Telangana High Court

G.V. Narasimha Rao, vs The State Of Telangana, Rep. By Its ... on 13 September, 2022

Bench: Surepalli Nanda

       HON'BLE MRS JUSTICE SUREPALLI NANDA

           WRIT PETITION No.25655 OF 2015

ORDER:

The petitioners approached this Court seeking a writ

of Mandamus to declare the impugned proceedings of the

3rd respondent vide proceedings No. DCP/Rice/Storage

Loss/JKPT/2012-13, dated 01.07.2015 as arbitrary, illegal

and contrary to law and consequently set aside the same

while directing the respondents to continue the petitioner

in service as usual.

2. The short grievance of the petitioner is that he joined

as Technical Asst. Grade-I in the 2nd respondent

organization in the year 2011 and posted in-charge of

Buffer Godown, kept in-charge of Guinnies Godwon,

Janakamet, Nizambad by the 4th respondent. As per the

office order of the 4th respondent dated 21.03.2015 he was

shifted to Procurement Godown from the storage godown.

His duty started from 21.03.2013 and allowed to continue

till 4.6.2013. The 4th respondent issued a Memo dated

10.07.2013 to the petitioner seeking a detailed report as

there is a storage loss of 53 M.Ts in Raw Rice at Buffer

godown, Jankampet during June, 2013. He submitted a

detailed explanation on 22.07.2013. The 3rd respondent

suspended him from service vide proceedings No.

DCP/Rice/Stg.Loss/JKPT/2012-13, dated 21.09.2013

attributing responsibility on the petitioner and caused the

storage loss as 79.371 M.Ts and cost of the same is

estimated the double cost to Rs.27,14,488/-. On

18.02.2014 the 4th respondent was appointed as Enquiry

Officer, he in turn submitted report dt 10.03.2014 to the

3rd respondent. Basing on the said report of the 4th

respondent, the respondent issued the impugned

proceedings No.DCP/Rice/Storage Loss/JKPT/2012-13

dated 01.07.2015 referring to the letter of the 2nd

respondent dated 26.03.2015 fixing the petitioner liable to

pay an amount of Rs.27,14,448/- and ordered for recover

of the same at the rate of Rs.14,000/- per month up to

31.08.2031 i.e. till the date of his retirement and the

suspension period is treated as not on duty along with

stoppage of 3 increments with cumulative effect while

reinstating the petitioner into service. Hence, prayed to

allow the writ petition as prayed for.

3. Counter affidavit has been filed by the 4th respondent

stating that the petitioner was in-charge of Buffer Storage

Godown, Janakampet from 14.12.2012 to 03.07.2013.

There was a shortage of raw rice at Buffer Godwon,

abnormal storage loss of 53.128MTs. The petitioner stated

in his explanation that he made corrections in the value

registers as 534 and 532 bags for each ACK. The petitioner

himself stated that C. Mohan Ganga Ram and Venkatesh,

outsourcing employees corrected the records which clearly

establishes that the petitioner managed to tally the storage

loss 53.128 instead of 79.371 mts. The petitioner

misappropriated the legitimate revenue of the corporation

and monthly recovery @ Rs/14,000/- per month w.e.f.

July, 2015. The petitioner categorically stated that he has

no record in moistures content per centage and no

shortage has been recorded and there is no relevant for

receipt and prayed to dismiss the writ petition with costs.

4. Heard learned counsel for the petitioner and learned

counsel for the respondents.

5. Perused the record.

6. The petitioner in his affidavit at Para (iv) urged that

the Enquiry Officer, who is the 4th respondent has not at

all taken the explanation submitted by the petitioner into

consideration while submitting a report to the 3rd

respondent which was not served on the petitioner and

that in the absence of furnishing of enquiry report to the

delinquent officer, the punishment cannot be awarded and

any such punishment cannot stand to legal scrutiny. This

Court opines that the primary contention of the petitioner

regarding the failure to furnish enquiry report is against

the dictum laid down by the Constitution Bench judgment

of the Apex Court in Managing Director, ECIL V

B.Karunakar1. In the said judgment, it is observed as

follows:

"20. The findings or recommended punishment by the enquiry officer are likely to affect the mind of the disciplinary

1993(4) SCC 727

authority in his concluding the guilt or penalty to be imposed.

The delinquent is, therefore, entitled to meet the reasoning, controvert the conclusions reached by the enquiry officer or is entitled to explain the effect of the evidence recorded. Unless the copy of the report is supplied to him, he would be in dark to know the findings, the reasons in support thereof or nature of the recommendation on penalty. He would point out all the factual or legal errors committed by the enquiry officer. He may also persuade the disciplinary authority that the finding is based on no evidence or the relevant material evidence was not considered or overlooked by the enquiry officer in coming to the conclusions, with a view to persuade the disciplinary authority to disagree with the enquiry officer and to consider his innocence of the charge, or even that the guilt as to the misconduct has not been established on the evidence on records or disabuse the initial impression formed in the minds of the disciplinary authority on consideration of the enquiry report. Even if the disciplinary authority comes to the conclusion that charge or charges is/are proved, the case may not warrant imposition of any, penalty. He may plead mitigating circumstances to impose no punishment or a lesser punishment. For this purpose the delinquent needs reasonable opportunity or fair play in action. The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration. The denial of the supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Art. 226 of the Constitution or S. 19 of the Tribunal Act or other

relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to the delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is thus, a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself effectively and efficaciously. The denial thereof is offending not only Art. 311(2) but also violates Arts. 14 and 21 of the Constitution.

7. In a judgment in Jayachandran V v. State of Kerala2

a Division Bench of High Court of Kerala at Ernakulam in

its judgment, dated 16.06.2022 held as follows:

"The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statue, that right being a fundamental and essential part of the natural injustice, must be read into every regulation or rules. There is nothing in the rules aforesaid which excludes the operation of the principle of natural

2022 SCC On line Kerala 3086

justice entitling the delinquent to be served with a copy of the enquiry report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the unoccupied interstices of the statue/rules or regulations unless there is a clear mandate to the contrary."

8. Learned counsel for the respondents fairly submits to

the Court that the perusal of the original record does not

evidence the fact of furnishing of the copy of the enquiry

report to the petitioner.

9. Under these circumstances, this Court has no option

except to set aside the impugned order dated 01.07.2015 of

the 3rd respondent by allowing the present writ petition.

This Court further opines that the enquiry proceedings will

have to start afresh from the stage of drawing up of the

enquiry report and by giving a copy of the said report to the

petitioner to offer his explanation on the findings in the

enquiry report and as to why the enquiry report cannot be