Dr. Md. Yakubpasha vs The Director Of Public Health And Family ...
2023 Latest Caselaw 4363 Tel

Telangana High Court

Dr. Md. Yakubpasha vs The Director Of Public Health And Family ... on 21 December, 2023

     HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   WRIT PETITION NO.29719 OF 2017
ORDER:

This writ petition has been filed praying to grant the

following relief:

" to issue a Writ order or direction more particularly one in the nature of Writ of CERTIORARI and called for the records relating to the present impugned charge memo Rc.No.035742/VC.III.B/08-7, dated 06.12.2008 of the 1st respondent and set aside or quash the same on the ground of inordinate delay and latches in initiation as well as in continuation of disciplinary proceedings without any fault from the petitioner side in view of various judicial pronouncements in the subject matter, and further holding the entire action of the 1st respondent in spite of Cooperation from the petitioner not concluding the disciplinary proceedings initiated vide charge Memo dated 06.12.2008, even though enquiry was concluded during May, 2013 itself, as highly illegal, arbitrary, unjust, colorable exercise of power, vindictive attitude and contrary to instructions issued by the Government in the matter of concluding the departmental proceedings and consequently, to direct the respondents to forthwith consider the case of the petitioner for promotion to the post of Deputy Civil Surgeon in the existing vacancies while considering the cases of his Juniors without reference to the pendency of the disciplinary proceedings initiated vide charge memo Rc.No.035742/VC.III.B/08-7, dated 06.12.2008 of the 1st respondent."

2. The brief facts leading to filing of the present writ petition

are as under:

LNA,J

2.1. Petitioner was initially appointed as Civil Assistant Surgeon

by way of recruitment w.e.f. 25.06.1988 and had passed all the

necessary departmental tests within probation period and his

services were regularized vide proceedings dated 16.10.2000 and

his probation was declared satisfactorily in the above said cadre.

Since his appointment, he is discharging his duties sincerely

without any complaints, except the present alleged allegations

mentioned in the charge memo dated 06.12.2008 of the 1st

respondent for the issue related to 2002-2007.

2.2. While petitioner was working as Medical Officer, PHC,

Geesugonda, Warangal district, the 1st respondent initiated

disciplinary proceedings vide charge memo dated 06.12.2008

under Rule 20 of APCS (CCA) Rules, 1991 (for short, 'the Rules,

1991') for the issue relating to 2002-2007 and the article of charge

was framed that Dr. Yakub Pasha, Medical Officer, PHC,

Geesugonda, Warangal district, has not remitted the balance

amount of Rs.92,570/- for the year 2002 to 2007 pertaining to the

incentive amount towards family planning operations and that he

failed to maintain absolute integrity, discipline and devotion to

duty and exhibited behaviour unbecoming of a Government

servant and violated Rule 3 of APCS (Conduct) Rules, 1964 and

called explanation from the petitioner.

LNA,J

2.3. Petitioner submitted detailed explanation on 01.02.2009

denying the alleged charge in toto and furnished the entire data in

the manner of statement of budget release, expenditure, including

returned cash to concerned STO as well as DM&HO, Warangal.

2.4. After lapse of more than four years period from the date of

reply to charge memo, the 1st respondent appointed one Sri

M.Sanjeeva Rao, Additional Director (Admn.I), O/o DPH & FW,

Hyderabad as an enquiry officer to conduct a common enquiry

against the petitioner including other staff by stating that since

explanations submitted by the individuals are not convincing and

no presiding officer was appointed. The enquiry officer conducted

detailed enquiry during May, 2013 itself, and there is no further

progress in the matter.

2.5. Further, the Government issued orders in G.O.Ms.No.679,

GA (Ser.C) Department dated 01.11.2008 directing the authorities

to complete the departmental enquiries within three months in

small cases and within six months in respect of complicated cases.

In the case on hand, the alleged charge related to for the year

2002-2007, whereas disciplinary proceedings initiated vide charge

memo dated 06.12.2008 calling explanation from the petitioner.

The petitioner submitted detailed explanation as on 01.02.2009

denying the alleged charge in toto. However, not convincing the

same, after lapse of more than four years, an enquiry was LNA,J

appointed and even though, enquiry officer concluded the enquiry

during May, 2013 itself, no final orders are passed in the matter.

2.6. The very charge memo itself is liable to be set aside on the

ground of inordinate delay in initiation of the disciplinary

proceedings and continuation of proceedings in view of law laid

down by the Hon'ble Apex Court from time to time. Due to

abnormal delay in continuing proceedings, petitioner already

suffered a lot of mental agony and reputation in the public without

there being any fault from his side.

2.7. During pendency of the disciplinary proceedings, numbers

of his juniors were promoted to the Post of Deputy Civil Surgeons

from the panel year 2013 onwards. One Dr. D.Sriram, Medical

Officer, Kambalapally against whom a similar charge memo with

same proceedings and with same date was issued, his case was

considered for promotion to the post of Deputy Civil Surgeon

during the panel year 2013. In view of the angle the entire action

of the 1st respondent while considering the above named person

against whom same charge memo was issued and not considering

the case of petitioner for promotion is nothing but illegal, arbitrary

and violative of principles of natural justice.

2.8. While so, 1st respondent vide proceedings dated 04.05.2017

called for confidential reports including service particulars of Civil LNA,J

Assistant Surgeon for filling up of existing vacancies in the cadre of

Deputy Civil Surgeon by way of promotion. In this regard, though

the petitioner within zone of consideration and fully eligible and

qualified for promotion, but under ignorance of law, his case was

not considered for promotion on the sole ground that disciplinary

proceedings initiated against him is pending. Hence, the present

writ petition.

3. Despite granting number of adjournments, the respondents

did not choose to file counter. However, the learned Special

Government Pleader placed on record the written instructions

given by the 1st respondent. As per the written instructions, the

Vigilance & Enforcement had taken enquiry with regard to

misappropriation of family planning funds for the years 2002 to

2007, misuse of TA bills, NMBS funds and wrong payments etc.,

at erstwhile Warangal district and submitted report. The

Government vide Memo dated 18.10.2008, initiated action against

the officials i.e., medical officers of 17 institutions, which include

PHC, Geesugonda. The Commissioner of Health & Family Welfare,

Hyderabad has constituted the Special Evaluation Team (SET) to

evaluate on the allegations of corruption of funds in Family

Planning Operations for the years 2002 to 2007 and the SET has

submitted report to the Commissioner of Health & Family Welfare,

who in turn forwarded the report to the 1st respondent, who is LNA,J

competent authority to take further necessary action a per CCA

Rules.

3.1. Pursuant to the orders of the Government, the disciplinary

action was initiated against 21 medial officers including the

petitioner herein and one senior assistant duly framing the charges

under Rule 20 of the Rules, 1991. The Vigilance & Enforcement

suggested for recovery of an amount of Rs.92,570/- and to launch

the criminal case against the petitioner duly initiating

departmental action. Accordingly, charges were framed against the

petitioner by the 1st respondent vide Memo dated 06.12.2008 and

also the District Medical & Health Officer, Warangal, has been

requested to recover the amount and to book a criminal case

against the petitioner. The petitioner had submitted explanation

and on submission of explanation, the Regional Director of Medical

& Health Officer, Warangal was appointed as Inquiry Officer, who

expressed his inability to conduct inquiry.

3.2. Later, the Additional Director (Planning) O/o. Director of

Public Health & Family Welfare, Hyderabad was appointed as

Inquiry Officer, who also expressed his inability stating that strike

of employees during the period of sakala janula samme and

requested to appoint another officer. Therefore, Additional Director

(Lep.) O/o. DPH&FW, Hyderabad has been nominated as Inquiry

Officer, however, he too refused to conduct inquiry. Thereafter the LNA,J

Joint Director (NPCB), O/o. DPH&FW, Hyderabad was appointed,

who also expressed unwillingness to conduct enquiry. Lastly, the

Addl.Director (Admn.) was appointed as Inquiry Officer to conduct

inquiry and he conducted enquiry and submitted his report, which

was forwarded to the Government.

3.3. The Government vide memo dated 18.01.2016 informed to

furnish the enquiry report individual wise against whom charges

were framed in accordance with Rule 20 of the Rules, 1991. The 1st

respondent on due consideration of the enquiry report came to

conclusion that enquiry officer has not done proper inquiry against

the medical officers and submitted his findings as 'charges proved'

and therefore, the 1st respondent has reappointed the Joint

Director (Epid.) O/o Director of Public Health & Family Welfare,

Hyderabad as Inquiry Officer and the Chief Accounts Officer, O/o.

DPH&FW, Hyderabad has been appointed as Presiding Officer vide

order dated 20.01.2019. However, the Inquiry Officer vide letter

dated 24.05.2022 expressed his inability to conduct inquiry as he

was busy with Covid-19 and requested for exemption from the

duties of Inquiry Officer. He further stated that charges have been

framed against the petitioner and disciplinary proceedings will be

concluded soon after the completion of departmental proceedings

shortly and the charges framed against the charged officers

including the petitioner is still under inquiry.

LNA,J

3.4. It is further contended that sum of Rs.92,570/- has to be

recovered from the charged officer as per the Vigilance &

Enforcement report dated 18.10.2008 and the said amount is not

yet remitted and it is finally contended that Government

considered the petitioner for promotion to the post of Deputy Civil

Surgeon and accordingly, promotion orders were issued vide

proceedings Rc.No.10099/E1-A/2017, dated 30.07.2018 and

posted as Deputy District Medical and Health Officer,

Hasnaparthy, Warangal district.

4. Heard learned counsel Sri S.Satyanarayana for the

petitioner and the learned Asst.Government Pleader for Services-II

for respondents.

Consideration:

5. Learned counsel for petitioner submitted that petitioner is

being harassed for not granting promotion and though he is

eligible and was due to promotion and many of his juniors were

already promoted. Only basing on the alleged charge memo dated

06.12.2008, the respondents deliberately not considering the

explanation submitted by the petitioner that he conducted family

planning operations from 2003 to2007 as alleged in the article of

charge, but there was no shortage of funds when AC bills were

adjusted through the DC bills and even it is on record that the

A.G., Audit Party, which is very competent and admitted authority, LNA,J

perused all the A.C. and D.C. bills accurately. During his tenure,

all the amounts, which he drew from STO, were adjusted with

relevant acquaintance rolls of the beneficiaries and adjusted

without any discrepancies in the amounts and bills have audited

without any remarks. The accurate number of family planning

operations and the amounts drawn, payment towards incentives to

beneficiaries and remitted back either to the Treasury or DM&HO,

Warangal, which lend support to liquidate him from the allegations

of misappropriation. Further, the cash book also perused, checked

with cash balance and attested the signatures of his superior

officers at many intervals. Thus, he is not liable for any

misappropriation of government funds.

6. Learned counsel for petitioner referred to G.O.Ms.No.679 GA

(Services.C) Department dated 01.11.2008, as per which, the

authorities were directed to complete the departmental enquiries

within three months in simple cases and within six months in

respect of complicated cases and that alleged charge related to for

the years 2002-2007 and charge memo was issued on 06.12.2008

and till date the enquiry is not yet concluded and it is clear

violation of G.O.Ms.No.679 dated 01.11.2008. He further

submitted that petitioner is being penalized for no fault of him

without considering the material placed before the respondents.

LNA,J

7. Learned counsel for petitioner relied upon the following

decisions in support of his contention:

i) State of A.P., vs. N.Radhakishan 1;

ii) P.V. Mahadevan v. M.D. Tamil Nadu Housing Board Corporation 2;

iii) M.V.Bijlani v. Union of India 3;

iv) D.Srinivas v. Govt. of A.P., Transport, Roads and Buildings (Vig.I) Dept., and others 4;

v) State of Telangana and others vs. L.Galanna and another 5

vi) Order of learned single Judge of this Court in W.P.No.14566 of 2019, dated 25.04.2023 (Dr.M.Kumara Swamy vs. The State of Telangana, rep.by its Prl.Secretary, Medical and Health Department, Hyderabad).

8. Per contra, learned Asst. Government Pleader would submit

that petitioner indulged in misappropriation of family planning

funds, which is evident from the report given by the Enquiry

Officer and further submitted that the Enquiry Officer came to

conclusion that charges proved. The departmental proceedings are

not yet completed and basing on the result of departmental

proceedings, the respondents had taken further action. It is also

submitted that petitioner was considered for promotion for the post

of Deputy Civil Surgeon and was appointed as Deputy District

1998 SCC 154

2005 (6) SCC 636

2006 (5) SCC 88

2013 (4) ALT 1 (DB)

2016 (4) ALD 320 (DB) LNA,J

Medical and Health Officer, Hasnaparthy, Warangal District

vide proceedings Rc.No.10099/E1-A/2017, dated 30.07.2018.

Therefore, the grievance of the petitioner is already redressed and

finally, submitted that writ petition fails and liable to be dismissed.

9. Perusal of the record show that the Vigilance and

Enforcement Department conducted enquiry and submitted report

to the Government to take action against officers i.e., Medical

Officers of 17 institutions including PHC, Geesugonda, alleging

misappropriation of family planning funds for the year 2002 to

2007 and misuse of TA Bills, NMBS funds and wrong payments

etc.

10. Charge memo issued to the petitioner is pursued and the

disciplinary proceedings initiated against the petitioner. As per the

written instructions of the 1st respondent, the Enquiry Officer has

not done proper enquiry and has come to finding the charge

proved. It itself shows that no proper enquiry was conducted and

proceedings are being way back to 2002 to 2007 not being

concluded till date.

11. From the material placed on record, complaints and written

instructions of 1st respondent, it is clear that departmental

proceedings are being pursued against the petitioner without there

being any basis and material.

LNA,J

12. In N.Radhakishan (supra), the Hon'ble Apex Court held as

under:

"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there LNA,J

is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.

20. In the present case we find that without any reference to records merely on the report of the Director General, Anti- Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularising the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any enquiry officer even assuming that action was validly being initiated under the 1991 Rules. There is no explanation whatsoever for delay in concluding the enquiry proceedings all these years. The case depended on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. The Tribunal rightly did not quash these two latter memos."

LNA,J

13. In P.V.Mahadevan (supra), the Hon'ble Apex Court held

as under:

"11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs."

14. In M.V.Bijlani (supra), the Hon'ble Apex Court held as

under:

"16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of LNA,J

the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.

15. In State of M.P. v. Bani Singh 6, the Hon'ble Apex Court

held as under:

"4. The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-

77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage."

1990 Supp SCC 738 LNA,J

16. In D.Srinivas (supra), the Division Bench of erstwhile High

Court of A.P., held as under:

"18. Coming to the case on hand, it is to be noticed that the charge relates to the year 1998 and no steps were taken immediately on the subject-matter of the charge. Only pursuant to the complaint lodged against the Executive Engineer (Electrical) alone before the Upa-Lokayuktha, A.P., and basing on the ex parte preliminary enquiry report, proceedings were initiated which were later dropped. Thereafter, regular departmental enquiry is conducted and on one ground or the other the enquiry officers were changed, which is admitted in the counter-affidavit, stating that delay is only on account of administrative reasons. Having regard to the nature of charge and the plea of delay, we are of the considered view that there is abnormal and unexplained delay on the part of the disciplinary authority in completing the enquiry and imposing punishment. Such an action is contrary to the judgments referred above apart from the executive instructions issued by the Government itself. Even for the said reason, the impugned order is liable to be set aside. For the foregoing reasons, the writ petition is allowed and the order dated 02.12.2011 passed in O.A. No. 8278 of 2011 and, further, order dated 04.12.2012 passed in Rev. M.A. No. 3802 of 2011, by the A.P. Administrative Tribunal, Hyderabad, is set aside. Consequently, the final order imposing punishment on the petitioner vide G.O. Rt. No. 734, Transport, Roads & Buildings (Vig.I) Department dated 28.07.2011 is quashed and it is held that the petitioner is entitled to all the consequential benefits. No order as to costs."

17. In L.Galanna (supra), the Division Bench of erstwhile High

Court of A.P., held as under:

LNA,J

"4. On a careful consideration of the respective submissions of the learned counsel for the parties, we are of the opinion that in the absence of any explanation whatsoever offered by the petitioners for their failure to conclude disciplinary proceedings for a decade, the ratio laid down by the Supreme Court in the abovementioned cases was rightly applied by the Tribunal in quashing the disciplinary proceedings. "

18. From the catena of judgments referred to above, it is clear

that continuation of disciplinary proceedings for long time

without any justification or reason would result in grave

injustice, mental agony and distress to the employee and in a

given case, the disciplinary proceedings can be quashed

depending upon the facts and circumstances of the case.

19. Further, as per G.O.Ms.No.679, G.A. (Ser-C) Department,

dated 01.11.2008, the Government directed that the disciplinary

cases initiated against the Government employees shall be

completed as expeditiously as possible i.e., a normal time of 3

months and 6 months is allowed in simple and complicated cases,

respectively. In case of abnormal delay in conducting the

disciplinary proceedings, action shall be initiated against

concerned inquiring authority.

20. In the present case, disciplinary proceedings were initiated

vide charge memo dated 06.12.2008 for the alleged mis-

appropriation relating to the years 2002-2007. The petitioner LNA,J

submitted detailed explanation on 01.02.2009 and brought to the

notice of the respondents that the accurate number of family

planning operations and the amounts drawn, payment towards

incentives to beneficiaries and remitted back either to Treasury or

DM&HO, Warangal will lend support to liquidate him from the

allegation of misappropriation. He further stated that the cash

book in his PHC is being maintained as the same is being verified

and audited by him regularly without giving any scope for

misappropriation and that the cash book also perused, checked

with cash balance and attested the signatures of his superior

officers at many intervals and submitted that the allegation leveled

against him found to be vague and exaggerated and no such

government funds were misappropriated.

21. After lapse of four years from the date of charge memo,

enquiry officer was appointed, who submitted report adverse to the

petitioner, basing on which explanation was called for from the

petitioner vide letter dated 23.02.2018, to which petitioner

submitted explanation. The 1st respondent came to conclusion that

enquiry officer has not done proper inquiry against the medical

officers and submitted his findings as 'charges proved' and

therefore, the 1st respondent had appointed another officer vide

letter dated 20.01.2019. However, the enquiry officer vide letter LNA,J

dated 24.05.2022 expressed his inability to conduct inquiry and

thus, the departmental proceedings are not yet concluded.

22. In the present case, the alleged charge related to for the

years 2002-2007 and charge memo was issued on 06.12.2008 and

till date the enquiry is not yet been concluded, which is clear

violation of G.O.Ms.No.679 dated 01.11.2008. The petitioner is

being penalized for no fault of him without considering the

explanation, material placed by him before the respondents.

Conclusion:

23. In the light of above discussion, facts and legal precedents,

continuation of disciplinary proceedings/enquiry against the

petitioner since 06.12.2008 without there being any progress is

gross abuse and would lead to grave injustice, harassment, mental

agony to the petitioner and also amounts to condemnation of the

person and therefore, the proceedings against the petitioner are

liable to be set aside/quashed.

24. Accordingly, Writ Petition is allowed and respondents are

directed to accord notional seniority to the petitioner from the date

he was due and eligible, together with all the monitory benefits and

consequential promotions. There shall be no order as to costs.

Pending miscellaneous applications if any shall stand closed.

___________________________________ Date: 21.12.2023 LAXMI NARAYANA ALISHETTY, J Kkm LNA,J

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

WRIT PETITION NO.29719 OF 2017

Date: 21.12.2023 kkm