Andhra Pradesh High Court - Amravati

K. Mohan Das, vs The Chairman, Ap. S. Civil Supplies 2 ... on 29 October, 2024

  IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                    *HON'BLE SRI JUSTICE HARINATH.N
                    +WRIT PETITION No.12467 OF 2007
                               %29.10.2024
#Between:
   K.Mohan Das, S/o.K.Raja Rao, aged 42 years, R/o.Opp.Old I.T.I.,
   College Road, Sri Rama Colony, Ongole, Prakasham District.
                                                            ...Petitioner
                                   AND
   1. The Chairman, A.P.S.Civil Supplies Corporation Ltd., Civil
      Supplies Bhavan, Somajiguda, Hyderabad.
   2. The Vice Chairman & Managing Director, A.P.S.Civil Supplies
      Corporation Ltd., Civil Supplies Bhavan, Somajiguda, Hyderabad.
   3. The District Collector, Ongole, Prakasham District.
                                                        ...Respondents

Counsel for the Petitioners:

1. Sri. M.Surender Rao Counsel for the Respondents :

1. Sri. P.Hema Chandra (SC for Civil Supplies Corp Ltd)

2. Learned GP for Services I

3. Sri. Kalamata R Babu(SC AP Civil Suppl Corpn)

The Court made the following:

<Gist:

>Head Note:

? Cases referred:

1. Civil Appeal No.2608 of 2012, decided on 02.07.2018

2. AIR 1985 SC 1121, decided on 08.05.1985

3. Civil Appeal.No.254 of 2005, decided on 02.02.20210

4. Civil Appal No.4531 of 2007, decided on 13.08.2008

5. Appeal (Civil) No.140 of 2007, decided on 14.03.2008

6. Civil Appeal No.4104 of 2007, decided on 14.03.2014

7. Civil Appeal No.3655 of 2010, decided on 05.01.2015

8. [2023] 11 S.C.R 731 This Court made the following:

//2//

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI *HON'BLE SRI JUSTICE HARINATH.N +WRIT PETITION No.12467 OF 2007 %29.10.2024 #Between:

K.Mohan Das, S/o.K.Raja Rao, aged 42 years, R/o.Opp.Old I.T.I., College Road, Sri Rama Colony, Ongole, Prakasham District.

...Petitioner AND

1. The Chairman, A.P.S.Civil Supplies Corporation Ltd., Civil Supplies Bhavan, Somajiguda, Hyderabad.

2. The Vice Chairman & Managing Director, A.P.S.Civil Supplies Corporation Ltd., Civil Supplies Bhavan, Somajiguda, Hyderabad.

3. The District Collector, Ongole, Prakasham District.

...Respondents DATE OF ORDER PRONOUNCED : 29.10.2024

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE HARINATH.N

1. Whether Reporters of Local newspapers may be allowed to see the Judgments? Yes/No

2. Whether the copies of order may be marked to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair copy of the order?

Yes/No

___________________ JUSTICE HARINATH.N //3//

APHC010173582007

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3457] (Special Original Jurisdiction)

TUESDAY ,THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION NO: 12467/2007 Between:

K. Mohan Das,                                            ...PETITIONER
                                    AND
The Chairman A.P.S.Civil Supplies and Others        ...RESPONDENT(S)
Counsel for the Petitioner:
     1. Sri. M.Surender Rao
Counsel for the Respondent(S):

1. Sri. P.Hema Chandra (SC for Civil Supplies Corp Ltd)

2. Learned GP for Services I

3. Sri. Kalamata R Babu(SC AP Civil Suppl Corpn) The Court made the following Order :

The petitioner is challenging the orders dismissing the petitioner

from service passed by the Vice Chairman and Managing Director

of the 1st respondent.

2. The petitioner joined the respondent in the year 1989 as Typist

Grade - III in the office of District Manager, Civil Supplies

Corporation, Ongole. He was promoted as Grade - III Assistant in //4//

the year 1995. The petitioner during his service at the 1st

respondent was transferred from Ongole to Nellore. The petitioner

was suspended on account of non-delivery of 288.40 quintals of

FFW Rice allotted to Pulikonda Village and that he made fictitious

entries with respect to the said stock.

3. A charge memo dated 01.04.2003 was issued to the petitioner

and three charges were framed.

4. It is the specific case of the respondents that the petitioner had not

supplied 288.40 quintals of Rice to the beneficiary of FFW of

Pulikonda village. It is also the further case of the respondents

that the petitioner did not deliver 340.90 quintals of Rice to the

beneficiaries and as such he was also charged of making fictitious

entries in the records with ulterior motive. The petitioner submitted

his response to the charge memo.

5. The respondents conducted a detailed enquiry on the charges

framed and the enquiry officer has held that the charges leveled

against the petitioner were proved and forwarded the report to the

concerned officer. The 2nd respondent passed the impugned order

dated 27.08.2004, whereby, it was ordered that an amount of

Rs.16,26,992.20ps., was to be recovered towards double the cost

of the misappropriated rice from the petitioner. It was also ordered

that the petitioner shall deposit an amount of Rs.8,13,496.10 to //5//

the respondent/corporation within a period of 30 days from the

date of receipt of the order for considering the case of petitioner

for reinstatement. Recovery was also ordered from the salary and

also from the pension payable to the petitioner.

6. The petitioner submitted his reply to the order and also submitted

that he could not remit the amount as called upon as he received

the order only on 02.12.2004 and submitted his explanation that

the quantity of the alleged misappropriated rice was already

received by the beneficiaries and relied upon the statements of

the beneficiaries and sought for withdrawal of the order of

recovery and also sought for reinstatement.

7. The appellate authority vide order dated 15.10.2005 passed the

final orders dismissing the petitioner from corporation service for

misappropriation of 629.30 quintals of Rice at NLS.Chimakurthi

during the tenure of the petitioner as incharge besides recovery of

an amount of Rs.16,26,992.20/-. The appeal was placed before

the Board, however the Board rejected the appeal vide

proceedings dated 30.11.2006.

8. Sri.M.Surendra Rao, the learned senior counsel appearing for the

petitioner submits that the alleged quantity of 288.40 quintals of

rice was in fact supplied to fair price shop dealer of Pulikonda by

name V.Srinu and that the said rice was further distributed to the //6//

beneficiaries during 25.05.2002 to 31.05.2002 and the same

ought to have been verified from the stock register maintained by

fair price shop dealer. The further allegation that 341.90 quintals

of rice which was meant for food for work programme was

supplied to fair price shop rice ward 5 on 26.05.2002 and the

same was acknowledged by the shop dealer Smt.T.Eswaramma.

9. When the fair price dealers acknowledged the receipt of the rice

which is subject of the alleged misappropriation the charge No.3

relating to the petitioner making fictitious entries in the stock

register would not arise.

10. The learned senior counsel further submits that the 2 nd respondent

exhibited hostility towards the petitioner and the same is evident

by appointment of an enquiry officer without verifying the records.

The learned senior counsel further submits that the enquiry officer

donned the role of a prosecutor. The enquiry officer acted as if he

was investigating a case and went on fishing for evidence against

the petitioner. The same is evident from the manner in which the

enquiry officer addressed letters dated 22.05.2003, 12.06.2003 to

the District Manager Office, Ongole and another letter dated

16.06.2003 to District Manager Office, Ongole.

11. The learned senior counsel also submits that the charge memo

dated 01.04.2003 did not cite the names of any of the witnesses, //7//

however, the enquiry officer issued notices to six witnesses to

attend the enquiry on 25.06.2003. The learned senior counsel

submits that the role of an enquiry officer has to be neutral and

unbiased, however in the present case the enquiry officer donned

the role of a prosecutor, investigating officer, presenting officer

and an enquiry officer with a predetermined approach of

implicating the petitioner in the alleged misappropriation of stock

of PDS Rice.

12. The enquiry officer visited the offices of MRO and MPDO,

Chimakurthi as is evident from the enquiry report and collected

evidence. The enquiry officer submitted his report on 29.04.2003

by holding that the petitioner was guilty of all charges and held

that all the three charges were proved. A show cause notice dated

13.11.2003 was issued and the petitioner submitted his

explanation on 24.11.2003. The 2nd respondent after considering

the enquiry report and the findings of the enquiry officer and after

duly considering the reply of the petitioner has awarded

punishment of recovery of Rs.16,26,992.20/- towards double the

cost of the allegedly misappropriated rice and further directed the

remittance of an amount of Rs.8,13,496.10/- within a period of 30

days for considering his case for reinstatement. It was further //8//

ordered that three annual increments with cumulative effect would

be stopped w.e.f., 27.08.2004.

13. The learned senior counsel submits that the petitioner having

served the respondents for a period of 17 years without any

blemish, did not deposit the amount as called for, as he never

indulged in any misappropriation and as such he was not liable for

depositing the same.

14. The learned senior counsel further submits that the 288.40

quintals of PDS rice was supplied to the contractor by name

Sadineni Subbarao as per the mandate for the work at Pulikonda

and 330.90 quintals of rice were supplied to the contractor as per

the mandate and in accordance with the release orders of the

MROs.

15. As the petitioner failed to deposit the amount of Rs.8,13,496.10/-,

a show cause notice dated 16.03.2005 was issued calling upon

the petitioner to explain as to why he should not be dismissed

from service. The petitioner reiterated his stand and relied upon

the release orders dated 05.05.2002 and 22.05.2002 and

submitted that the rice had in fact reached the beneficiaries. The

2nd respondent passed the impugned order dated 15.10.2005 and

the appeal preferred by the petitioner was rejected by the Board

on 13.11.2006.

//9//

16. A criminal case was registered and the petitioner was tried in

CC.No.424 of 2008 and the evidences on behalf of prosecution

did not support the prosecution and the petitioner was acquitted in

that case. The learned senior counsel placed reliance on Union of

India Vs. Ram Lakshman Sharma1, the Hon'ble Supreme Court

held that the enquiry officer could not act as a Prosecutor and

ought to discharge his role as an independent adjudicator. The

learned senior counsel placed reliance on Anil Kumar Vs.

Presiding Officer and Others2, the Hon'ble Supreme Court held

that when a disciplinary enquiry affects the livelihood and is likely

to cast a stigma, it has to be held in accordance with the principles

of natural justice, the minimum expectation is that the report must

be a reasoned one. An order of termination based on such report

deserves to be set aside.

17. The learned senior counsel for the petitioner relied on State of

U.P and Others Vs. Saroj Kumar Sinha3, the Hon'ble Supreme

Court has held that an employee facing departmental enquiry is

entitled to all relevant statements and documents and other

material before he is called upon to submit his explanation. In the

present case the learned senior counsel for the petitioner submits

1 Civil Appeal No.2608 of 2012, decided on 02.07.2018 2 AIR 1985 SC 1121, decided on 08.05.1985 3 Civil Appeal.No.254 of 2005, decided on 02.02.20210 //10//

that the petitioner was unaware of the witnesses who were

proposed to be examined by the respondents. The learned senior

counsel for the petitioner relied on State of Uttaranhal and

Others Vs. Kharak Singh4, the Hon'ble Supreme Court has found

fault with the enquiry officer has exceeding his jurisdiction and the

case where principles of natural justice were not followed and thus

set aside the orders of dismissal passed by the disciplinary

authority. The learned senior counsel for the petitioner relied on

Union of India and others Vs. Naman Singh Sekhawat5, the

Hon'ble Supreme Court held that when the criminal court has

given a positive finding that the prosecution has not been able to

prove that the accused has misappropriated the goods, the

departmental proceedings would not have held otherwise.

18. The learned counsel for the respondents submits that a detailed

enquiry was conducted by the enquiry officer and ample

opportunity was given to the petitioner for participating in the

enquiry proceedings, as such the petitioner cannot claim that the

enquiry proceedings have violated the principles of natural justice.

It is submitted that the statements of the contractors were

obtained as an after thought only to wriggle out of the issue. The

contractors filed three writ petitions vide WP.Nos.3600 of 2004,

4 Civil Appal No.4531 of 2007, decided on 13.08.2008 5 Appeal (Civil) No.140 of 2007, decided on 14.03.2008 //11//

4099 of 2004 and 6148 of 2004 seeking supply of rice. All the writ

petitions were withdrawn, this would go to show that the petitioner

and the contractors were hand in glove in committing the

misappropriation of PDS Rice.

19. The statement of Sadineni Subbarao of Pulikonda village that he

received the FFW Rice stocks for the works executed by him and

that he never approached the High Court for filing a writ petition

would speak volumes of his involvement in commission of the

misappropriation.

20. The Officers responsible for effective supply and further

disbursement to the beneficiaries have found strong evidences

against the petitioner and the officers responsible for

implementation of the scheme have noticed glaring and evident

misappropriation committed by the petitioner. The learned counsel

further submits that the enquiry officer has a wider scope for

conducting an enquiry and enquiries in so far as misappropriation

of stock is concerned, the enquiry officer can call upon the other

officers in the system to submit the relevant information relating to

the issue. As such, the procedure followed by the enquiry officer

cannot be questioned or challenged. It is also submitted that no

charged officer would come forward and submit evidences against

himself for the enquiry to be conducted against him. It is also //12//

submitted that in cases of misappropriation of the rice meant for

food for work scheme programme, the regular modus of the

person incharge for misappropriating the rice is to divert them to

black market and make money. In this regard, there were several

complaints against the petitioner and that the press also had

publicised in the news papers about the manner in which the PDS

Rice was diverted to black market.

21. The learned counsel for the respondents further submits that the

stand taken by the petitioner before the Court that no documents

were supplied etc., do not find place in any of his representations.

Reliance is placed on Sub Rule 3 of Rule 20 and Sub Rule 9 of

Rule 20 of CCA Regulations and that the said regulations have

been followed by the respondents. It is also submitted that the

photocopy of the enquiry report was furnished to the petitioner and

after following the due process of law and principles of natural

justice the punishment which the petitioner deserved was imposed

on the petitioner. Reliance is also placed on undertaking of the

petitioner dated 17.08.2002 whereby he undertook to repay the

cost of rice not delivered and misappropriated. He further

undertook to raise money by taking a loan on his house property

from ICICI Bank on or before 25.08.2002. The denial of the

undertakings and setting up the statements of the contractors to //13//

the effect of the receipt of the stock are the disparate efforts of the

petitioner to escape the liability. The petitioner is guilty of

misappropriation and has unlawfully gained at the cost of the

poorest of the poor people in the drought effected areas. The food

for work scheme is the prestigious flagship programme of the

Government for the benefit of the rural unskilled workmen. The

learned counsel for the respondent places reliance on Rajasthan

State TPT Corpn. and another Vs. Bajrang Lal6, the Hon'ble

Supreme Court relying upon U.P. State Road Transport

Corporation Vs. Suresh Chand Sharmana held that the amount

misappropriated may be small or large and the act of

misappropriation is relevant. The only punishment in case of

proved case of corruption is dismissal from service. The learned

senior counsel for the respondent also relied on a judgment in the

matter of Diwan Singh Vs. Life Insurance Corporation of India

and others7, the Hon'ble Supreme Court declined to interfere with

the punishment of removal from service as the facts therein held

the charged employee guilty of misappropriation.

22. Considering the submissions of learned counsel appearing for the

parties, this Court after considering the enquiry report and the

impugned proceedings has to consider to what extent this Court

6 Civil Appeal No.4104 of 2007, decided on 14.03.2014 7 Civil Appeal No.3655 of 2010, decided on 05.01.2015 //14//

can exercise its writ jurisdiction in interfering with the impugned

orders.

23. The petitioner faced major allegation pertaining to

misappropriation of the food for work rice meant for distribution to

a rural unskilled, unemployed citizens. The enquiry officer

conducted detailed enquiry and has held that the petitioner is

guilty of all the three charges. The scheme of fraud in food for

work rice is complex and involves several players including the

contractors, distributors and the fraud does not complete its circle

without the involvement of the Government Servants who are

either incharge of implementation of the scheme or officers who

are incharge of the distribution of the rice to the beneficiaries.

24. The filing of writ petitions by the contractors claiming non-receipt

of the food for work rice in the year 2004 and subsequently

withdrawing them within a short span of time was also considered

by the enquiry officer. What is more surprising, the statement of

the contractor S.Subbarao that he never approached the High

Court and filed writ petition 6148 of 2004 speaks volumes of the

involvement of multiple people at multiple levels in successfully

committing the misappropriation of the rice.

25. The food for work scheme is guaranteed under three flagship

programmes of the Government (a) Mahatma Gandhi National //15//

Rural Employment Guarantee (b) National Rural Employment

Programme (c) Rural Employment Generation Programme. The

misappropriation of the said rice would benefit the middlemen and

would ultimately undermine the poverty alleviation efforts of the

Government. This Court finds no valid grounds to interfere with

the findings of the enquiry officer. This Court also doesn't find any

violation of principles of natural justice while conducting enquiry or

in imposing the punishment as deemed appropriate by the

competent authority.

26. The Hon'ble Supreme Court in Central Council for Research in

Ayurvedic Sciences and another Vs. Bikartan and others8,

wherein it was held that two cardinal principles of law governing

exercise of extraordinary jurisdiction under Article 226 of the

Constitution more particularly when it comes to issue of writ of

certiorari.

50.The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the

8 [2023] 11 S.C.R 731 //16//

face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.

64.Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.

27. It is no doubt well established law that this Court can exercise its

jurisdiction of judicial review if the petitioner is able to place the

case of the petitioner within the exceptions carved out by the //17//

established law and the various decisions of the Hon'ble Supreme

Court of India.

28. On the facts on hand in the present case, the petitioner could not

place his case for judicial review by this Court on the punishment

imposed by the disciplinary authority. Accordingly, this Court is not

inclined to grant any relief to the petitioner.

29. In the result, the writ petition is dismissed without costs.

Pending miscellaneous petitions, if any, shall stands closed.

____________________ JUSTICE HARINATH.N