Telangana High Court

D. Vijaya Lakshmi vs The State Of Telangana Rep., By Its ... on 16 August, 2022

Bench: P.Madhavi Devi

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.5131 OF 2017
                                  AND
                WRIT PETITION NO.39353 OF 2016


                          COMMON ORDER


      Both these Writ Petitions are filed by the respective petitioners

challenging the charge memos under G.O.Rt.No.482 dt.23.09.2016

issued by the 1st respondent as arbitrary, mala fide and illegal and to

issue a Writ of Mandamus nullifying the same.

2. Brief facts leading to the filing of these Writ Petitions are that the

petitioner in W.P.No.5131 of 2017 was working as Deputy

Registrar/Audit Officer at Medchal-Malkajgiri District at the time of

filing of the Writ Petition. Earlier, she had worked as District Co-

operative Audit Officer, Ranga Reddy District and the staff working

under her has been assigned the task of undertaking the audit of

APSCRIC under the proceedings dt.16.12.2014 of the Chief Auditor.

3. The petitioner in W.P.No.39353 of 2016 had joined the Co-

operative Department as Deputy Registrar and became Additional W.P.Nos.5131/2017 & 39353/2016

Registrar in course of time. While she was working as the Additional

Registrar and the Chief Auditor in Co-operative Department, on

07.05.2014 the Managing Director, APSCRIC Limited had requested

the petitioner to appoint M/s. Hawalder and Associates, Chartered

Accountants and M/s. S.G. Dastagiri & Co., Chartered Accountants,

Hyderabad to complete the statutory audit for the years 2011-12, 2012-

13 and 2013-14 in view of the bifurcation. It is submitted by the

petitioner in W.P.No.39353 of 2016 that the said request was

impermissible under law under Section 43 read with Section 50 of the

APCS Act and therefore, she had appointed five departmental auditors

vide proceedings Rc.No.7662/2014/AA-1, dt.09.05.2014 and instructed

the auditors to complete the final audit by 15th May, 2014 and submit

the audit report to the District Co-operative Audit Officer, Hyderabad

for final closure of the accounts as per the procedure in vogue. It is

submitted that the Chief Auditor has acted as per the Circular Memo

CC&RCS Rc.No.4719/2014-AA1, dt.05.05.2014 and the provisions of

APCS Act, 1964. Since all the auditors belong to Ranga Reddy District,

the District Co-operative Audit Officer, Ranga Reddy was requested to

pursue the subject audit and ensure early completion of the audit. It is

submitted that the auditors have visited the APSCRIC office many times W.P.Nos.5131/2017 & 39353/2016

so as to complete the audit on production of the records, but the

Managing Director failed to provide the records as requested by the

auditors. It is submitted that it is mandatory to conduct the audit by

verifying measurement books, work orders, vouchers and agreements

since it is an engineering institution and the audit being delayed due to

non-production of the records, the auditors therefore requested them to

provide the records vide half margin letters dt.04.11.2014, 20.11.2014

and 17.12.2014. It is alleged that the then Managing Director Sri James

Kalwala was repatriated to his parent department vide G.O.Rt.No.197

A&C (Coop-1) and the petitioner in W.P.No.39353 of 2016 was

appointed as MD with full additional charge on 21.11.2014 vide

proceedings Rc.No.2866/2014/PE, dt.21.11.2014 and immediately

thereafter, she provided the records to the auditors and the auditors

completed the audit and submitted their report on 03.03.2015. It is

submitted that the auditors have come across several irregularities in

allocation of works and violation of rules and misuse of funds and based

on such findings of irregularities, the petitioner in W.P.No.39353 of

2016 has suspended the persons who are responsible for the

irregularities.

W.P.Nos.5131/2017 & 39353/2016

4. It is submitted that in the meantime, the DCO, Ranga Reddy

District appears to have received one audio CD, which was claimed to

have been sent to the 2nd respondent office. On the basis of the contents

of the said audio CD, the 2nd respondent initiated action against the

petitioners in both the above Writ Petitions. A preliminary enquiry was

ordered by appointing one Sri D.Rajesham under CCA Rules.

Thereafter, the proceedings have been modified by appointing one Sri B.

Janardhana Reddy, IAS as enquiry officer. It is submitted that the

petitioner in W.P.No.5131 of 2017 was issued a charge memo under

RC.No.1/2015/SG4 dt.23.06.2015 and another charge memo under

G.O.Ms.No.95, dt.09.10.2015 ordering common enquiry against both

the petitioners herein and three employees of APSCRIC, which is a

cooperative society. The petitioner in W.P.No.39353 of 2016 challenged

the said charge memo by filing O.A.No.6238 of 2015 and the said

charge memo was suspended by order dt.05.11.2015. The petitioner in

W.P.No.5131 of 2017 also challenged the said G.O.Ms.No.95,

dt.09.10.2015 in the Administrative Tribunal by filing O.A.No.6703 of

2015 on various grounds including the ground that a common enquiry

adding non-Government employee is not permissible. Thereafter, the W.P.Nos.5131/2017 & 39353/2016

Tribunal had suspended G.O.Ms.No.95 dt.09.10.2015 on 05.11.2015.

Thereafter, the Government issued another charge memo vide

G.O.Ms.No.482, dt.23.09.2016 which has been challenged by both the

petitioners in these Writ Petitions.

5. The contentions of both the above writ petitioners are that the

charge memos and charge sheets have been issued by the respondents

only on the basis of the audio CD sent by an anonymous person. It is

submitted that without verifying the authenticity and genuineness and

identity of the person who has sent such CD, the respondents could not

have initiated any action against the petitioners herein.

6. Learned Senior Counsel appearing for the writ petitioners,

Dr.P.B. Vijay Kumar, places reliance upon the Circular issued by the

Central Government issuing instructions on the action to be taken on

anonymous/pseudonymous petitions/complaints, i.e., Circular Memo

No.706/Spl.B3/99-3, G.A.(Spl.A) Dept., dt.28.10.1999 and also Circular

No.03/03/16, dt.07.03.2016 and also the judgment of the Hon'ble

Supreme Court in the case of Income Tax Appellate Tribunal through W.P.Nos.5131/2017 & 39353/2016

President Vs. V.K. Agarwal and another1 in support of his contention

that the action taken by the respondents is unsustainable.

7. Learned Government Pleader for Services-III, on the other hand,

supported the impugned action and relied upon the averments in the

counter affidavit. It is submitted that the Writ Petitions are not

maintainable as they are against the issuance of charge memos/charge

sheets and therefore, they are premature. It is submitted that without

submitting the explanations to the charge sheets/charge memos, the

petitioners have filed the present Writ petitions and therefore, they have

to be dismissed at the admission stage itself. In support of the said

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

High Court in the case of Union of India and another Vs. Vineet

Ohri2 and a decision of this Court in the case of K. Samuel John Vs.

The Commissioner of Labour, State of Telangana and another3. The

learned Government Pleader also filed additional material papers to

demonstrate that issuance of charge sheet is on the basis of the

(1999) 1 SCC 16

WP (C) No.7914 of 2009 dt.10.07.2009

W.P.No.4856 of 2017 dt.17.04.2017 W.P.Nos.5131/2017 & 39353/2016

allegations made in the CD against the writ petitioners/officers

concerned and that the charges are grave in nature.

8. Having regard to the rival contentions and the material on record,

this Court finds that the only question in this case is whether the

disciplinary proceedings can be initiated on the basis of an

anonymous/pseudonymous complaint. Allegedly in this case, the

respondents have received a CD from an anonymous sender and as per

the conversation in the CD, the writ petitioners herein are demanding

huge amounts. Admittedly, the voices in the CD do not belong to the

petitioners herein. As per the Circular dt.28.10.1999 of the Central

Vigilance Commissioner, no action should be taken on

anonymous/pseudonymous complaints. It has been directed that

normally allegations contained in an anonymous petition ought not to be

taken notice except in cases where the details given are specific and,

therefore, verifiable and the authority that receives such complaints may

make such preliminary examination as may be necessary and in the case

of pseudonymous petitions, where a specific address has been given in

the complaint, it shall be open to the authority which received the

petition to address a communication to the person purporting to be the W.P.Nos.5131/2017 & 39353/2016

sender of the petition for further information and if it transpires that

there is no person of the name at the address given, then it may be

considered that the petitioner's name is pseudonym and the petition

should be dealt with in the same manner as an anonymous petition. The

Vigilance Commissioner (CVC) has taken note of the fact that a large

number of disgruntled and disappointed persons are apt to make serious

allegations against public servants out of malice of frustration and that

they generally do not reveal their identity and prefer to file anonymous

or pseudonymous complaints even against public servants of known

integrity and good repute. The CVC after considering all the aspects on

the issue have issued a direction that no action should at all be taken on

any anonymous or pseudonymous petitions or complaints and they may

just be filed. In Circular No.03/03/2016, dt.07.03.2016, this position has

been reiterated and at para 5 thereof, it has been directed as under:

"5. Based on the opinion furnished by Ld. AG, the following clarifications are being issued:-

i. No action should be taken on anonymous / pseudonymous complaints in line with Commission's present instructions dated 25th November, 2014 and such complaints should be filed.

W.P.Nos.5131/2017 & 39353/2016

ii. However, where the action was initiated on anonymous/ pseudonymous complaints prior to the issue of CVC's circular dated 29.6.1999 and was pending as on 29.6.1999, it can be pursued further to its logical end.

iii. Where action was initiated on anonymous / pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of CVC but is pending, further action is permissible on such complaints.

iv. Material/evidence gathered during the investigation/ verification of anonymous complaints when the action was prohibited on such complaints (i.e. between 29.06.1999 & 11.10.2002), or where such enquiry was initiated without the approval of CVC, can be utilised for further initiation of disciplinary proceedings on misconducts noticed in such verification / enquiry."

9. Further, after going through the documents filed by the

respondents with regard to the action taken on receipt of the CD, it is

noticed that the respondents have not carried out any exercise to verify

the authenticity of the CD or about the identity of the sender of the CD.

In such circumstances, the directions issued by the CVC in the Circular

dt.07.03.2016 would be very much applicable. Though this Court would

not interfere at the stage of issuance of the charge memo, since it would

be a premature action, in these cases, it is seen that the charges against W.P.Nos.5131/2017 & 39353/2016

the petitioners are only on the basis of an anonymous CD. Therefore, the

issuance of charge memo itself is vitiated. Hence, this Court deems it fit

and proper to set aside the charge memos issued by the respondents

against the petitioners herein.