Andhra Pradesh High Court - Amravati
M Shyam Sunder vs The State Of Ap on 23 August, 2024
1
APHC010344382020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 22851 OF 2020
Between:
M.Shyam Sunder ...PETITIONER
AND
The State of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. D KRISHNA MURTHY
Counsel for the Respondent(S):
1. GP FOR ENERGY
2. ANUP KOUSHIK KARAVADI(SC FOR APTRANSCO)
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India
"to
to issue a Writ or Order or Direction more particularly one in the nature of
Writ of Mandamus declaring the impugned order made by the third respond
respondent in
Memo.No.CGM(HR)/DGM/
CGM(HR)/DGM/ (Discipline)/ AEE (Discipline) 1555-NA/94(3),
NA/94(3), dated
th
13.10.2020 confirming the orders of the 4 respondent in Memo. CGM (HRD &
Plg)/EE/DC/AEE/DC/1555
)/EE/DC/AEE/DC/1555-NA/94(2),
NA/94(2), dated 26.02.2020 imposing the punishment of
withholding of two increments with cumulative effect on the petitioner as illegal,
arbitrary and unjust and pass such other and further orders".
2. Heard Mr. D.Krishnamurthy, learned counsel for the petitioner;
learned Assistant Government Pleader, Energy, for the 1st respondent and Mr.
Anup Koushik Karavadi, learned Standing Counsel for the respondents 2 to 4.
3. Learned counsel for the petitioner would contend that he was
appointed as Junior Accounts Officer in erstwhile APSEB and now he is
working in the office of FA & CCA (R&E), AP TRANSCO, Vijayawada. The
petitioner was placed under suspension on the ground of alleged misusing the
L.O.As vide orders dated 29.11.1994 along with 11 other employees on the
same charges. An enquiry was conducted and filed report that no alleged
scam could be proved and advised to await the outcome of the Criminal
Proceedings and other 11 employees were reinstated into service. In spite of
two enquiry reports holding that the charges are not proved, the AP
TRANSCO has again chosen to conduct fresh enquiry by appointed one
retired District Judge as Enquiry Officer, who conducted fresh enquiry and
submitted a report on 14.06.2007 holding that the charges are not proved.
Having not satisfied with the enquiry report dated 14.06.2007, again directed
the 3rd respondent to conduct further enquiry, who conducted enquiry and
submitted report stating that charges are not proved. The AP TRANSCO
finally taken a decision to disagree with the report dated 26.03.2009 submitted
by Mr. K. Ranga Rao, Retired District Judge, basing on the written arguments
filed by the prosecution in C.C.No.129 of 1996 directed the petitioner to submit
explanation as to why the Competent Authority should not defer with the
finding of the Enquiry Officer in his reports dated 14.06.2007 and 26.03.2009.
The petitioner has submitted his explanation. The case in C.C.No.125, 126
and 132 of 1996 on the file of the VI AMMC, Hyderabad convicted the
petitioner. Assailing the same, the petitioner preferred Criminal Appeal Nos.
439, 440 and 441 of 2009 and the same was allowed, acquitting the petitioner
in criminal case. The Hon'ble Division Bench of this Court vide order dated
23.04.2019 in W.P.No.4236 of 2010 set aside the order of dismissal dated
07.01.2010, holding that the dismissal from service is not sustainable in view
of acquittal in Criminal Case and directed the AP TRANSCO to reinstate the
petitioner into service. Despite, several representations for reinstatement of
the petitioner, pursuant to the orders of this Court, the respondents, the
petitioner has joined duty on 13.06.2019. Later the 4th respondent again
issued a Memo dated 17.07.2019 asking the petitioner to submit his
explanation as to why the finding of the Inquiry Officer in the reports dated
14.06.2007 and 23.06.2009 should not be deferred. The petitioner has
submitted detailed explanation stating that there are no grounds to defer with
the findings of the Inquiry reports. But the 4th respondent passed an order
dated 26.02.2020 deferring with the reports of the Inquiry Officer dated
14.06.2007 and 23.06.2009 and imposed the punishment of 'withholding of
two increments with cumulative effect'. Assailing the same, the petitioner has
filed an appeal before the 3rd respondent, which was rejected without
considering the issues raised by the petitioner. Aggrieved by the same, the
petitioner filed this Writ Petition.
4. The respondents 2 to 4 filed counter affidavit denying all material
averments made in the writ affidavit and mainly contended that as per order of
this Court dated 23.04.2019, the petitioner has been reinstated into service
vide Memo dated 28.05.2019 and he was re-posted in the office of the FA
&CCA (R&E), APTRANSCO/ Vijayawada and he joined as JAO on
13.06.2019. Since disciplinary proceedings is being pending, a Show Cause
Notice dated 17.07.2019 has been issued to the petitioner directing him to
submit reply. Accordingly the petitioner has submitted his explanation. Not
satisfied with the explanation, the disciplinary authority has issued final orders
dated 26.02.2020 awarding the punishment of 'withholding of two increments
with cumulative effect'. Subsequently appeal also dismissed by confirming the
final orders issued vide Memo dated 26.02.2020. The petitioner was convicted
vide Judgement passed in C.C.Nos. 125, 126 and 132 of 1996 and on appeal
vide judgments dated 29.12.2009 in Cr.M.P.Appeal No.439, 440 and 441 of
2009 has been suspended only the sentence, but not the conviction of the
petitioner. Having disagree with the enquiry reports dated 14.06.2007 and
26.03.2009 of Mr. K. Ranga Rao and having examined the explanation dated
30.12.2019 submitted by the petitioner, the Disciplinary Authority has
observed that he has failed to discharge the duties in processing of LOAs at
Table No.1 which constitutes Misconduct as per Rule 4 of Misconduct of
APSEB conduct rules adopted by AP TRANSCO to negligent work. Therefore,
punishment of withholding two increments with cumulative effect is reasoned
and not illegal and arbitrary as claimed by the petitioner. Hence, requested to
dismiss the writ petition.
5. Perused the record.
6. Learned Standing Counsel for the respondents vehemently argued
that having not satisfied the explanation submitted by the petitioner and also
enquiry reports, the Disciplinary Authority observed that the petitioner has
failed to discharge the duties in processing of LOAs at Table No.1, which
amounts to misconduct as per Rule 4 of Misconduct of APSEB Conduct rules.
The acquittal of the petitioner vide Judgment dated 30.05.2016 of IV
Additional Metropolitan Sessions Judge, Hyderabad has got nothing to do with
the negligence while performing his official duties. Hence, punishment of
'withholding two increments with cumulative effect awarded final order dated
26.02.2020 is for the failure in discharging his official duties. Therefore, it
cannot be declared as illegal, arbitrary. In support of his contention, learned
Standing Counsel for the respondents relied on a decision in "Maharashtra
State Road Transport Corporation v. Dilip Uttam Jayabhay"1, wherein the
Hon'ble Division Bench of Supreme Court held as follows:-
"10.4....As per the cardinal principle of law an acquittal in a criminal
trial has no bearing or relevance on the disciplinary proceedings as the
standard of proof in both the cases are different and the proceedings operate
the different fields and with different objectives. Therefore, the Industrial Court
has erred in giving much stress on the acquittal of the respondent by the
criminal court. Even otherwise it is required to be noted that the Industrial
Court has not interfered with the findings recorded by the disciplinary authority
2022 LiveLaw (SC) 3
holding charge and misconduct proved in the departmental enquiry, and has
interfered with the punishment of dismissal solely on the ground that same is
shockingly disproportionate and therefore can be said to be an unfair labour
practice as per Clause No.1(g) of Schedule IV of the MRTU & PULP Act,
1971."
7. Learned Standing Counsel for the respondents vehemently argued
that an acquittal in a criminal case has no bearing or relevance on the
disciplinary proceedings as the standard of proof in both the cases are
different and the proceedings operate in different fields and with different
objectives. Therefore, the writ petition is liable to be dismissed.
8. Whereas, learned counsel for the petitioner vehemently argued that
series of enquiries conducted by the respondents and submitted respective
reports and on similar allegations, criminal case also registered and same was
ended in acquittal by the appellate court. Therefore, the petitioner is not found
guilty and that the said judgment is binding. But after ended in acquittal of
criminal case, the respondents again and again conducting enquiries are
meaningless and abuse of process of law. Therefore, the impugned order
dated 13.10.2020 issued by the 3rd respondent by confirming the order of the
4th respondent dated 26.02.2020 imposing the punishment of withholding of
two increments with cumulative effect on the petitioner is highly illegal and
arbitrary.
9. As could be seen from the order of the Hon'ble Division Bench of this
Court in W.P.No.4236 of 2010, wherein it was opined that if the petitioner had
been in service as on the date of bifurcation of the State, he would have been
provisionally allocated to AP TRANSCO. Hence, they cannot avoid
responsibility to reinstate and proceed further. Further observed in the said
Judgment that the impugned order of dismissal dated 07.01.2010 would show
that the dismissal was solely based upon the conviction by the Criminal Court.
Therefore, once the conviction is set as aside, the order of dismissal will have
no legs to stand and should naturally follow suit, which is undisputed fact.
Pursuant to the order of this Court dated 23.04.2019 the respondents
reviewed the suspension period from 07.01.2010 to 13.06.2019 and allowed
to draw subsistence allowance at the rate of 50% of the pay and allowance
admissible for the said period vide proceedings dated 10.12.2019.
10. However, charges framed against the petitioner found not guilty as
per enquiry reports and further the criminal case was ended in acquittal by
way of Appeal, nothing will be enlighten again and again on same charges.
Therefore, this Court finds that the respondents are created complicity in the
matter by causing obstruction to the petitioner since 1994 is highly illegal and
arbitrary. Further, the other officers were also reinstated into service. Under
these circumstances of conducting enquiry on the petitioner again and again
is highly unwarranted, despite ended in acquittal in criminal case by way of an
Appeal. Hence, the writ petition is deserved to be allowed.
11. Having regard to the facts and circumstances of the case and
considering the submissions of both the counsel, this Court is declaring the
impugned order dated 13.10.2020 issued by the 3rd respondent confirming the
order of the 4th respondent dated 26.02.2020 imposing the punishment of
withholding of two increments with cumulative effect on the petitioner as illegal
and arbitrary and same is hereby set aside.
12. Accordingly, the Writ Petition is allowed. There shall be no order as
to costs.
The miscellaneous applications pending, if any, shall also stand closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 23.08.2024
KK
