H.R. Zilla vs Govt.Of ...
2022 Latest Caselaw 5775 Tel

     THE HONOURABLE SMT. JUSTICE P.MADHAVI DEVI

            WRIT PETITION (TR) No. 364 OF 2017

ORDER:

This Writ Petition has been filed by the petitioner

seeking a direction to set aside the impugned order of the

respondent No.1 imposing punishment of withholding of

50% of pension permanently vide G.O.Rt.123, Transport,

Roads & Buildings (Vig.III.2) Department dated 07.02.2012,

which was communicated to the petitioner on 26.03.2012,

as illegal, arbitrary and in violation of principles of natural

justice

2. Brief facts leading to the filing of the present writ

petition are that the petitioner was initially appointed as

Assistant Motor Vehicle Inspector (AMVI) and was promoted

as Motor Vehicle Inspector (MVI) in the year 1993. The

petitioner retired from service on attaining the age of

superannuation on 30.11.2002. It is submitted that the

petitioner's performance has been appreciated by one and

all throughout his period of service. It is submitted that

while the petitioner was working at Transport Check Post,

Shapoor, Ranga Reddy District, on 28.05.2002 i.e., just five PMD,J W.P(TR).No.364 of 2017

months before petitioner's retirement, the ACB authorities

conducted a surprise check and consequently, a charge

memo was issued to the petitioner on 01.01.2003 i.e., after

his retirement alleging that the petitioner has violated the

conduct rules as he has engaged private persons to collect

bribe amounts on his behalf. Thereafter, the petitioner has

submitted his written submissions on 24.10.2003 denying

the charges leveled against him. It is submitted that without

considering any of the submissions made by the petitioner

in his explanation, the respondents have appointed an

Enquiry Officer for conducting common enquiry against the

petitioner as well as Mr.Showket Hussain (MVI),

D.Venkateswarulu (AMVI) and N.Mahinder (Transport

Constable) and the Enquiry Officer, after holding inquiry,

has held the charges as proved against the petitioner and

on the basis of such Inquiry report, the departmental

enquiry was concluded and the punishment of 50% cut in

pension permanently was imposed vide G.O.Rt.No.123,

dated 07.02.2012. Challenging the same, the petitioner has

filed O.A. before the Andhra Pradesh Administrative

Tribunal (APAT). Thereafter, after the bifurcation of the PMD,J W.P(TR).No.364 of 2017

State and due to non formation of an Administrative

Tribunal for the state of Telangana, the O.A., has been

transferred to this High Court and was re-numbered as

W.P.(TR).No.364 of 2017.

3. Learned counsel for the petitioner submits that during

the enquiry, two witnesses were produced by the ACB who

were alleged mediators and therefore, these two witnesses

are interested witnesses and therefore, credence cannot be

given to such evidence without collaboration.

4. It is submitted that the said witness also have spoken

only on recitals of the surprise check proceedings and

hence, private parties were said to have been engaged by

Mr.Suresh Kumar and V.Srinivas during the inquiry and

therefore, it was only a farce of an inquiry that was held.

5. It is submitted that without producing the relevant

witnesses and without making them available for cross

examination and without conducting the departmental

enquiry, the respondents have considered the preliminary

inquiry itself as departmental enquiry and have imposed the

punishment of withholding of 50% of the pension PMD,J W.P(TR).No.364 of 2017

permanently. It is further submitted that non-producing of

witnesses i.e., M/s.Suresh Kumar and V.Srinivas and

members whose statements were recorded during the

surprise check proceedings has clearly put the petitioner to

prejudice and is denied reasonable opportunity of defending

himself. He therefore, prayed for setting aside of the

impugned punishment.

6. It is further submitted that during the course of

surprise check from 1 p.m., to 08.30 p.m., on 28.05.2002,

there was no excess amount found with the petitioner or

with anyone else or within the premises of the check post

and that the petitioner has neither received any amount

from anyone nor engaged anyone to collect amounts. It is

submitted that the authorities have imposed the impugned

punishment clearly on the basis presumptions and

assumptions, which is not permissible under law.

7. It is submitted that the show cause notice was issued

to the petitioner enclosing the inquiry report dated

10.06.2010, to which the petitioner submitted his

explanation vide his representation dated 29.06.2010 and PMD,J W.P(TR).No.364 of 2017

its only after the lapse of nearly two years that the

respondents have issued impugned G.O.Rt.No.123, dated

07.02.2012 imposing the punishment. It is submitted that

the incident allegedly has taken place in May, 2002 and the

punishment was imposed on 07.02.2012 i.e., after 10 years

of retirement of the petitioner and after attaining the age of

superannuation on 30.11.2002 and therefore, it is

submitted that the petitioner has been made to suffer for

the past one decade without being paid the terminal

benefits under the garb of pendency of proceedings against

him.

8. It is further submitted that though the petitioner has

co-operated with inquiry proceedings, there was no

response from the respondents and by keeping the

proceedings pending for 10 long years without reasonable

cause and then imposing punishment, is unjust and

unreasonable, particularly when the other co-delinquent

employee were imposed with the punishment of stoppage of

one increment with cumulative effect only. Therefore,

according to the learned counsel for the petitioner, the

punishment imposed on the petitioner is shockingly PMD,J W.P(TR).No.364 of 2017

disproportionate and is an act of inhumanness. Therefore,

according to him such arbitrary use of power has to be set

aside under Article 226 of Constitution of India.

9. In support of his contention, the leaned counsel for

the petitioner had relied upon the judgment of the Hon'ble

Supreme Court and other High Courts in the following

cases:

(i) Takhaji Heraji Vs.Thakore Kubersing Chamansing, reported in (2001) 6 SCC 145;

(ii) A.C.Ravindran Vs. High Court of Andhra Pradesh, Hyderabad and Another, reported in 2011 (2) ALD 275(DB);

(iii) State of Uttar Pradesh Vs.Saroj Kumar Sinha, reported in (2010) 2 SCC 772;

(iv) Sher Bahadur vs. Union of India and Others, reported in (2002) 7 SCC 142.

10. On the other hand, the learned Government Pleader

relied upon the averments made in the counter affidavit

justifying the order of the punishment. Further, he placed

reliance upon the judgment of Hon'ble Supreme Court in

the case of State of Karnataka and Another Vs. PMD,J W.P(TR).No.364 of 2017

N.Gangaraj1, wherein it was held that power of Judiciary is

confined only to the decision making process and is not that

of an appellate authority. He further submitted that this

Court cannot go into the sufficiency or otherwise of the

evidence considered by the enquiry officer.

11. Having regard to the rival contentions and the

material on record, this Court finds that the judgment relied

upon by the learned Government Pleader is not relevant to

the case on hand, because in this case, the process of

decision making is under challenge and not the decision

itself.

12. It is noticed that though the charges relate to the

surprise check conducted on 28.05.2002 i.e., few months

before the retirement of the petitioner, the respondents have

concluded the inquiry in the year 2010 and imposed

punishment in the year 2012 i.e., after ten years of his

retirement. The learned counsel for the petitioner has

pointed out various lacunas in the enquiry conducted by the

respondents. The respondents have relied upon the

(2020) 3 SCC 423 PMD,J W.P(TR).No.364 of 2017

preliminary enquiry conducted by the respondents and the

statements of the witnesses who have not been produced for

examination and cross examination during the

departmental enquiry by the officer. Therefore, it is clear

that the enquiry has not been conducted in accordance with

settled principles of natural justice. It is settled law that

when any statement is being relied upon by the authorities

against delinquent employee, then the respondents are

required to provide the delinquent employee an opportunity

of cross examination of such witnesses. Therefore, the

impugned order is liable to be set aside on this ground

alone. Further, as pointed out by the learned counsel for the

petitioner, which has not been rebutted by the respondents

in the counter affidavit, the other co-delinquent employee

has been imposed lesser punishment. However, the reasons

for higher punishment in the case of the petitioner are not

forthcoming in the present writ petition.

13. In view of the same, this Court is inclined to set aside

the impugned order dated 07.02.2012 and direct that the

punishment of stopped of one increment with cumulative

effect be substituted and thereafter, the respondents are PMD,J W.P(TR).No.364 of 2017

directed to pay the pension to the petitioner from the date of

retirement to till date of this judgment in accordance with

rules.

14. Accordingly, this writ petition is allowed. There shall

be no order as to costs.

Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

____________________________ JUSTICE P.MADHAVI DEVI

Dated: 11.11.2022

bak PMD,J W.P(TR).No.364 of 2017

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P (TR).No. 364 OF 2017

Dated: 11.11.2022

bak