The Chairman, A.P. Nutrition ... vs Smt.S.Lalitha
2022 Latest Caselaw 1051 Tel

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   THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA

                                    AND

      THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                      WRIT APPEAL No.1222 of 2009

JUDGMENT: (Per Hon'ble Sri Justice Abhinand Kumar Shavili)


01.          This Writ Appeal is filed aggrieved by the order

dated 30.07.2009 passed in W.P.No.3594 of 1999 by the

learned Single Judge.

02.          Heard Sri G.Ramachandra Rao, learned counsel

appearing for the appellants and Sri M.Srikanth, learned

counsel appearing for the 1st respondent.

03. It has been contended by the appellants that the

1st respondent was appointed as an Accounts Officer with

the appellants in the year 1985 and the 1st respondent was

sent to deputation to A.P.State Vikalangula Corporation in

January, 1997 and the 1st respondent had requested the

appellants to retain her with the appellants instead of sending

her on deputation. As the 1st respondent failed to obey the

orders of the appellants, the appellants had issued a charge

memo to the 1st respondent on 18.02.1997 framing five

charges against the 1st respondent in respect of irregularities

said to have been committed by the 1st respondent. The 1st

respondent had submitted an explanation denying the

charges and the explanation submitted by the 1st respondent

was not satisfactory and the appellants had decided to

conduct a detailed enquiry by appointing the 2nd respondent

as an Enquiry Officer. The 1st respondent has not appeared

before the Enquiry Officer and only submitted written

arguments before the Enquiry Officer and the Enquiry

Officer has submitted an enquiry report on 28.07.1997

holding that charge Nos.2 and 3 are proved and Charge

Nos.1 and 5 are partly proved. Basing upon the Enquiry

Officer's report, the appellants had passed the order of

removal vide proceedings dated 20.04.1998. Aggrieved by

the same, the 1st respondent has preferred an appeal before

the appellate authority and the appellate authority had

dismissed the appeal preferred by the 1st respondent on

05.10.1998. Thereafter, the 1st respondent had filed

W.P.No.3594 of 1999 before this Court and this Court had

allowed the writ petition without appreciating any of the

contentions raised by the appellants.

04. Therefore, learned counsel for the appellants had

contended that appropriate orders be passed in the Writ

Appeal by setting aside the orders passed by the learned

Single Judge in W.P.No.3594 of 1999, dated 30.07.1999.

05. Learned counsel appearing for the 1st respondent

had contended that the learned Single Judge had considered

the entire case of the 1st respondent and allowed the Writ

Petition with the following observations :-

"As I propose to deal with matters other than the phraseology and language used in the charge memo, I do not propose to give a finding in the present case as to whether the use of the words 'found guilty of misconduct' is by itself indicative of prejudging the issue.

In the present case, I do not find an acceptable and reasonable explanation forthcoming from the Management to explain the delay in the initiation of the disciplinary proceedings. The so- called anonymous complaints relied upon for the first time before this Court, to justify such belated initiation were neither brought on record during the disciplinary proceedings nor were they ever adverted to. This was notwithstanding the fact that the petitioner raised the issue of delay at the very threshold when she submitted her reply dated 12.04.1997, wherein she stated "it is not clear what made the present competent authority to issue charge sheet now after the lapse of 10 years".

As submitted by the learned counsel for the petitioner, being a Company, the financial records and accounts of the M/s. A.P. Foods would have been submitted for audit in accordance with the legal requirement obtaining under the Companies Act, 1956. It is therefore difficult to believe that the financial irregularities allegedly committed by the petitioner would have remained undetected during such inspection. Further, even if it were to be accepted that the Management initiated the belated disciplinary proceedings on the basis of the alleged anonymous complaints, it is rather difficult to believe that as many as five separate irregularities involving the petitioner would have come to light during the verification undertaken by the

Management. Relevant to note, the anonymous complaints are said to have referred to the alleged irregularities committed by the petitioner only in the purchase of Jaggery. This concerted move on the part of the Management to build up as many as five separate charges against the petitioner after a lapse of nearly one decade lends itself to the inference that the said action was not bona fide.

It is also relevant to note that the belated disciplinary proceedings were initiated shortly after the incident involving the petitioner's protest against her transfer from M/s.A.P. Foods. The proximity of these two events lends support to the contention of the learned counsel for the petitioner that she was targeted for the same. I am, therefore, of the opinion that the Management failed to explain the delay in the initiation of the disciplinary proceedings. Further, even if it is accepted that the petitioner must demonstrate that prejudice was caused to her by the delay, it is my considered opinion that she has done so adequately. The Management's own witnesses deposed that they could not recall the full facts and surprisingly, to the extent that they did, the Enquiry Officer brushed aside the same when it did not suit his purpose, saying that what they said was not supported by record. The petitioner herself stated her incapacity to produce witnesses in support of her defence owing to the long lapse of time and in

fact, failed to adduce any evidence in her defence. The material documents requested by her to prove her case such as the delegation of powers by the Managing Director to the Deputy Managers, the inward register maintained by the Managing Director's Peshi, the legal opinion taken by the HRD Section in respect of the incident involved in Charge No.5, were denied to her. Therefore, the inevitable conclusion that emerges is that the petitioner was severely prejudiced by the delay and denial of records in presenting her defence."

06. Learned counsel appearing for the 1st respondent

had further contended that the learned Single Judge had

come to a conclusion that the disciplinary authority initiated

disciplinary action against the 1st respondent belatedly and

the learned Single Judge held that the Enquiry Officer has

not conducted regular enquiry and only relied upon the

written arguments submitted by the 1st respondent and even

the written arguments were not dealt properly by the

Enquiry Officer and the learned Single Judge had rightly

allowed the writ petition in favour of the 1st respondent and

in pursuance of the orders passed by the learned Single

Judge, the 1st respondent was also reinstated into service.

07. Learned counsel appearing for the appellants had

further contended that no doubt the 1st respondent was

reinstated into service in pursuance of the order passed by

this Court, but the learned Single Judge ought not to have

granted back wages to the 1st respondent. The learned Single

Judge has set aside the order of removal with all

consequential benefits, which includes back wages.

Admittedly the 1st respondent has not worked from

20.04.1998 till allowing the writ petition. Therefore, the

orders passed by the learned Single Judge be modified atleast

by reducing the back wages granted to the 1st respondent.

08. Having considered the rival submissions made by

the learned counsel on either side, this Court is of the

considered view that the learned Single Judge has rightly

allowed the writ petition in favour of the 1st respondent,

wherein the learned Single Judge has given cogent reasons

and gave a specific finding that the disciplinary proceedings

were initiated against the 1st respondent belatedly and it has

caused much prejudice to the 1st respondent. Learned Single

Judge also gave a finding that the Enquiry Officer has not

properly conducted enquiry. Therefore, this Court is not

inclined to interfere with the orders passed by the learned

Single Judge in respect of setting aside the removal order of

the 1st respondent. However, taking into consideration the

totality of the circumstances, the ends of justice would be

met if 50% of the back wages are paid to the 1st respondent

instead of full consequential benefits, as admittedly, the 1st

respondent has not worked from 20.04.1998 till 2009.

09. Therefore, the 1st respondent is entitled for 50%

of the back wages instead of full consequential benefits, as

ordered by the learned Single Judge.

10. With the above observations, the Writ Appeal is

disposed of. No costs.

Miscellaneous petitions, if any, pending shall stand

closed.

____________________________ SATISH CHANDRA SHARMA, CJ

_________________________________ ABHINAND KUMAR SHAVILI, J Date: 07.03.2022 Prv