The Chairman/Person Incharge vs K.Madhusudan
2022 Latest Caselaw 6563 Tel

                   THE HONOURABLE SRI JUSTICE
                       ASHUTOSH MOHUNTA
                              and
                   THE HONOURABLE SRI JUSTICE
                      A.RAJASHEKER REDDY

                     WRIT APPEAL No. 930 of 2008

Judgment: (Per Hon'ble Sri Justice A.RAJASHEKER REDDY)


         This Writ Appeal is filed against the order dated
05-08-2008 in W.P.No.7682 of 2008, wherein the learned single Judge

set aside the order of removal passed against the 1st respondent.


     Brief facts, which are necessary for disposal of the appeal, are as

under:

           The 1st respondent herein/writ petitioner was working as

Marketing Officer in the A.P.State Handloom Weavers Co-operative
Society Limited, the appellants herein. He was issued charge memo

dated 18-03-2000 with the following charges:
   (1)         "That he passed certain irregular expenditure vouchers of
            various Units of Secunderabad Division, to the extent of
            Rs.2,30,963.45, while he was working at D.M.O.,
            Secunderabad by allowing them during the year 1995-96 and
            thereby committed misappropriation of funds of the Apex
            Society.
   (2)        That he while working as D.M.O., Secunderabad incurred
            excess amount of expenditure, over and above the budget
            provision fixed and communicated by Central Officer for the
            years, 1995-96.
   (3)        That he while working as D.M.O., Secunderabad, allowed
            Sri B.C.V.Subba Reddy of Proddutur, Kadapa District, the
            bidder to lift the (3) items of reduction in stocks from Karwan
            Godown by accepting Rs.60,024/- only as against the bid
            amount of Rs.5,00,043/- for the entire reduction stocks and
            thereby violated the norms fixed in this regard."
 He submitted an explanation on 06-10-2000. A show cause notice

was issued on 12-02-2002 proposing punishment of removal from
service. He also requested for copy of inquiry report dated 31-12-2001

be furnished to him. Through memo dated 17-04-2003, the appellants

forwarded a copy of the so-called report of the enquiry officer. The 1st

respondent/writ petitioner made a representation dated 05-04-2003

stating that no inquiry as contemplated under Bye-law 48 was

conducted and that the report cannot constitute any basis for the

disciplinary action. The 1st respondent/writ petitioner's representation
was considered and the appellants appointed an inquiry officer. The

inquiry officer submitted a report dated 22-09-2004 holding that the

charge Nos.1 and 3 were proved against the 1st respondent, whereas

charge No.2 is not proved. Accepting the report of the inquiry officer,

the 3rd respondent herein issued a show cause notice dated 20-01-

2005 proposing the punishment of reduction in rank. It was mentioned
that in supersession of the earlier show cause notice dated 12-02-

2002, a show cause notice dated 20-01-2005 is issued.          The 1st

respondent submitted an explanation pleading that no punishment can

be imposed against him. However, another show cause notice dated

31-10-2006 was issued to the 1st respondent/writ petitioner without

indicating any punishment.       The 1st respondent/writ petitioner

submitted an explanation on 08-03-2007 raising an objection to the

issuance of the show cause notice in this manner. Then the 2nd

appellant passed impugned order removing the 1st respondent/writ

petitioner from service, which was challenged in the writ petition. The

learned single Judge by holding that the appellants have not followed

the proper procedure in issuing show cause notices and that different

show cause notices were issued on different times without any
 application of mind and allowed the writ petition by setting aside the

impugned order of removal against the 1st respondent. Challenging

the order of the learned single Judge, the present writ appeal has been

preferred by the appellants.


    Heard both sides.


     Learned counsel for the appellants contended that proper enquiry

was conducted, a show cause notice was issued and accordingly

punishment was imposed, as such the learned single Judge should
not have interfered with the order of removal passed by the appellants.

He also contended that when once the prescribed procedure is

followed in imposing punishment, the question of interference with the

punishment does not arise.


     On the other hand, the learned counsel for the 1st respondent/writ

petitioner has contended that altogether four show cause notices were
issued indicating different punishments, which goes to show that the

appellants are not applying their minds to the facts of the case, as such

the impugned order passed is without any application of mind and the

learned single Judge has rightly set aside the impugned order and

allowed the writ petition.


      In the present case, it is to be seen that from the beginning, the

appellants are issuing show cause notice after show cause notice.

First they have issued a show cause notice proposing punishment of

dismissal from service basing on a report. On the representation,
again inquiry was conducted. One more show cause notice dated 20-

01-2005 was issued proposing punishment of reduction in rank.

Another show cause notice dated 31-10-2006 was issued to the 1st
 respondent herein without indicating any punishment. After the 1st

respondent/writ petitioner submitted an explanation dated 08-03-2007,
the appellants passed the impugned order of removal. In the show

cause notice dated 23-02-2007 issued by the Managing Director, he

observed that the explanation submitted by the 1st respondent to the

show cause notice dated 31-10-2006 is not convincing and therefore

he has decided to require the 1st respondent to remit a sum of
Rs.2,72,504/- being the cost of unaccounted poly bags and excess of
expenditure incurred by him.


       In the present case, it is to be seen that serious charges of

misappropriation are alleged against the 1st respondent and charge

No.1 is very serious charge that the 1st respondent passed certain

irregular expenditure to the extent of Rs.2,30,963.45, while he was
working as Divisional Marketing Officer, Secunderabad by allowing
them during the year 1995-96 and thereby committed misappropriation

of funds of the Apex Society and also charge No.3 is that while he was
working as Divisional Marketing Officer, Secunderabad, allowed Sri

B.C.V.Subba Reddy of Proddutur, Kadapa District, the bidder to lift the
(3) items of reduction stocks from Karwan Godown by accepting

Rs.60,024/- only as against the bid amount of Rs.5,00,043/- for the
entire reduction stocks and thereby violated the norms fixed in this
regard. These two charges are held to be proved by the Enquiry

Officer giving opportunity to the 1st respondent.      These serious

charges are held proved, the appellants went on issuing show cause

notice after show cause notice, but that does not mean that the 1st

respondent can be let off only on the ground that the appellants went
on issuing show cause notice after show cause notice.         The fact
 remains that serious charges are leveled and proved against the 1st
respondent and as such there is no bar in imposing punishment just

because the appellants under misconception issued more than one
show cause notice. Under law, the disciplinary proceedings cannot

get vitiated because the appellants' misconception, issued second
show cause notice.


       In the present case, it is not the case that the appellants

imposed any other punishment and modified the punishment by
issuing subsequent show cause notice. The Supreme Court time and
again held that no leniency or sympathy need be shown in the case of

misappropriation. In the present case, since the charges are proved,
nothing was shown to affect the conducting of enquiry by the Enquiry

Officer or imposition of punishment. By impugned order, not only
punishment of removal from service is imposed but also a direction to

remit the amount was issued. It is true that the appellants went on
issuing show cause notices as observed by the learned single Judge
and that will not vitiate the punishment imposed by the appellants on

the 1st respondent basing on the findings of the Enquiry Officer after

conducting a detailed enquiry.      Once the defect was pointed out,
Enquiry Officer was appointed and enquiry was conducted, there

cannot be any further grievance about the same. No error was pointed
to us nor learned single Judge held so in awarding punishment, as
such, setting aside the same is not in consonance with law.


       In view of the above discussion, we are of the view that the

appellants have conducted enquiry and accordingly imposed
punishment, which cannot be faulted and therefore we differ with the

view taken by the learned single Judge and accordingly the order of
the learned single Judge is liable to be set aside.
         Accordingly, the writ appeal is allowed by setting aside the order

of learned single Judge dated 05.08.2008 in W.P.No.7682 of 2008.
There shall be no order as to costs in this writ appeal.


         As a sequel, miscellaneous petitions, if any pending in this

appeal, shall stand disposed of.


                                     _________________
                                                   ASHUTOSH MOHUNTA,J.

____________________ A.RAJASHEKER REDDY,J.

24-07-2013

siva

THE HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA and THE HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY WRIT APPEAL No. 930 of 2008

24-07-2013

siva