R.Shankar vs The State Of Telangana Rep. By Its ...
2022 Latest Caselaw 3760 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


              WRIT PETITION (TR) NO.5912 OF 2017


                               ORDER

This Writ Petition has been filed seeking a declaration that the

proceedings bearing G.O.Ms.No.286, Agriculture & Cooperation

(Vig.1) Department, dt.01.11.2010 imposing punishment of withholding

of entire pension permanently besides recovery of amounts; and Memo

No.992/Vig.I-1/2011-1, dt.15.10.2015 rejecting the review petition filed

by the petitioner, as illegal and arbitrary and consequently to direct the

respondents to confer all the consequential benefits, such as regulating

the period of suspension as on duty and to pay the monetary benefits

consequent thereto by applying the pay scales as revised from time to

time, to grant promotion as Superintendent and Administrative Officer

on par with his junior and to release the entire pensionary benefits based

thereon with interest to the petitioner and to pass such other order or

orders as this Hon'ble Court may deem fit and proper in the

circumstances of the case.

W.P.(TR)No.5912 of 2017

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioner was initially appointed as Junior Assistant in the

Agricultural Department on 07.05.1962 and was promoted as Senior

Assistant in the year 1968. While the petitioner was working as Senior

Assistant in the office of the Joint Director of Agriculture, Nizamabad,

he was deputed to District Rural Development Agency (DRDA),

Nizamabad on 01.05.1976 and he worked there till 31.03.1982.

Thereafter, he was repatriated to the Parent Department. The petitioner

had applied for leave from 05.07.1982 to 31.12.1983 which was

sanctioned and it is submitted that during the said period, false

allegations were made against the petitioner alleging that he

misappropriated certain funds while working in DRDA. Accordingly, he

was placed under suspension vide proceedings dt.05.12.1983 and

subsequently a charge sheet was filed against the petitioner in the Court

of First Class Magistrate, Nizamabad. The petitioner was ultimately

acquitted from all the charges by the Magistrate vide judgment

dt.30.03.1994 with a finding that the petitioner was not guilty of offence

and that the prosecution had foisted a false case against the petitioner.

Thereafter, the petitioner was reinstated into service by proceedings

dt.07.07.1994, but it was stated that the reinstatement is without W.P.(TR)No.5912 of 2017

prejudice to the finalisation of the disciplinary case against him though

no disciplinary proceedings were initiated by the Department. It is

submitted that the State preferred an appeal against the judgment of the

Criminal Court in C.C.No.387 of 1988 dt.30.03.1994 in the Hon'ble

High Court of Andhra Pradesh, which was dismissed by judgment

dt.11.03.1997. It is stated that the petitioner was not paid proper

subsistence allowance during the period of suspension by applying the

revised pay scales.

3. It is stated that a final seniority list of LDCs/Typists was issued

by Memo dt.01.08.1997, wherein the name of the petitioner was shown

at Sl.No.38 and his juniors were shown at Sl.Nos.41 and 65, but they

were promoted as Administrative Officers during 1997-98 and therefore,

by virtue of the acquittal of the Criminal case, the petitioner is entitled to

all the benefits treating the entire period of suspension as on duty as per

F.R.54 and further that he is also entitled to promotion in higher cadres

on par with his juniors. Thereafter, by proceedings dt.20.06.1998, the

petitioner was promoted as Superintendent though he was entitled to be

promoted as Administrative Officer having eligibility and qualification

for such promotion since his juniors were promoted as Administrative W.P.(TR)No.5912 of 2017

Officers. The petitioner submitted a representation on 15.10.1998

requesting to promote him as Administrative Officer. Since no orders

were passed on the representation of the petitioner, the petitioner filed

O.A.No.2895 of 1999 before the A.P. Administrative Tribunal and the

OA was disposed of directing the 2nd respondent to examine the

representation of the petitioner therein as per rules and pass appropriate

orders thereon. Since the orders of the Tribunal were not implemented,

the petitioner invoked contempt proceedings before the Tribunal.

Thereafter, vide Memo No.Estt.IX(2) 213/92, dt.15.03.2000, the

representation of the petitioner was rejected.

4. Aggrieved, the petitioner filed another O.A.No.1652 and the same

was allowed by the Tribunal by order dt.14.07.2004 setting aside the

impugned order and directing the respondents to treat the suspension

period as regularised and that the petitioner should be given regular

promotion over and above his immediate juniors who were promoted,

and notional benefits should be given to the petitioner, and salary has to

be paid to him as per the revised pay scales. Aggrieved, the respondents

filed W.P.No.16927 of 2005 before the High Court of Andhra Pradesh

which was disposed of directing the respondents to complete the enquiry W.P.(TR)No.5912 of 2017

within a period of four (4) months by observing that the benefits as

directed by the Tribunal would be subject to the ultimate decision taken

in the said enquiry. Though the enquiry was directed to be concluded

within a period four months from the date of receipt of the order, i.e.,

15.06.2006, the enquiry was not completed within the said period, but

nearly after a lapse of more than 3 years, a Memo dt.18.11.2009 was

issued by the Government furnishing the enquiry report and directed the

petitioner to submit his explanation. The petitioner states that no proper

enquiry has been conducted, no witnesses were examined, but the

enquiry officer held that the petitioner has failed to maintain the records.

It is submitted that the original records were not produced to the

Department during the regular enquiry. The petitioner submitted a

detailed explanation to the enquiry report and requested for dropping of

further action, but the Government has sent a Memo dt.07.05.2010

proposing for imposition of punishment of withholding of the entire

pension permanently and recovery of the amounts. The petitioner

submitted a detailed explanation and requested for dropping further

action. However, the Government issued proceedings in

G.O.Ms.No.286, Agriculture and Cooperation (Vig.1) Department,

dt.01.11.2010 and imposed the punishment of withholding of the entire W.P.(TR)No.5912 of 2017

pension permanently besides recovery of amounts. The petitioner filed a

Review Petition on 01.04.2011, followed by subsequent representations

on various grounds. However, the 1st respondent issued the impugned

Memo No.992/Vig.I-1/2011-1, dt.15.10.2014 rejecting the review

petition. Challenging the same, the petitioner filed O.A.No.1805 of

2016. After bifurcation of the State into the State of Andhra Pradesh and

the State of Telangana, since no Administrative Tribunal has been

established for the State of Telangana, the matter has been transferred to

this Court and registered as W.P. (TR) No.5912 of 2017.

5. Learned counsel for the petitioner, Sri S. Gopal Rao, while

reiterating the submissions made in the O.A. filed before the

Administrative Tribunal, submitted that the allegations against the

petitioner are with regard to misappropriation of funds during the period

of his working with DRDA i.e., from 1976 to 1982. He submitted that

the criminal case filed against the petitioner has been decided in favour

of the petitioner and the petitioner was acquitted from all the charges

and it is only thereafter, i.e., nearly after a lapse of more than 18 years,

that the impugned orders of imposing the punishment of withholding his

entire pension permanently have been passed. It is submitted that these W.P.(TR)No.5912 of 2017

impugned orders have also been passed after the retirement of the

petitioner and therefore, the said orders are illegal. He placed reliance

upon the judgment of the Hon'ble Supreme Court in the case of State of

Punjab and others Vs. Rafiq Masih (White Washer) and others1,

wherein it has been held that recovery of sums made by the employer

mistakenly is impermissible in law from an employee who retires or is

due to retire within one year of the order of recovery. He further submits

that the alleged enquiry conducted by the enquiry officer is without any

records and therefore, the enquiry is vitiated and the consequential

orders of withholding of pension passed by the disciplinary authority

has to be set aside. He has drawn the attention of this Court to the

averments made in the counter affidavit and also the enquiry officer's

report, wherein it is clearly mentioned that the original records are not

available with the respondents. Therefore, according to him, the enquiry

conducted is a laconic enquiry and cannot be relied upon to impose any

kind of punishment on the petitioner, leave alone withhold the

pensionary benefits of the petitioner.

(2015) 4 SCC 334 W.P.(TR)No.5912 of 2017

6. Learned Government Pleader for Services, on the other hand,

submitted that the charges against the petitioner were that he has not

maintained proper records and therefore, the original records could not

have been available. She has drawn the attention of this Court to the

enquiry report, wherein all the charges against the petitioner have been

held as proved and therefore argued that the order of the disciplinary

authority withholding the entire pension of the petitioner and further

ordering recovery of a sum of Rs.16,80,308.28 ps., is justified.

7. The learned counsel for the petitioner submitted that none of the

pensionary benefits, including gratuity, has been paid to the petitioner.

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

it is seen that admittedly, original records were not available with the

enquiry officer at the time of conducting the enquiry. The enquiry report

is dated November, 2009, whereas the charges are relating to the period

of 1976-1982. In the enquiry report itself, with regard to articles of

charge No.1, there is a reference to various amounts drawn but were not

entered in cash books. There is a reference to the counterfoils being

available and it is not understandable as to how the respondents have W.P.(TR)No.5912 of 2017

arrived at a figure of Rs.16,80,308.28 ps. without any evidence with

reference to the same. Therefore, it is clear that only photo copies of

some of the records were available with the respondents, on the basis of

which the charge sheet was issued. The enquiry officer has concluded

the enquiry and submitted his report holding all the charges as proved

against the petitioner. Thus, it is clear that the original records were not

produced before the enquiry officer and this clearly vitiates the enquiry

proceedings and therefore, any finding on the basis of such vitiated

enquiry report cannot be sustained.

9. It is also noticed that the respondents have also initiated the

disciplinary proceedings against the petitioner only after the acquittal of

the petitioner from the criminal case. The impugned order also has been

passed after the retirement of the petitioner and therefore, the petitioner

could not have had any access to the documents on which the

respondents have placed reliance upon to impute the charges and also to

hold the charges as proved. In view of the same, this Court is of the

opinion that from the date of initiating the enquiry and conducting the

enquiry, the entire proceedings are vitiated and therefore they have to be

set aside. Since more than 8 years have passed after the rejection of the W.P.(TR)No.5912 of 2017

review petition and the petitioner is now aged nearly 79 years and in

view of the acquittal of the petitioner from the criminal case, this Court

does not deem it fit and proper to direct the respondents to re-initiate the

proceedings against the petitioner at this stage. Consequently, the

respondents are directed to treat the suspension period of the petitioner

as on duty for the purpose of terminal benefits only and pay all the

terminal benefits to the petitioner by applying the revised pay scales as

applicable from time to time and also pay pension to the petitioner as

per his eligibility. The payment shall be made to the petitioner within a

period of 120 days from the date of receipt of a copy of this order along

with interest at the rate of 7.5% per annum from the date of this order till

the date of payment.

10. With the above directions, the Writ Petition is allowed. No order

as to costs.

11. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 18.07.2022 Svv