Telangana High Court
Ravinder Rathod vs The State Of Telangana And 2 Others on 1 April, 2021
Bench: P Naveen Rao
* THE HON'BLE SRI JUSTICE P. NAVEEN RAO
+ WRIT PETITION No.2779 of 2021
% 01.04.2021
# Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad District
.. Petitioner
And
$ The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others.
.. Respondents
! Counsel for the petitioner : Smt P.Kavitha for
Sri Ravinder Alkuchi
Counsel for respondents : Government Pleader for
Services-II
< Gist :
> Head Note :
? Citations:
1. (2006) 4 SCC 322
2. (2014) 4 SCC 108
3. (2013) 1 SCC 353
4. (1874) 5 PC 221
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HIGH COURT FOR THE STATE OF TELANGANA : HYDERABAD
********
WRIT PETITION No.2779 of 2021
Between :
Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad District
.. Petitioner
And
The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others
... Respondents
DATE OF JUDGMENT PRONOUNCED : 01.04.2021
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers : Yes / No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes / No
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : Yes / No
see the fair copy of the Judgment ?
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HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.2779 of 2021
Date : 01.04.2021
Between:
Ravinder Rathod S/o.Harichand,
Aged about 44 yrs, Occu : Deputy Tahsildar,
O/o.DCSO, Vikarabad Disrict.
..... Petitioner
And
The State of Telangana,
Rep., by its Principal Secretary,
Consumer Affairs, Food & Civil Supplies Department,
Telangana Secretariat, Hyderabad & others.
..... Respondents
The Court made the following:
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HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.2779 of 2021
ORDER:
Heard learned counsel for the petitioner and learned
Government Pleader for Services II appearing for the respondents.
2. Petitioner joined service as Junior Assistant in the year
2010, promoted as Senior Assistant in the year 2013, further
promoted as Deputy Tahsildar (Civil Supplies) in the year 2019
and now aspiring for promotion as Assistant Civil Supply Officer.
Petitioner is challenging the order of punishment dated 31.12.2016
withholding one annual increment without cumulative effect, as
affirmed by the Appellate Authority vide his proceedings dated
12.09.2017.
3. According to learned counsel for the petitioner, the
Disciplinary Authority has not followed the procedure specified in
Telangana State Civil Services (Classification, Control and
Appeal) Rules, 1991 (for short 'the CCA Rules, 1991'), more
particularly the procedure prescribed in Rule 20 while conducting
disciplinary proceedings and imposing punishment and on that
ground alone, the proceedings are liable to be set aside.
4. According to learned counsel, charges were framed under
Rule 20 of the CCA Rules. Rule 20 mandates to hold detailed
enquiry by following the procedure indicated therein, prepare
report of enquiry, call for explanation on the findings of enquiry,
consider the explanation against findings of Enquiry Officer and to
pass orders as warranted. Once charges are framed under Rule 20,
before imposing punishment, minor or major, per force, the entire
gamut of the Rule has to be observed. While so, in the instant
case, the said procedure was not followed. The Disciplinary
Authority called for explanation on the charges framed against
petitioner, considered the explanation offered by petitioner, held
personal hearing and straight away imposed punishment.
Aggrieved thereby, on appeal preferred by the petitioner, the
Appellate Authority desired to enhance the punishment, but again
without following due procedure, he straight away issued show
cause notice by recording the findings independently and called for
explanation. On submission of explanation, the Appellate
Authority though dropped the proceedings, without assigning
reasons, the order of punishment is affirmed. She therefore,
submitted that the entire procedure is ex-facie illegal and
therefore, the punishment imposed is not sustainable.
5. In support of her contentions, learned counsel for the
petitioner placed reliance on the decision rendered by this Court in
W.P.No.2753 of 2020 dated 27.07.2020.
6. Rule 9 of the CCA Rules specify range of punishments those
can be imposed against a delinquent employee. They are broadly
classified as major punishments and minor punishments.
Withholding of increment without cumulative effect is a minor
punishment. Rule 20 prescribes detailed procedure required to be
followed on charges drawn in accordance with the CCA Rules and
after the proceedings are concluded, it is open to the Disciplinary
Authority to impose any of the punishments specified in Rule 9.
Rule 22 prescribes summary procedure to impose minor
punishments. At the threshold, on noticing that an employee has
committed misconduct, the Disciplinary Authority may assess the
nature of delinquency as grave or minor. If he is of the opinion
that what is alleged is only a minor misconduct, he can resort to
Rule 22 to conduct summary proceedings and impose punishment.
If Rule 22 is resorted to, it is not required to conduct detailed
enquiry as specified in Rule 20. However, even in case of minor
misconduct decision to hold gamut of procedure envisaged under
Rule 20 or summary procedure has to be taken at the initial stage
only.
7. Rule 20 vests discretion in the Disciplinary Authority to
conduct enquiry on his own or to appoint an Inquiry Officer. In
case, the Disciplinary Authority appoints an Inquiry Officer, the
Inquiry Officer is required to follow detailed procedure, submit his
report holding the charges proved, partly proved or not proved. On
receiving the report of Inquiry Officer, it is for the Disciplinary
Authority to accept the report of Inquiry Officer and /or to drop
further proceedings. If he is not satisfied with the manner of
conducting enquiry by the Inquiry Officer, it is also open to him to
remit to the Inquiry authority to conduct enquiry denovo or from
the stage when the procedural infirmity was noticed. He is also
competent to disagree with the findings recorded by the Inquiry
Officer, record his disagreement note, communicate the
disagreement note and call for explanation of the delinquent
employee. If the Inquiry Officer holds the charge(s) as
proved/partly proved, he can call for the explanation of the
delinquent employee on the findings recorded by the Inquiry
Officer, consider the explanation offered and take a final decision
on the disciplinary action.
8. One of the primary requirements in a disciplinary action is to
observe gamut of procedure laid down in the CCA Rules. The
authority competent to take disciplinary action should alone
impose punishment by independent application of mind, after
affording due opportunity and by assigning reasons in support of
the decision. Punishment imposed should be prescribed in the
Rules/Regulations governing the service.
9. One of the important aspect of employment is control of
employer on conduct of his employees. He can discipline them and
penalize whenever they commit misconduct. When it comes to
judicial review of disciplinary action, the scope is limited.
Ordinarily, the Court tests the validity of disciplinary proceedings
by considering whether the parameters set out above are complied.
Once court is satisfied that procedural fairness was observed
ordinarily, it will not interfere in the disciplinary action. In a given
case, there can be an exception to this general principle, such as,
when punishment imposed is found to be disproportionate
compared to delinquency alleged and proved. However under no
circumstances, Court acts as an Appellate Authority. Even if there
is breach of procedural fairness, court does not set aside the
punishment as a matter of course. Court considers various aspects
such as whether prejudice is caused, nature of violation of
procedural safeguards, nature of charge leveled and most
importantly, delay. If violations are palpable, Court may set aside
the punishment and remand to Disciplinary Authority to conduct
proceedings de novo from the stage of infirmities noticed. In a
given case, having regard to the timeline of a case or to give
quietus to the litigation, court may substitute the punishment. In
retrospect, Court takes holistic view as facts unfold in a given case.
There can be no straight jacket formula.
10. Guided by broad contours of scope of judicial review,
reverting to the case on hand, a charge memo was drawn under
Rule 20. Though, Rule 20 requires observance of whole gamut of
the procedure, even if a minor punishment to be imposed, the
Disciplinary Authority has not observed the whole procedure. In
response to the charge memo, petitioner submitted detailed
explanation. The Disciplinary Authority decided to conduct enquiry
on his own. He therefore, issued notice to petitioner directing him
to attend for personal hearing; the employee attended for personal
hearing; in the personal hearing, he reiterated what was asserted
by him in the explanation and requested the Disciplinary Authority
to drop the disciplinary proceedings. The Disciplinary Authority
looked into the record, assessed the explanation offered by the
petitioner, and imposed punishment of withholding of one annual
increment without cumulative effect. This is classified as minor
punishment.
11. Against this order, petitioner preferred appeal to the
Commissioner on 16.01.2017. In the appeal, no objection was
raised on procedural infirmities. Did not plead prejudice caused to
him by not following procedure required by Rule 20. The grounds
urged were on merits of the allegations leveled against the
petitioner and sought for exonerating him. He urged the Appellate
Authority to take a lenient view and to drop the charges. He was
more concerned about his promotion. The Appellate Authority
adopted a strange procedure. He sought to disagree with the
punishment imposed by the Disciplinary Authority, suo-moto
decided to take disciplinary action by drawing up charges and
called for explanation of the employee. On a decision of
Disciplinary Authority, it is open to the Appellate Authority to
enhance the punishment or order for denovo enquiry. Decision to
enhance can be taken even while considering the appeal preferred
by the delinquent employee. However, before enhancing the
punishment, he must issue show cause notice to the employee and
call for his explanation. He cannot conduct enquiry on his own.
Thus, the procedure adopted by the Appellate Authority in
response to the appeal preferred by the petitioner against
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punishment imposed by the Disciplinary Authority was also
erroneous. It appears, better senses prevailed and
this mis-adventure was aborted. The Appellate Authority
summarily affirmed the decision of Disciplinary Authority.
12. Petitioner did not protest against the decision of Appellate
Authority, undergone punishment imposed and accepted the
promotion as Deputy Tahsildar prospectively after the currency of
punishment, though he was aware that his juniors were promoted
during pendency of disciplinary proceedings and while under
currency of punishment. Petitioner now claims that as his juniors
are now under consideration for further promotion, he should also
be considered for promotion. In other words, petitioner now
realizes that he cannot get promotion as Assistant Civil Supply
Officer, unless, he challenges the Disciplinary proceedings and gets
promotion retrospectively from the date of promotion of his juniors.
This realization impelled him to gear up the challenge on
procedural lapses in conducting disciplinary proceedings and
knock the doors of this Court, albeit after long time of arising
cause of action to him.
13. The fact remains petitioner is challenging the order of
punishment imposed on 31.12.2016 after four years. Much water
has flown under the bridge. Third parties have acquired rights.
Therefore, even assuming that procedural violations pointed out
are fatal to the invalidity of punishment imposed on petitioner and
is not sustainable, the question for consideration is should this
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Court exercise its equity jurisdiction to grant the relief which, per
force, upset the applecart.
14. In the facts of this case, the issue for consideration is
whether delay of about four years is fatal to deny the relief to
petitioner?
15. Accepting the contention of petitioner on procedural
violations in conducting disciplinary proceedings and setting aside
punishment would mean that matter should be reverted to the
stage of conducting enquiry afresh, pursuant to the charge memo
dated 20.05.2016. This course will throw up interesting scenarios,
not conducive to petitioner's narrative and to the detriment of
others promoted in the meanwhile. If the punishment order is set
aside and remanded to the Disciplinary Authority to conduct
enquiry afresh strictly in accordance with CCA Rules, it would
mean that disciplinary proceedings are pending when petitioner
was under consideration for promotion and when he was promoted
as Deputy Tahsildar. Therefore, in accordance with the policy of
Government as notified in G.O.Ms.No.257 General Administration
(Services-C) Department dated 10.06.1999, during pendency of
disciplinary proceedings, employee is not entitled to promotion,
though he is entitled for consideration for promotion. Thus,
promotion granted to him after he had undergone punishment,
per force, also gets vitiated and he should be reverted to the lower
post held by him. At any rate he cannot be considered for further
promotion as the disciplinary proceedings are stated to be pending.
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16. Conversely, if the order of punishment is set aside on the
ground that there is clear violation of procedural norms and not
granting relief of remitting the matter to the Disciplinary Authority
on the premise that the issue relates to period more than five years
by now petitioner is entitled to review of promotions made earlier,
which would affect promotion/s granted to his juniors, upsetting
settled issue of promotion and seniority.
17. On setting aside the punishment, it is mandatory for the
appointing authority to give effect to the recommendation of
Departmental Promotion Committee and to promote petitioner
retrospectively from the date of promotion of his immediate junior.
If earlier Departmental Promotion Committee did not consider the
petitioner, the Appointing Authority has to convene meetings of the
Departmental Promotion Committee (DPC) to review earlier
proceedings recommending promotion of juniors and to assess the
suitability of the petitioner. If the review DPC recommends
petitioner for promotion, the recommendation has to be given
effect to from retrospective date when immediate junior was
promoted. If earlier Departmental Promotion Committee
recommended petitioner for promotion but promotion was deferred
on the ground that disciplinary proceedings were pending, he is
entitled to promotion, again from the date of promotion of his
immediate junior.
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18. Consequent to granting retrospective promotion, if it is found
that all vacancies were filled up and no vacancy was available as
on that date to accommodate the petitioner, it may result in
reversion of junior most person promoted earlier. It will also alter
seniority position. As petitioner was ignored and juniors were
promoted they became seniors in the Deputy Tahsildar cadre. This
will have to be changed. It will also result in depriving one of them
further promotion as slot goes to petitioner.
19. Thus, adopting this course would be causing greater
injustice to those persons who were promoted based on their
suitability, conduct and service record, overlooking the petitioner.
Therefore, they are directly affected if any such exercise is
undertaken. Thus, it is not so simple as sought to be presented by
petitioner. It will have a cascading effect on others, no way
concerned and no way contributed to petitioner's fatigueness to
assert his right at appropriate time and in whose favour a parallel
right is created. They are not parties before this Court. Granting
any relief to the petitioner will impact on issues which are settled
long ago.
20. Assuming that there were procedural lapses in conducting
disciplinary proceedings, no one but petitioner has to blame
himself for closing his eyes on the procedural violations, accepting
the punishment, accepting the promotion from later date and
turning around only when he realizes that he cannot be considered
for further promotion, unless punishment order is set aside.
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Furthermore, it is appropriate to note that the allegation leveled
against the petitioner is grave. Petitioner does not assert as not
guilty, but tried to justify the circumstances leading to happening
of alleged incident of delinquency and prayed to excuse him. It is
appropriate to note at this stage that in departmental proceedings
to establish an allegation of misconduct what is required is
'preponderance of probability' and not concrete evidence like in
criminal proceedings. This disentitles him to seek equitable relief.
He can not be exonerated without taking the disciplinary action to
logical conclusion. Therefore, accepting his plea can have only one
consequence, i.e., to remand to the stage of drawing charge memo.
That may prove to be counter productive to petitioner's ambitions.
21. In the above analysis of facts and law, the delay in invoking
the jurisdiction of this Court, though sounds as only four years,
looming large and engulfs the aspirations of the petitioner.
22. Writ remedy is an extra-ordinary remedy, equitable and
discretionary. Article 226 of the Constitution of India does not
impose any restrictions to avail the remedy. It is very wide and all
encompassing. Whenever, an aggrieved person knocks the doors
of the Writ Court, the Court looks into the allegation of
infringement of the right of an individual, examines his claim and
redresses the grievance wherever injustice is caused. However,
Constitutional Courts have imposed self-restraint in exercise of
extra-ordinary jurisdiction under Article 226 of the Constitution of
India. One aspect which Court considers while assessing the
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grievance is whether petitioner slept over his right to agitate
against alleged illegality, allowed other events to take their course
and times to avail extraordinary remedy when it suits him,
leisurely. Thus, mere assertion against impingement of a right is
not sufficient, it must be asserted within a reasonable time of
arising of cause of action alleging such impingement and much
before the third party acquired his right encompassing the claim of
petitioner.
23. Ordinarily Writ Courts do not encourage stale claims even
assuming party makes out a case of infringement of his right.
Thus, in considering a grievance brought before the High Court in
a writ petition, delay, laches and conduct of the petitioner also
plays significant role and determines the course of the litigation.
Though, again, there is no hard and fast rule, impact of delay and
laches on the course of litigation depends on the facts of the case,
nature of grievance and relief prayed. Even though, there is delay
in filing writ petition, writ Court may still entertain a writ petition,
if it finds grave illegality in the decision affecting a person, no third
party rights have accrued in the meantime and petitioner explains
reasons for delay to the satisfaction of the Court. In a given case,
the Court may mould the relief, having regard to the delay in
instituting the writ petition. But, whenever, there is delay in
availing writ remedy important aspect to be taken into
consideration is whether in the meantime third party rights have
crept in.
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24. In service disputes, whenever a grievance is made on
infringement of right of an employee, in a writ petition instituted
after lapse of reasonable time, the Court is also required to look
into the aspect whether granting relief to petitioner would impact
any other employee. Writ Court may refuse to grant the relief, if in
the meantime third parties have acquired right and entertaining
the writ petition and granting relief would upset settled issue
particularly in matters of seniority and promotion. Court also
takes note of Rules/Regulations governing the service which deal
with time frame to avail redressal mechanism in assessing the
delay and latches.
25. When writ jurisdiction is invoked, unexplained delay coupled
with creation of third party rights in the meantime is an important
facet which also weighs with the High Court in deciding whether or
not to exercise such jurisdiction [Karnataka Power Corporation
Ltd Vs K.Thangappan1(Paragraph No.9)]. The Constitutional Court
has to keep itself alive to the primary principle that when an
aggrieved person, without adequate reason, approaches the Court
at his own leisure or pleasure, the Court would be under legal
obligation to scrutinize whether the lis at a belated stage should be
entertained (Chennai Metropolitan Water Supply and Sewerage
Board Vs T.T.Murali Babu2). However, the real test to determine
delay is that the petitioner should come to the Court before a
(2006) 4 SCC 322
(2014) 4 SCC 108
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parallel right is created but the test is not the physical running of
time (Badruka College of Commerce Vs State of A.P., Education
Department and others).
26. In Tukaram Kana Joshi Vs Maharastra Industrial
Development Corporation3, the Hon'ble Supreme Court held as
under :
"12. The State, especially a welfare State which is governed by the
rule of law, cannot arrogate itself to a status beyond one that is
provided by the Constitution. Our Constitution is an organic and
flexible one. Delay and laches is adopted as a mode of discretion
to decline exercise of jurisdiction to grant relief. There is another
facet. The Court is required to exercise judicial discretion. The
said discretion is dependent on facts and circumstances of the
cases. Delay and laches is one of the facets to deny exercise
of discretion. It is not an absolute impediment. There can be
mitigating factors, continuity of cause action, etc. That apart, if
the whole thing shocks the judicial conscience, then the
Court should exercise the discretion more so, when no third-
party interest is involved. Thus analysed, the petition is not hit
by the doctrine of delay and laches as the same is not a
constitutional limitation, the cause of action is continuous and
further the situation certainly shocks judicial conscience.
(emphasis supplied)
27. In Shiv Das Vs Union of India and Others, the Hon'ble
Supreme Court approved the view taken by the Privy Council in
Lindsay Petroleum Co., Vs Prosper Armstrong Hurd4. It reads as
under :
7."What was stated in this regard by Sir Barnes Peacock in
Lindsay Petroleum Co., Vs Prosper Armstrong Hurd, PC at P.239
was approved by this Court in Moon Mills Ltd. Vs M.R.Meher (AIR
(2013)1 SCC 353
(1874) 5 PC 221
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1967 SC 1450 and Maharastra SRTC Vs Balwant Regular Motor
Service (AIR 1969 SC 329), Sir Barnes had stated :
"Now the doctrine of laches in courts of equity is not an arbitrary
or technical doctrine. Where it would be practically unjust to give
a remedy either because the party has, by his conduct done that
which might fairly be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a situation in
which it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of time
and delay are most material. But in every case, if an argument
against relief, which otherwise would be just, if founded
upon mere delay, that delay of course not amounting to a
bar by any statute of limitation, the validity of that defence
must be tried upon principles substantially equitable. Two
circumstances always important in such cases are, the
length of the delay and the nature of the acts done during
the interval which might affect either party and cause a
balance of justice or injustice in taking the one course or the
other, so far as relates to the remedy."
(emphasis supplied)
28. Learned counsel for the petitioner sought to emphasize that
in W.P.No.2753 of 2020, the Court having found that grave
illegalities were committed in taking disciplinary action, even
though writ petition was filed after six and half years on arising of
cause of action, the relief was granted to the writ petitioner therein.
29. No doubt, in the said writ petition, the Court came down
heavily on the manner in which proceedings were conducted and
though Court noticed that there was inordinate delay in invoking
the jurisdiction of writ Court, it granted relief to the petitioner
therein. However, on a closure look at the facts, the decision
therein can not come to the rescue of the petitioner. From
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paragraphs 33 and 35 of the said judgment it is seen that it was a
case of prolonged disciplinary action; that procedure laid down by
the CCA Rules to impose major punishment was observed more in
breach; that repeated disciplinary action was initiated on the same
issue; and that there was no independent application of mind by
the Disciplinary Authority but acted as per the directions of the
Appellate Authority. The Court held that the punishment imposed
was vitiated on all counts.
30. The Court molded the relief while setting aside the
punishment. The punishment imposed therein was withholding of
two annual increments with cumulative effect. Which is a major
punishment as employee is deprived of increments permanently.
While so, the Court only ordered releasing of increments withheld.
The Court further ordered notional fixation of annual increments,
but denied him arrears of amounts on restoration of annual
increments and granted further consequences prospectively. The
Court also held that petitioner therein was not entitled to claim
retrospective promotion even if junior to him was granted
promotion from earlier date.
31. In the instant case the punishment imposed is withholding
of one annual increment without cumulative effect. The effect of
such punishment is, the employee is denied annual increment
during the currency of the punishment, but his increment will be
released as soon as punishment period is over. Therefore, no
cumulative effect results in imposing such punishment. Thus, it is
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not necessary to pass order to release increment at this stage. The
basis of instituting this writ petition, challenging the punishment
is to secure promotion as Deputy Tahsildar retrospectively from
the date of promotion of his juniors. In the case relied upon by
learned counsel for the petitioner, the Court having noticed that
third party interests have crept in the meantime, any relief granted
to the petitioner therein would affect the claim of third parties,
denied promotion from the date of promotion of junior. By parity
of reasoning, in the instant case also petitioner is not entitled to
such relief. Further, the petitioner therein gave up the claim of
promotion from retrospective date and therefore, limited relief was
granted to the petitioner therein. In the instant case, petitioner is
not giving up the claim of retrospective promotion. Unless
retrospective promotion is granted to him, he cannot be considered
for further promotion along with his earlier juniors.
32. For the aforesaid reasons, petitioner is not entitled to the
relief prayed and the writ petition is liable to be dismissed.
It is accordingly dismissed. Pending miscellaneous petitions stand
closed.
__________________
P NAVEEN RAO,J
DATE:- 01.04.2021
Rds/tvk
Note: L R Copy to be marked--YES
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HONOURABLE SRI JUSTICE P. NAVEEN RAO
WRIT PETITION No.2779 of 2021
Date : 01.04.2021
