P.V.Prabhakar vs State Of Andhra Pradesh
2023 Latest Caselaw 875 AP

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        THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                WRIT PETITION (A.T) No.288 of 2021

ORDER:

This Writ Petition is filed, seeking the following relief: ".....to issue a Writ, Order or direction to set aside the impugned orders issued by the 1st respondent in G.O.Ms.No.80 (Revenue Vigilance-II) Department, dated 04.03.2015 on a erroneous interpretation of the A.P.Civil Services Classification, Control and Appeal Rules-1991 the impugned order as illegal, arbitrary and against the principles of natural justice and consequently direct the respondents to consider his re-instatement to the cadre of Sub- Registrar in one of the available vacancies in any of the Districts of Zone-IV and pass such other orders."

2. Heard Mr. T. Vijay Hanuman Singh, learned counsel for

the petitioner and Mr. K. Sridhar Murthy, learned counsel for the

respondents.

3. The brief facts of the case are that while the petitioner

was working as Sub-Registrar, Muddanur, Proddatur, YSR Kadapa

District, the 3rd respondent issued orders of suspension vide

proceedings dated 04.10.2008 alleging that an amount of Rs.

48,110/- collected towards the deficit stamp duty, transfer duty

and registration fee pertaining to various documents presented for

registration in the office of Sub-Registrar, Dharmavaram for the

financial year 2007-08 was not remitted into Government treasury

as per rules and instructions. The learned Tribunal also directed

the respondents to complete the enquiry and pass final orders

within four months vide O.A.No.11251 of 2009. The petitioner was

reinstated to duty vide proceedings dated 04.03.2010 issued by

the 3rd respondent. The 3rd respondent issued article of charge vide

Memo dated 09.06.2009 during the period of suspension of the

petitioner and also the Disciplinary Authority has also issued

another charges vide Supplementary Charge Memo dated

21.10.2009. The petitioner also submitted his explanation, having

not satisfying the explanation, an enquiry was initiated, but not

enquired the issue properly. The 3rd respondent submitted enquiry

report to the 2nd respondent, who in turn submitted the same to

the 1st respondent, who ordered for fresh enquiry without

conducting the common enquiry afresh, has passed final order

recommended to pass the order of punishment of removal from

service vide proceedings dated 04.03.2015. The 1st respondent has

not passed any order so far, as a consequence no increments were

also released during the period from 04.10.2008 to 04.03.2010,

which is highly illegal and arbitrary. Therefore inaction of the

respondents is questioned in this writ petition.

4. Per contra, the 1st respondent filed counter-affidavit

denying the averments made in the writ affidavit and mainly

contended that it was found that the petitioner had committed

grave offence of breach of trust and for this act of embezzlement,

he was suspended from service by the 3rd respondent vide

proceedings dated 04.10.2008. The petitioner was given

reasonable opportunity in each and every point of time even from

framing disciplinary charges to till conclusion of the proceedings

as per Rule 20 of the A.P.Civil Services (Classification, Control and

Appeal) Rules, 1991 (in short "the rules"). Regular Enquiry Officer

conducted enquiry and submitted his report dated 14.02.2011

holding that the charges were proved against the petitioner, but

the petitioner denied the charges. The petitioner has availed the

opportunity in filing the review petition on 07.05.2015 requesting

the Government to set aside the punishment imposed and the

Government also rejected the review petition vide Memo dated

28.07.2015. Therefore the writ petition is liable to be dismissed.

5. During hearing learned counsel for the petitioner

reiterated the contents urged in the writ petition and mainly

contended that the enquiry officer has not conducted proper

enquiry and not furnished proper documents which the petitioner

sought for. Further the enquiry officer without considering the

explanation submitted by the petitioner has submitted erroneous

report to the respondents. Articles of Charges framed against the

petitioner twice on same allegations. Therefore the respondents

has not followed due procedure in conducting the enquiry. Basing

on the enquiry report, the respondents recommended the

Government to impose punishment of removal from service.

6. Learned counsel for the petitioner has relied on the

decision of the Hon'ble Apex Court in the case of "Mruthyamjay

Sing Vs. State of U.P"1 wherein it was held as follows:

"Increments falling due during suspension period should be added in subsistence allowance and the subsistence allowance should be calculated accordingly. This view was taken by the Allahabad High Court on the ground that during the period of suspension the contract of service subsists and therefore the suspended employee be entitled to all benefits of service. It was held that an increment can be withheld only as penalty by a specific order of the Government and where there is no such specific order withholding or postponing the increment such an increment cannot be denied even during the period of suspension".

Further he relied on a decision of "Mohinder Lal Bogali

Vs.Delhi Administration2" wherein it was held as follows:

"It is undisputed fact remains that a suspended employee continuous to be a Government Servant even during suspension...."

7. Therefore, learned counsel for the petitioner would

contend that in view of the settled law as laid down by the Hon'ble

Apex Court, the petitioner is entitled to claim relief as prayed for in

this writ petition.

8. Learned counsel appearing for the respondents would

contend that as per Rule 24 while taking common proceedings, the

Government has directed that it will follow rule 20 of "the rules" on

1971(2) SLR 523

1970 SLR 486

the said proceedings and the same was followed in imposing

punishment after show causing the delinquent official i.e petitioner

giving him reasonable opportunity. Hence the respondents has not

violated the spirit of the Judgment of the Hon'ble Apex Court in

"Secretary, Minister of Defence and Others Vs. Prabhash

Chandra Mirdha"3, while giving the petitioner the opportunity to

file a review petition under Rule 38 of the rules. The Government

also rejected the review application. Therefore the punishment

imposed against the petitioner as the charges are proved against

him.

9. However, this Court observed that there is sheer violation

of the rules and the enquiry is not conducted proper by giving

sufficient opportunity to the petitioner. Further the respondents

did not consider the request of the petitioner to submit material

papers to him and framed supplementary charges also. Therefore

the respondents framed articles of charges twice and no fair

opportunity has been given to the petitioner. Basing on the

enquiry report, the respondents have recommended the

government to impose punishment of removal from service vide

G.O.Ms.No.80, dated 04.03.2015 is highly illegal and arbitrary.

The Government also rejected the review application without

assigning any proper reasons. Therefore, following the decisions

AIR 2012 SC 2250

cited supra, this Court has inclined to allow the writ petition in to

to.

10. In view of the scenario stated supra, this Writ Petition is

allowed, while declaring the impugned proceedings dated

04.03.2015 as illegal and arbitrary. There shall be no order as to

costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 15.02.2023.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.288 of 2021

Date: 15.02.2023.

KK