B.Anjineyulu B.Anandh Kumar vs The Andhra Pradesh State
2023 Latest Caselaw 2765 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

              WRIT PETITION No.18525 OF 2020

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-

"To issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus to declaring the impugned proceedings in R.C.No.A3/101/PR/03/COMDT-VJA/APSPF/ 2020/D.No.1829 dated 22.09.2020 of the 4th respondent removal from the service of the petitioner basing on the Report of Fresh/Second enquiry dated 25.08.2020 in view of the proceedings in R.C.No.A3/101/PR/02/COMDT- VJA/APSPF/2020/D.No.629 dated 13.04.2020 of the 4th respondent even though all the disciplinary proceedings cancelled against the petitioner as illegal arbitrary and violative of the articles 14, 16, 21 and 311 of Constitution of India and contrary to the APCCA rules apart from the Judgments from the Apex Court and set aside the same and consequentially to suspend the impugned proceedings in R.C.No.3/101/PR/03/COMDT- VJA/APSPF/2020/D.No.1825 dated 22.09.2020 and pass such other orders."

2. The present Writ Petition is filed to set aside the order

of removal of the petitioner herein from service, vide order dated

22.09.2020 in R.C.No.3/101/PR/03/ COMDT-VJA/APSPF/2020

/D.No.1825, on the ground that fresh/de novo enquiry is not

permissible under Rule 20(11)(c)(i) of the Andhra Pradesh Civil

Services (Classification, Control and Appeal) Rules, 1991.

3. The allegation against the petitioner herein is that he

(B.Anjaneyulu @ B.Anandh Kumar, H.C.1533) conspired with

one M.Ravi Babu, Ex.CT-2459 (Constable of APSPF), who was

retired compulsorily in the said post and D.Raja Babu, Ex.HC-

672, APSPF, to eliminate Sri M.Sankara Rao, Assistant

Commandant, SPF, Tirupati. The said M.Sankara Rao has

lodged a complaint with Alipiri Police Station on 13.05.2017

alleging that the petitioner herein has threatened him with dire

consequences through voice recording and after getting

permission from the Court, a case in Crime No.115 of 2017 was

registered for the offences punishable under Section 506 IPC

read with Section 34 IPC on 15.05.2017. Later, a charge sheet

was issued by the inquiring authority with the following charge,

as follows:

"That the said Sri B.Ananda Kumar, HC 1533 while working at TSSPF unit, High Court, Hyderabad, made a conversation over his mobile phone (Mobile No.9440206615) with Sri M.Ravi Babu, Ex CT 2459 (mobile No.9490942459) who was compulsorily retired from service and conspired a plan to kill the senior officers of APSPF i.e., Sri B.V.Rami Reddy the then Commandant, now DIG SPF, Sri D.N.A.Basha, Commandant and Sri M.Sankara Rao, Asst. Commandant. Further he has instructed Sri M.Ravi Babu, Ex-CT, SPF to circulate this conversation among all SPF members in a disparate attempt to create disaffection in the armed force.

Sri M.Sankara Rao, Asst. Commandant, lodged a complaint along with a CD containing his mobile phone conversation with the said Ex CT-2459 Sri M.Ravi Babu at Alipiri PS, Tirupathi on 13.05.2017. Accordingly, a criminal case in Cr.No.115/2017, U/s 506 IPC r/w 34 IPC dated: 15.05.2017 was registered against him at Alipir P.S. Tirupathi urban Police District wherein he was marked as Accused-1 (A1). Thus, he involved in criminal activities by hatching a plan to assassinate superior officer of SPF

and attempted to spread disaffection in this disciplined armed force SPF.

By the above act, he was exhibited gross misconduct, which is un-becoming of Government servant thereby violating Rule-3 of APCS (Conduct) Rules, 1964. "

4. The inquiring authority has conducted a detailed

enquiry and submitted a report, vide proceedings dated

22.04.2019, holding that the charge framed against the

petitioner was proved and he was found guilty of the charge and

the enquiry report was forwarded to the disciplinary authority

and the disciplinary authority, vide proceedings dated

13.04.2020, has ordered for fresh enquiry as per the CC&A

Rules and on receiving the FSL Report, directed the inquiring

authority to issue a charge memo afresh and call for explanation

from the charged officer.

5. As per the proceedings dated 13.04.2020, the matter

was referred to the inquiring authority and the similar charge as

indicated above was framed against the petitioner herein. Again

a show cause notice was issued to the petitioner and the

petitioner herein made a detailed explanation to the show cause

notice and stated that there is no provision under Rule 19 of the

Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991, to conduct fresh enquiry or re-enquiry and

a fresh enquiry cannot be conducted due to lack of any statutory

provision and also further stated that the criminal case was filed

against him was initially referred as a mistake of fact and

therefore no enquiry can be conducted against the petitioner

herein for the very same charge.

6. After considering the explanation submitted by the

petitioner herein, a second enquiry was conducted under due

procedure as contemplated under Rule 20 of the CC&A Rules

and the charge was proved against the petitioner herein beyond

reasonable doubt and the inquiring authority has forwarded the

enquiry report to the disciplinary authority and the disciplinary

authority, vide proceedings dated 22.09.2020, has passed orders

removing the petitioner herein from service with immediate effect

under Rule 9(ix) of the Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, 1991.

7. The said order is impugned in the present Writ

Petition on the ground that there is no such provision of de novo

enquiry is contemplated under the CC&A Rules to conduct

fresh/de novo enquiry.

8. It is contended by the learned counsel for the

petitioner herein that Rule 20(11)(c)(i) of the Andhra Pradesh

Civil Services (Classification, Control and Appeal) Rules, 1991,

says that the inquiring authority shall give the government

servant an opportunity of inspecting such documents before they

are taken on the record.

9. In order to answer the said issue, it is necessary to

extract Rule 21 of the Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, 1991, which is

extracted as follows:

"21. Action on the inquiry report: -

(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority

shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be.

(2) 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 favorable or not to the Government servant.

(3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub-rules (4) and (5) below.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 9 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 22, make an order imposing such penalty:

(5) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the

basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses

(vi) to (x) of Rule 9 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed."

10. Learned counsel for the petitioner relied on the

judgment of the Hon'ble Apex Court in K.R.Deb v. Collector of

Central Excise1. In the said judgment, the punishment was set

aside on the ground that no proper inquiry was conducted and

some serious defects have been crept into the inquiry and for not

examining some important witnesses who were not available at

the time of the inquiry or were not examined for some other

reason, the disciplinary proceedings were set aside. That is not

the issue in the present case.

11. Learned counsel for the petitioner also relied on the

judgment of the Hon'ble Apex Court in the case of Chairman-

cum-M.D. Coal India Ltd., and others v. Ananta Saha and others2

AIR 1971 SC 1447

AIR 1991 SC 2010

and in UCO Bank and another v. Rajinder Lal Capoor 3, for the

proposition that it was not permissible for the inquiring

authority/disciplinary authority to proceed on the basis of the

charge sheet issued earlier, the question of initiating a fresh

enquiry without giving a fresh charge sheet would not arise and

that the Hon'ble Apex Court eventually held that after

considering the number of judgments, it allowed the authorities

to proceed with the enquiry.

12. In the present case, a fresh show cause notice was

issued and called for explanation from the petitioner/delinquent

and he submitted his explanation and a detailed enquiry was

conducted. Hence, the proposition relied on by the petitioner

herein is not applicable to the present facts of the case.

13. Per contra, learned Government Pleader for Services-I,

Sri G.V.S.Kishore Kumar, filed counter and denied all the

assertions made in the writ affidavit and relied on the judgment

of the Hon'ble Apex Court in State of Karnataka and another v.

(2007) 6 SCC 694

Umesh4, Union of India and others v. Const. Sunil Kumar5, Union

of India and others v. Managobinda Samantaray 6 and Union of

India and others v. Ex. Constable Ram Karan 7 for the proposition

that Constitutional Courts while exercising power of judicial

review do not assume the role of the appellate authority, writ

jurisdiction is circumscribed by limits of correcting errors of law,

procedural error leading to manifest injustice or violation of

principles of natural justice and the Court cannot set aside

penalty order, it is to be left to the disciplinary

authority/appellate authority to take a call and it is not for the

Court to substitute its decision by prescribing the quantum of

punishment.

14. In Lucknow Kshetriya Gramin Bank v. Rajendra Singh

(Lucknow Kshetriya Gramin Bank v. Rajendra Singh) 8, the

Hon'ble Supreme Court has laid down some principles, which

are extracted as follows:

(2022) 6 SCC 563

2022 SCC Online SC 56

2022 SCC Online SC 284

(2022) 1 SCC 373

(2013) 12 SCC 372

"19. The principles discussed above can be summed up and summarized as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.

19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court.

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.

19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co- delinquent is awarded lesser punishment by the disciplinary authority even when the charges of

misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable."

15. After considering the submissions made by both the

learned counsel, the issue raised in the present Writ Petition is

that the respondent-authorities cannot conduct a fresh de novo

enquiry under the Andhra Pradesh Civil Services (Classification,

Control and Appeal) Rules, 1991. As per the rule as extracted

above under sub-clause (1) of Rule 21 of the said Rules. Rule 21

of CCA rules is two-fold under sub-rule (1): that the employer

has an unfettered right to order a fresh enquiry if he is not

satisfied with the enquiry report is based on a thorough

misconception of law. If the disciplinary authority is not satisfied

with the enquiry, it may, for the reasons to be recorded in

writing, remit the case to the inquiring authority for further

enquiry and report. Under sub-clause (2) if the disciplinary

authority has intended to take decision forward a copy of the

inquiry report to the government servant calling for explanation

on receiving such explanation the disciplinary authority may

take its own decision for imposing punishment. On conjoint

reading of both the sub-clauses it is implicit that the disciplinary

authority can remit to the enquiry officer a fresh, if it is

dissatisfied with findings of the enquiry authority or else it can

impose punishment calling explanation from the government

servant by forwarding the enquiry report.

16. Under the said Rule, a second or fresh enquiry can be

ordered by following procedure under Rule 20 of the Andhra

Pradesh Civil Services (Classification, Control and Appeal) Rules,

1991.

17. In the present case, a fresh show cause notice was

issued by the authorities to the delinquent/petitioner herein and

the petitioner herein has offered his explanation and after

conducting a detailed enquiry, the charge against the

petitioner/delinquent was proved and in the first report, a

reason was given for ordering of the second and fresh enquiry. A

fresh enquiry was ordered on receiving of the FSL report. On the

said premise, a fresh enquiry was ordered. As per the provision

contemplated, a reason was assigned to conduct fresh enquiry

and it is permissible under Rule 21 of the Andhra Pradesh Civil

Services (Classification, Control and Appeal) Rules, 1991, to

conduct fresh enquiry and this Court is fortified with the

judgment of this Court in K.Nagaraju v. State of Andhra Pradesh,

represented by its Principal Secretary, Municipal Administration

and Urban Development Department, Guntur District and

another9. In the said judgment, at paragraph No.4, the Court

observed that the Government has got the power and privilege to

order fresh enquiry and that the view of the Tribunal that the

employer has an unfettered right to order a fresh enquiry if he is

not satisfied with the enquiry report is based on a thorough

misconception of law. Relying on the provisions of Rule 21 of the

Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991, it is the only case of the petitioner herein

that the respondents cannot conduct de novo or fresh enquiry,

(2017) 5 ALT 498 (DB) = (2017) 6 ALD 218 (DB)

as per Rule 21 of the Rules and the authority has power to

conduct fresh enquiry. The judgments relied on by the

respondents are not applicable to the present facts of the case,

for the query raised by the petitioner herein.

18. In view of Rule 21 of the Andhra Pradesh Civil

Services (Classification, Control and Appeal) Rules, 1991, I found

no flaw in the order and I do not see any reason to meddle with

the order which is impugned in the present Writ Petition.

Therefore, the present Writ Petition is liable to be dismissed.

19. Accordingly, this Writ Petition is dismissed. There

shall be no order as to costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 03.05.2023 Note: Issue cc by 09.05.2023 B/O siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.18525 OF 2020

Date: 03.05.2023

siva