Order vs Union Of India And Others"1 ...
2023 Latest Caselaw 235 AP

                                        1


        THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

                 WRIT PETITION (A.T) No.727 of 2021

ORDER:

This Writ Petition is filed, seeking the following relief:

".....to issue a Writ, Order or direction to set aside the proceedings in CCT's Ref.No.V2/1014/2010, dated19.03.2014 issued by the 3rd respondent herein where under punishment of stoppage of two increments with cumulative effect has been imposed and which was confirmed in Appeal vide proceedings in Memo No.26444/Vig.II(3)/2014-1, dated 06.10.2015 which was further confirmed vide Memo No. 20614 Nig.II(3)/2014-3, dated 07.02.2017 issued by the 1st respondent herein as illegal, arbitraru and violative of principles of natural justice and pass such other orders."

2. Heard Mr. V.Mallik, learned counsel for the petitioner and

learned Government Pleader, Services-I for the respondents.

3. The brief facts of the case are that the respondent

authorities pursuant to the Charge Memo dated 05.10.2010 have

imposed a penalty of stoppage of two increments with cumulative

effect vide proceedings dated 19.03.2014. Assailing the same, the

petitioner has preferred an Appeal stating the enquiry authority

submitted its report dated 01.07.2013 has held that charges 2 to 4

have not proved and as such the petitioner has submitted

explanation at the stage of show-cause only to charges No.1 and 5.

But the 3rd respondent issued final order dated 19.03.2014 beyond

the scope of show cause notice and has not only considered

charges No.1 and 5 and also charges No. 2 to 4 to a partial extent

without giving him an opportunity, which is highly illegal and

arbitrary. Hence the writ petition came to be filed.

4. The respondents failed to comply with the Rule 12(1) of

Writ Rules in filing the counter-affidavit within time. Therefore the

right of filing counter-affidavit is forfeited.

5. During hearing learned counsel for the petitioner

reiterated the contents urged in the affidavit and relied on the

decision of the Hon'ble Apex Court decision in "Ram Chander Vs.

Union of India and Others"1 wherein the Hon'ble Division

Bench, held as follows:

"24. ......It is not necessary for our purposes to go into the vexed question whether a post-decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case (AIR 1985 SC1416) unequivocally lays down that the only stage at which a Government servant gets a reasonable opportunity of showing cause against the action proposed to be taken in regard to him i.e an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved against him are not of such a character as a merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, it is at the stage of hearing of a departmental appeal. Such being the legal position, it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned

AIR 1986 SC 1173

order dealing with the contentions raised by him in the appeal......"

6. Further learned counsel for the petitioner relied on the

Judgment of the Hon'ble Apex Court in "Bhagat Raja Vs. Union

of India"2 wherein it was held as follows:

"9. ......The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art.136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected" or "dismissed". In such a case, this Court can probably only exercise its appellate jurisdiction, satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal......."

7. Learned counsel for the petitioner would contend that in

view of the ratio laid down by the Hon'ble Apex Court, the

impugned order dated 19.03.2014 issued by the 3rd respondent to

stoppage of two increments with cumulative effect, which was

confirmed in Appeal vide proceedings dated 06.10.2015 and

further confirmed vide Memo dated 07.02.2017 issued by the 1st

respondent is highly illegal and arbitrary. Therefore the said

proceedings are liable to be set aside.

1967 LawSuit (SC) 99

8. As could be seen from the material on record, the

Appellate Authority failed to appreciate the facts and explanation

submitted by the petitioner and simply confirmed the order of the

3rd respondent and imposed punishment of stoppage of two

increments with cumulative effect is unsustainable. Though some

of the charges were not proved and some of the charges proved as

per Enquiry Report. However, atleast Appellate Authority has to

peruse the Enquiry Report and after considering the factual

aspects shall pass a reasoned order, but such exercise could not

be done in this case.

9. In view of the decision cited supra, the case for giving

reasons or for making a speaking order becomes much stronger

when the decision can be challenged not only by the issue of a writ

of certiorari, but an appeal to the Court. Therefore, it is made clear

that the respondents not given fair opportunity to the petitioner to

defend his case and that it is fit case to set aside the impugned

order passed by the 3rd respondent dated 19.03.2014. Accordingly

the impugned order dated 19.03.2014 and also order passed in

appeal is hereby set aside.

10. In the result, the Writ Petition is disposed of, while

directing the respondents to decide the Appeal on merits and pass

appropriate orders in accordance with law afresh in the light of the

observations made. 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: 19.01.2023

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.727 of 2021

Date: 19.01.2023

KK