted his

explanation on 23.11.2015 to the said charge memo,

refuting the charges levelled against him and requested to

drop further action. The charges levelled against the

petitioner are neither grave nor any pecuniary loss

occurred to the State and it revolves around misconduct or

dereliction of duty or negligence in duty.

While the things stood thus, the petitioner was also

issued a charge memo on 02.12.2016 alleging that while he

was working in the office of Transport Commissioner at 3 VS, J

W.P.No.19144 of 2019

Tetagunta, a surprise check was conducted by ACB

officials on 28.11.2011, alleging that money was being

collected by the employees by engaging private persons as

agents. The said charge memo was issued on 02.12.2016

after a period of five years. The Articles of the said charge

reveal that the petitioner, in collusion with other staff at

the check post, allowed unauthorized persons to act as

agents in violation of Circular Orders and thus, indulged in

corrupt practices from 26.11.2011 to 28.11.2011. He

submitted his explanation on 29.04.2019 to the said

charge memo, refuting the allegations made in the charge

memo. Pursuant to the notice issued by DSP, ACB,

Rajahmundry, the petitioner submitted his reply on

09.11.2012 requesting to drop further proceedings in the

departmental proceedings.

It is the further case of the petitioner that though he

became eligible for promotion to the post of Road Transport

Officer under Scheduled Caste quota, his junior was

promoted, denying his promotion on the sole ground of

alleged incidents of surprise check held on 17.10.2010 and 4 VS, J

W.P.No.19144 of 2019

28.11.2011 respectively. The petitioner, having put in

seventeen years of service in the cadre of Motor Vehicles

Inspector, is eligible to be considered for promotion to the

next cadre of Regional Transport Commissioner under S.C.

quota. When his case was not considered for promotion,

the petitioner filed O.A.No.7944 of 2013, which was

disposed on 12.11.2013 directing the State to consider his

application for promotion, but the said order was not

implemented. Even though the petitioner made several

requests ventilating his grievances, his name was not even

mentioned in the ROR roster though he became eligible for

promotion in the year 2013. The petitioner relied upon

G.O.Ms.No.679, General Administration (Services-C)

Department, dated 01.11.2008, wherein certain time limit

was prescribed for completion of inquiries in simple cases

and critical cases ranging from 3 to 6 months and the said

guidelines requiring the Investigating Officers to complete

the investigation expeditiously, preferably within six

months. But, the respondent authorities has not completed

the disciplinary proceedings within the time prescribed.

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                                                W.P.No.19144 of 2019

He further relied upon 20 of CCA and CCS Rules

contemplates that when an enquiry is to be conducted,

charges have to be framed and the enquiry is to be

conducted by appointing an Enquiry Officer. Since the

Rules do not prescribe any time limit for conducting

enquiry, the Government vide G.O.Ms.No.679 General

Administration (Services-C) Department, dated 01.11.2008

prescribed time limit stating that in the matter of inflicting

minor penalty, the enquiry shall be completed within three

months and in case of imposing major penalty, the enquiry

shall be completed within a period of six months. The

Government in its wisdom has issued the said G.O. stating

that any delay in conducting enquiry would hinder the

right of the officer to prove his innocence and therefore, the

enquiry should be completed at the earliest. Further, the

Government vide G.O.Ms.No.257, General Administration

(Ser.C) Department dated 10.06.1999 issued certain

guidelines, wherein it is stated that an employee can be

considered for ad hoc promotion only if disciplinary

proceedings are not concluded within two years from the 6 VS, J

W.P.No.19144 of 2019

date of affecting promotions after disciplinary proceedings

are initiated, subject to fulfilment of other requirements of

promotion. He further contended that in so far as criminal

proceedings are concerned, Section 468 of the Code of

Criminal Procedure, 1973 prescribes certain limitation

period for prosecution of the case which cannot beyond

three years.

The 2nd respondent filed his counter, while denying

the averments in the writ petition, contended that the

petitioner, while he was working in Tetagunta Check post,

East Godavari District, a surprise check was conducted by

ACB officials on 28.11.2011 and another case was

registered vide Crime No.12/RCO-RJY/2011, under

Section 13 (1) (d) read with 13 (2) read with 109 and 34 IPC

of ACB, Rajahmundry Range, Rajahmundry. The petitioner

along with others was arrested on 29.11.2011 and was

remanded till 14.12.2011. As he was detained for more

than 48 hours, he was placed under suspension w.e.f.

29.11.2011      vide       proceedings   dated     03.12.2011          and

subsequently,         he    was    reinstated    into     service     vide
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                                                  W.P.No.19144 of 2019


G.O.Rt.No.51,    TR     &   B   (Vig.III.2)   Department,     dated

09.01.2013.

     Further,     the    Government       vide   G.O.Ms.No.679,

General Administration (Services-C) Department, dated

01.11.2008 had prescribed certain time limit for

completion of inquiries in simple cases and critical cases

ranging from 3 to 6 months and the guidelines issued by

the Government requiring the Investigating Officers to

complete the investigation expeditiously, preferably within

six months, do not have any statutory force and they were

merely in the nature of instructions for guidance of

Investigating Officers and that a writ of mandamus cannot

be issued to enforce the administrative instructions as the

guidelines issued by the Government do not confer any

enforceable right upon any person.

The 2nd respondent further stated that the case of the

petitioner came up on 12.02.2019 for the first time in the

zone of consideration before the Departmental Promotion

Committee, which considered his name for inclusion in the 8 VS, J

W.P.No.19144 of 2019

panel for promotion as Regional Transport Officer for the

panel year 2018-2019 and deferred his name stating that

he was involved in three ACB cases and departmental

disciplinary proceedings were already initiated in two ACB

cases where charges were framed, keeping in view the

guidelines issued in G.O.Ms.No.257, General

Administration (Ser.C) Department, dated 10.06.1999. It is

further stated that in the third ACB case registered on

27.07.2018, the petitioner along with eight others were

involved and an unaccounted amount of Rs.1,00,270/-

was seized during the surprise check. As per

G.O.Ms.No.257, and the Circular Memo No.15813/Ser.C/

2007, dated 11.09.2007, in respect of the officers against

whom charges of misconduct are framed and served on

them, their promotion has to be deferred. As the petitioner

involved in three ACB cases, which are related to collecting

illegal gratification, where charge memos were issued in the

first two cases and referred to Commissioner of Inquiries

and accordingly an Enquiry Officer was appointed on

26.06.2020 and 01.09.2020 respectively, his case was 9 VS, J

W.P.No.19144 of 2019

deferred. On 30.08.2020, the Government requested the

DG, ACB to nominate the Presenting Officer and

accordingly, the promotion of the petitioner was deferred.

Heard Sri Ch. Samson Babu, learned counsel for the

petitioner and the learned Government Pleader for

Services-II.

Learned counsel for the petitioner, while reiterating

the averments of the writ petition referred to supra, relied

upon various decisions reported in P.V. Mahadevan v. Md.

T.N. Housing Board1, wherein the Hon'ble Supreme Court

held as under:

"....the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings....." ".......we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain

(2005) 6 SCC 636 10 VS, J

W.P.No.19144 of 2019

and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer...."

Similarly, in State of Punjab and others v. Chaman

Lal Goyal2, wherein the Hon'ble Supreme Court

categorically held as follows:

"......It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry which had proceeded to a large extent be allowed to be completed. At the same time, it is directed that the respondent should be considered forthwith for promotion without reference to and without taking into consideration the charges or the pendency of the said enquiry and if he is found fit for promotion, he should be promoted immediately......" "......the Rules and practice normally followed in such cases may be different. The promotion so made, if any, pending the enquiry shall, however, be subject to review after the conclusion of the enquiry and in the light of the findings in the enquiry. It is also directed that the enquiry against the respondent shall be concluded within eight months from today. The respondent shall cooperate in concluding the enquiry. It is obvious that if the respondent does not so cooperate, it shall be open to the enquiry officer to proceed ex-parte. If the enquiry is not concluded and final orders are not passed within the aforesaid period, the enquiry shall be deemed to have been dropped....."

    (1995) 2 SCC 570
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                                                               W.P.No.19144 of 2019

Likewise, in Government of Andhra Pradesh v. A.

Rajeswara Reddy3, wherein this Court categorically held

as follows:

".....There is no dispute with regard to the proposition of law laid down by this court in State of A.P. and another V. Ramulu and another (2010 (1) ALT 178 (DB) with reference to G.O.Ms.No.257 G.A. (Ser.C) Department, dated 10.06.1999, whereunder certain guidelines were formulated, which, inter alia, relate to deferring of promotion/appointment by transfer to higher post in respect of officers who are facing disciplinary proceedings, when charges are framed and charge memo served. But, in the subsequent orders of the Government in G.O.Ms.No.679, dated 01.11.2008, departmental enquiries are directed to be completed within certain time schedules, categorizing them into simple cases being completed within three months and complicated cases being completed within six months. Though orders in G.O.Ms.No.679, were issued by the Government and which was in existence when the order in State of A.P. and another v. Ramulu and another (1supra), came to be issued, but the fact remains, the same was not brought to the notice of the Court, and as such, the said G.O. did not receive the consideration by the court. The petitioners have not cited any reason as to why they did not complete the enquiry within the time schedules prescribed in G.O.Ms.No.679, and why the disciplinary proceedings are still not concluded even though more than one and half years have elapsed from time the date the respondent submitted his explanation to the articles of charge issued by the petitioners......"

    2010 (4) ALT 374 (DB)
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                                                              W.P.No.19144 of 2019

In the case on hand, it is not in dispute that the

petitioner was involved in three ACB cases and in two ACB

cases, departmental proceedings are initiated where

charges were framed and served on the petitioner, as per

the guidelines issued in G.O.Ms.No.257 General

Administration (Ser.C) Department, dated 10.06.1999. It is

also not in dispute that due to pendency of the above

proceedings, the case of the petitioner for further

promotion was deferred till completion of such disciplinary

proceedings. The only issue that is involved herein is that

the delay in initiating the disciplinary proceedings in spite

of issuance of charge memo would amount to depriving the

petitioner of his entitlement for further promotion?

It is to be noted that one of the major areas of

litigation in service matters is inordinate delay in

initiation/conclusion of disciplinary proceedings and on

that ground of inordinate delay in initiation and conclusion

of the disciplinary proceedings, would amount to depriving

the employees of their entitlement for promotion.

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                                            W.P.No.19144 of 2019

A perusal of the material on record makes it clear

that the charges levelled against the petitioner with regard

to illegal gratification and indulgence in collection of

money, are serious in nature. It is not in dispute that ACB

cases were also registered against the petitioner, apart

from disciplinary proceedings. Because of pendency of

such disciplinary proceedings, the petitioner was deprived

of getting promotion. Admittedly, after ACB trap was made

in the year 2018, no further steps have been taken in

initiating the proceedings. However, when the case of the

petitioner came up for promotion before the Departmental

Promotion Committee, his case was deferred only on the

ground of pendency of disciplinary proceedings.

A perusal of the material on record makes it clear

that the Government, vide G.O.Ms.No.679 dated

01.11.2008 prescribed certain time limits for completion of

inquiries. As per the said G.O., the disciplinary enquiry

should be completed within six months wherever the

allegations are serious in nature. But, in the present case,

the disciplinary enquiry could not be completed within the 14 VS, J

W.P.No.19144 of 2019

stipulated time. It is no doubt that as per the

G.O.Ms.No.679, the disciplinary proceedings shall be

completed within the prescribed period. If there is any

delay in completion of the proceedings, the competent

authority has to explanation such delay. The delay on the

part of the authorities cannot be ground to make the

employee to suffer. It is for the authorities that if an

employee is found fit for promotion, he may be promoted

immediately subject to outcome of the enquiry pending

against the employee, if not completed within the

prescribed period.

Having regard to the above facts and in view of the

law laid down in the judgments referred to supra, this

court is of the view that because of delay in completing the

disciplinary proceedings, the petitioner cannot be made to

suffer the consequential benefit of promotions because of

delay by the authorities in completing the disciplinary

proceedings.

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                                             W.P.No.19144 of 2019

In view of foregoing discussion, the writ petition is

disposed of directing the respondents to consider the case

of the petitioner for promotion to the next higher cadre to

which he becomes eligible, subject to result of the

disciplinary proceedings pending against him, if not

concluded so far. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

shall stand closed.

_______________ V. SUJATHA, J

Date: 19.10.2022 Ksn