Mkr Vijaya Kumari vs The State Of Andhra Pradesh
2023 Latest Caselaw 29 AP

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     THE HON'BLE SRI JUSTICE A.V. SESHA SAI
                        &
THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

                    W.A. No. 1057 OF 2022


JUDGMENT:(per A.V. Sesha Sai, J)


       In the present Writ Appeal, preferred under Clause

15 of the Letters Patent, the challenge is to the order dated

23.11.2022 passed by the learned Single Judge in W.P.(AT)

No.60 of 2021.

       The petitioner in the aforesaid Writ Petition is the

appellant in the instant appeal. The appellant herein is the

retired   Deputy     Director-Regional     Deputy     Director   in

Women Development and Child Welfare Department,

Government of Andhra Pradesh. The State Government

vide   Memo     No.8880/Estt.A2/99-5,         dated   03.02.2000,

issued a charge memo, framing the following charges

against the writ appellant:

       "ARTICLE No.I:
       THAT the said Smt. M.K.R. Vijaya Kumari, while
       working as Regional Deputy Director, Eluru used to call
       the minor girl viz., Shaik Begum alias Manjula aged
       about 14 years when she was kept at Working Women's
       Hostel, Eluru, to her residence for domestic work which
       is against the rules;
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     ARTICLE No.II:
     THAT Smt. M.K.R. Vijaya Kumari, left the above minor
     girl alone along with her nephew giving opportunity to
     him to misbehave and commit rape on the said girl viz.,
     Shaik Begum alias Manjula;

     ARTICLE No.III:
     THAT Smt. M.K.R. Vijaya Kumari, with an intention to
     safeguard her nephew, threatened the minor girl not to
     disclose the fact and shifted the girl to Mahila
     Pranganam, Tadikalapudu and tried to screen the
     offence intimidating the victim and other boarders of
     Working Women's Hostel, Eluru for the last several
     months by misuse of her official position."


In response to the said charge memo, the appellant herein

submitted explanation, denying the said charges on

25.07.2000. Thereafter, the State Government appointed

an enquiry officer on 26.09.2000, who conducted the

enquiry and submitted a report on 20.03.2006, stating that

the charges framed against the writ appellant herein could

not be proved by the department.

     Thereafter, the State Government issued a show-

cause     notice      of     disagreement         vide     Memo

No.8880/Estt.A3/1999, dated 29.04.2015. Responding to

the same, the appellant herein submitted her explanation

on   30.06.2015.    Subsequently,      the   Government        vide

G.O.Rt.No.167, Dept., for Women, Children, Disabled &

Senior Citizens (Estt.A3), dated 06.10.2015, passed an
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order, imposing the punishment of 10% cut in admissible

pension for a period of three years on the appellant herein.

Assailing the validity of the aforesaid order of punishment,

the appellant herein approached the Andhra Pradesh

Administrative Tribunal by filing Original Application. After

abolition of the said Tribunal, the said case stood

transferred to this Court and numbered as W.P.(AT) No.60

of 2021. The learned Single Judge, by way of order dated

23.11.2022, disposed of the said Writ Petition, setting aside

the order of punishment, however, left open to the

respondent-authorities to re-enquire and re-examine the

matter and pass a reasoned order in accordance with

Rules.

Obviously, felt aggrieved by the aforesaid order to the

extent of permitting the respondents to hold enquiry

afresh, the present Writ Appeal is filed before this Court by

the writ petitioner.

Heard Sri C. Srinivasa Baba, learned counsel for the

writ petitioner/writ appellant and Smt. Sumathi, learned

Government Pleader for Services-II for the respondents.

Learned counsel for the appellant submits that the

order of the learned Single Judge to the extent of

permitting the respondents to hold enquiry afresh is highly

erroneous and contrary to law. It is further submitted in

elaboration by the learned counsel that in the absence of

proper notice of disagreement as contemplated under Rule

21(2) of the Andhra Pradesh Civil Services (Classification,

Control & Appeal) Rules, 1991, the entire proceedings

culminated in inflicting the punishment against the writ

appellant gets vitiated. It is further submitted by the

learned counsel that the criminal prosecution launched

against the writ petitioner-appellant herein vide

S.C.No.420 of 2000 on the file of the Additional Assistant

Sessions Judge, Eluru, ended in acquittal on merits on

03.03.2003. It is also the submission of the learned

counsel that the witnesses and the documentary evidence

placed before the Sessions Court in the aforesaid Sessions

Case and the witnesses and evidence in the departmental

proceedings are one and the same. It is further submitted

by the learned counsel that pending disciplinary

proceedings, pursuant to charge memo dated 03.02.2000,

the respondent-authorities also issued another charge

memo vide G.O.Rt.No.95, Department for Women, Children

(Estt-A2) Disabled & Senior Citizens, dated 22.03.2011 and

the same was challenged before the Andhra Pradesh

Administrative Tribunal in O.A.No.2492 of 2011 and the

Tribunal vide order dated 02.09.2013 had set aside the

said charge memo and directed the respondents to

regularise the period of suspension from 02.12.1999 to

13.07.2003. Eventually, it is submitted by the learned

counsel that having regard to the above aspects, the

learned Single Judge ought not to have permitted the

respondents herein to enquire afresh. It is also the

submission of the learned counsel that the writ petitioner-

writ appellant herein retired from service on 31.12.2012

and is aged about 70 years.

On the contrary, Smt. Sumathi, learned Government

Pleader for Services-II, strongly resisting the Writ Appeal,

submits that there is absolutely no error nor there exists

any infirmity in the order passed by the learned Single

Judge, as such the order of the learned Single Judge is not

amenable to any correction under Clause 15 of the Letters

Patent. It is further submitted by the leaned Government

Pleader that since the learned Single Judge directed the

respondents to hold enquiry afresh after giving ample

opportunity to the writ petitioner-appellant herein, the

same would not cause any prejudice to the appellant, as

such the Writ Appeal is liable to be dismissed. It is the

further submission of the learned Government Pleader that

as the writ petitioner-appellant herein herself stated in her

explanation dated 30.06.2015 that the notice dated

29.04.2015 was a notice of disagreement, it is not open for

the writ petitioner-appellant herein to dispute the same.

In the above background, now the issues that emerge

for consideration of this Court in the present Writ Appeal

are as follows:

1. Whether the notice dated 29.04.2015 issued by the disciplinary authority, asking the writ petitioner-appellant herein to submit explanation is in accordance with the provisions of Rule 21(2) of the A.P. C.S. (CC&A) Rules, 1991?

2. Whether the order of the learned Single Judge to the extent of directing re-enquiry and re- examination, is sustainable and tenable?

3. Whether the appellant is entitled for any relief from this Court in the present Writ Appeal filed under Clause 15 of the Letters Patent?

The information available before this Court in lucid

and unequivocal terms, reveals that pursuant to the charge

memo dated 03.02.2000, the disciplinary authority

appointed an enquiry officer in the month of September,

2000 and the said enquiry officer submitted a report on

20.03.2006, holding that the charges framed against the

writ petitioner-writ appellant could not be proved by the

department. Obviously, disagreeing with the said findings

of the enquiry officer, the disciplinary authority issued

notice on 29.04.2015, asking the writ petitioner-appellant

herein to submit her explanation. In this context, it may be

appropriate and apposite to refer to Rule 21(2) of the

A.P.C.S. (CC&A) Rules, 1991. Rule 21 of the said Rules

deals with the action on the enquiry report. Sub-section (2)

of Section 21 deals with the procedure to be followed after

submission of the enquiry report in the event of there being

any disagreement on the same. Rule 21(2) of the A.P.C.S.

(CC&A) Rules, 1991, reads as follows:

"The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant."

It is very much evident from a reading of the above

said provision of law that it is obligatory and mandatory on

the part of the disciplinary authority to assign tentative

reasons for disagreement. The issue, which needs

consideration, is whether the disciplinary authority

adhered to the said provision of law. A perusal of the

aforesaid notice dated 29.04.2015 shows that except

stating that the Government provisionally decided to

impose a punishment and that the acquittal in Sessions

Case cannot be construed as a clean acquittal, the

disciplinary authority did not assign any reasons for

disagreement. It is required to be noted that the

department also initiated criminal prosecution against the

writ petitioner-appellant herein vide Sessions Case No.420

of 2000 on the file of the Court of the Additional Assistant

Sessions Judge, Eluru. A copy of the Judgment in the

aforesaid Sessions Case is placed on record. A perusal of

the said Judgment reveals, in clear and candid terms, that

the learned Additional Assistant Sessions Judge acquitted

the appellant on the ground that all the witnesses turned

hostile and the prosecution failed to prove the guilt of the

accused. As the learned Sessions Court cleanly acquitted

the writ petitioner-appellant herein in the Sessions Case,

the disciplinary authority in the show-cause notice dated

29.04.2015 ought not to have observed in the manner as

indicated supra. It is also pertinent to note in this context

that, as observed supra, pending disciplinary proceedings

pursuant to the charge memo dated 03.02.2000 which

culminated in the order impugned in the Writ Petition,

substantially on the same charges, an enquiry was

contemplated and the appellant herein approached the

Andhra Pradesh Administrative Tribunal by way of filing

O.A.No.2492 of 2011. The Tribunal vide order dated

02.09.2013, allowed the said O.A., setting aside

G.O.Rt.No.95, dated 22.03.2011, with a direction to the

respondent-authorities not to proceed with the enquiry on

the basis of the said charge memo and also directed the

respondents to regularise the period of suspension of the

appellant. It is also not in dispute that the order of

acquittal in S.C.No.420 of 2000 on the file of the Court of

the Additional Assistant Sessions Judge, Eluru, and the

order of the Andhra Pradesh Administrative Tribunal in

O.A.No.2492 of 2011, have attained finality. It is also

required to be noted that though the writ petitioner-

appellant therein submitted an elaborate explanation on

30.06.2015, except indicating the said explanation as one

of the references to the order of punishment, the

disciplinary authority did not make any endeavour to

consider the contents of the same, while passing the order

of punishment. In the considered opinion of this Court,

having regard to the nature of controversy and the factual

scenario, the learned Single Judge ought not to have given

liberty to the respondents herein to conduct enquiry

afresh.

For the aforesaid reasons, the Writ Appeal is allowed

and the order of the learned Single Judge dated

23.11.2022 in W.P.(AT) No.60 of 2022 is set aside to the

extent of permitting the respondents to re-enquire and re-

examine the matter and pass a reasoned order.

Consequently, W.P.(AT) No.60 of 2021 is allowed, setting

aside G.O.Rt.No.167, Dept., for Women, Children, Disabled

& Senior Citizens (Estt.A3), dated 06.10.2015. It is

needless to observe that the writ petitioner-appellant

herein is entitled for all the consequential benefits. No

order as to costs.

As a sequel, pending miscellaneous petitions, if any,

stand closed.

__________________ A.V. SESHA SAI, J

_________________________________ DUPPALA VENKATA RAMANA, J Date: 03.01.2023 Ks

THE HON'BLE SRI JUSTICE A.V. SESHA SAI & THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

W.A. No.1057 OF 2022 (per A.V. Sesha Sai, J)

Date: 03.01.2023

Ks