Telangana High Court

Syed Rafiuddin Ahmed,Died Per Lrs vs A.P. Transco, on 1 December, 2021

Bench: P.Madhavi Devi

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


               WRIT PETITION NO.26823 OF 2003


                             ORDER

This Writ Petition is filed by the petitioners seeking a Writ of

Certiorari or any other appropriate Writ by quashing the proceedings

in Memo No.CE/TL & SS & HL/HYD/SAO/JAO.I/F No. CONFLD

D.No.451/2002 dt.25.07.2002 and Memo No.GM(Per)/DE(DC)/ PO-

NC/347/2000-10 dt.21.06.2003, as arbitrary, illegal, unconstitutional

and opposed to the AP TRANSCO Regulations with a consequential

direction to reinstate the 1st petitioner into service with all

consequential benefits.

2. After filing of this Writ Petition, the 1st petitioner died and

therefore his legal heirs have been brought on record.

3. Brief facts of the case are that the 1st petitioner was appointed

as Lineman in APSEB in the year 1968. Thereafter, he was promoted

as Assistant Supervisor in the year 1978 and subsequently joined as

Additional Assistant Engineer (Operations) at Nidmanoor on

01.1.1981 and thereafter at various places in Nalgonda Circle up to

December, 1996. He was posted to TLC Stores, Erragadda,

Hyderabad and worked as AAE Q&C from October, 1996 to 3rd

November, 1997 and as AAE Outdoor Stores, Erragadda, Hyderabad

from 03.11.1997 to 16.04.2001. Subsequently he was transferred and

posted as AAE Shift/132 KV Sub-Station, Kandi, Medak District and

he was relieved on 16.04.2001 and reported on 01.06.2001. The

period of handing over of charge was up to 30.05.2001. The

petitioners submit that the materials and records were completely

handed over as on 30.05.2001 and thereafter the 1st petitioner joined

the Sub-Station at Kandi in Medak District. It is submitted that while

working at Kandi, the EE/TCL/Erragadda/Hyderabad filed a

complaint against the 1st petitioner on 12.08.2001 alleging tempering

of records resulting in misappropriation of AP TRANSCO materials

in TLC Stores, Erragadda to the tune of Rs.29,33,499/-. Thereafter,

the 1st petitioner was placed under suspension with effect from

04.09.2001, i.e., the date of his arrest by the police. Disciplinary

enquiry was ordered against him and the enquiry officer framed

charges and issued charge sheet vide memo dt.28.12.2001 alleging

that the 1st petitioner indulged in misappropriation of AP TRANSCO

materials in TLC Stores, Erragadda to the tune of Rs.29,33,499/-.

Thereafter, a supplementary charge sheet dt.02.03.2002 was also

issued by the enquiry officer alleging that the 1st petitioner had

indulged in further misappropriation of AP TRANSCO materials and

the total of such sum is Rs.34,33,710/-. The 1st petitioner submitted

his replies. However, the enquiry officer held the charges to have been

proved and the disciplinary authority has issued a show-cause notice

to the 1st petitioner as to why punishment of dismissal from service

besides recovery of Rs.29,33,499/- towards misappropriation of

materials and Rs.2,02,635/- towards shortage of material should not

be passed. The 1st petitioner submitted his explanation, however the

order of dismissal was passed, against which the 1st petitioner

preferred an Appeal and the Appeal was also dismissed. The 1st

petitioner has filed this Writ Petition challenging the dismissal order

and seeking reinstatement into service with all consequential benefits.

4. The respondents have also filed their counter affidavit

countering the contentions made in the affidavit of the 1st petitioner

and submitted that the enquiry officer had conducted the enquiry in

accordance with law and accordingly held the charges as proved and

therefore, the order of dismissal from service and also recovery of the

misappropriated amount is in accordance with law and no interference

is called for in this matter.

5. Learned counsel for the petitioners, Sri S. Jagadish, submitted

that though the 1st petitioner was suspended from service with

retrospective effect from 04.09.2001 vide order dt.08.11.2001, he was

not paid any subsistence allowance. He submitted that non-payment of

subsistence allowance itself vitiates the enquiry and in support of this

contention, he placed reliance upon a judgment of the Hon'ble

Supreme Court in the case of Ghanshyam Das Shrivastava Vs. State

of Madhya Pradesh1.

AIR 1973 SC 1183

6. As regards this issue, this Court finds that in the counter

affidavit, the respondents at para 7 of the counter have stated that an

amount of Rs.1,15,024.70 ps., was calculated as subsistence

allowance and the same was reduced from the recovery of

Rs.29,33,499/- and that the same was intimated to the 1st petitioner

vide office Lr.No.D.907/2002 dt.09.11.2002. The 1st petitioner had

also filed reply affidavit, but there is no reply to this averment of the

respondents. Therefore, it is presumed that the 1st petitioner accepts

that the subsistence allowance due to him has been reduced from the

recovery amount.

7. As regards the contention of the 1st petitioner that it is the

disciplinary authority who has to frame charges and not the enquiry

officer, this Court finds that by a letter dt.27.12.2001, the Chief

Engineer has appointed the enquiry officer and has held that the

enquiry officer will frame appropriate and specific charges with

reference to the material on record and to conduct a detailed enquiry

and on 28.12.2001, the enquiry officer has issued charge sheet and

thereafter conducted the enquiry.

8. In support of the contention of the 1st petitioner that it is the

disciplinary authority who has to frame charges and not the enquiry

officer, learned counsel for the petitioners placed reliance upon a

decision of a Larger Bench of this Court in the case of K. Swarna

Kumari Vs. Government of Andhra Pradesh and others2, wherein

it was held that under 1991 CCA Rules, the disciplinary authority

himself was required to frame charges and not the enquiry officer. A

copy of the said decision is also filed before this Court.

9. Learned counsel for the respondents, Sri R. Vinod Reddy,

however submitted that the disciplinary authority had delegated the

powers of framing charges to the enquiry officer and therefore there

was no illegality about the same.

10. However, the Larger Bench of this Court in the case of K.

Swarna Kumari Vs. Government of Andhra Pradesh and others

(2 supra) considered as to whether after coming into force of 1991

Rules, i.e., Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991 under Rule 20(3) thereof, the disciplinary

authority himself is required to frame charges and under Sub-rule (4)

of the said Rule, disciplinary authority is required to deliver or cause

to be delivered to the delinquent officer a copy of articles of charges

along with a list of documents and witnesses, requiring such officer to

submit within specified time a written statement of his defence and to

state whether he desires to be heard in person and where such

procedure is not followed, it was held that the enquiry was vitiated by

departure in procedure and the doctrine of prejudice is applicable to

such cases.

2006 (2) ALD 585 (LB)

11. Learned counsel for the respondents has not been able to bring

out any decision to the contrary.

12. In the case of K. Swarna Kumari Vs. Government of Andhra

Pradesh and others (2 supra), the enquiry officer was directed to

frame charges and the enquiry officer had conducted the enquiry. The

Larger Bench in paras 18 and 19 has held as under:

"18. In V. Venkata Bharani (supra) the Full Bench of this Court on a perusal of 1963 Rules and 1991 Rules noticed one major difference in procedure for imposing penalties. In terms of 1963 Rules, the Enquiry Officer could frame charges, whereas in terms of the 1991 Rules, the disciplinary authority itself is required to do the same.

19. Rule 20(3) of the 1991 Rules makes it clear that the disciplinary authority or the cadre controlling authority who is not designated as disciplinary authority and who is subordinate to the appointing authority shall draw up the charge-sheet and the said charge-sheet will have to be delivered to the Government Servant along with a copy of the articles of charge, statement of imputation of his conduct or misbehaviour and a list of documents and witnesses by which each charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. After the explanation is submitted by the delinquent, the disciplinary authority will consider the explanation to submit and if it is found that an enquiry is needed, will appoint an Enquiry Officer for the enquiry into the charges. The formulation of rules of procedure for taking disciplinary action, such as the 1991 Rules, has served to provide a code of procedure, founded on the principles of natural justice, and approximated to them as far as possible, instead of leaving to the Enquiry Officer in each case, to devise his own procedure, in accordance with what he conceives to be reasonable or just. It

seems reasonable to construe sub-rules (2) to (5) of Rule 20 of the 1991 Rules, as implying that it is the same disciplinary authority that can initiate and pursue the steps enjoined by it. Under it, the written statement of defence by the Civil Servant, in answer to the charges against him which have been communicated to him, has to be put in before the disciplinary authority, which may then order an enquiry by itself or appointing an Enquiry Officer."

13. Thus, it is clear that after the framing of Rules of 1991, the

earlier procedure of appointing the enquiry officer who would then

frame the charges and make enquiry, has been dispensed with and the

disciplinary authority himself has to frame the charges and after

considering the explanation of the delinquent and if it is not satisfied

with the said explanation, can he refer the matter for enquiry. In the

case on hand, since the respondents have not followed such procedure,

there is prejudice caused to the petitioners and therefore, the enquiry

itself has to be set aside. Consequently, the impugned order is set

aside and the 1st petitioner is deemed to be in service and is entitled to

all the attendant benefits.

14. The Writ Petition is accordingly allowed. No order as to costs.