Telangana High Court
Mohammed Azhar Hussain vs The Superimending Engineer Rb on 13 February, 2023
Bench: N.V.Shravan Kumar
*HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR
+WRIT PETITION (TR) No.718 OF 2017
% Dated 13.02.2023
Between:
# Mohammed Azhar Hussain ...Petitioner
and
$ The Superintending Engineer (R&B)
Rural Circle, Bal,ampet Hyderabad-500018 and others.
.... Respondents
! Counsel for the petitioner : Mr. Chilpireddy Narsireddy
^ Counsel for the respondents : Govt.Pleader for Services II and III
< GIST : ---
>HEAD NOTE : ---
? Cases referred: :
1. AIR 2000 (SC) 1080
2. (2005) 5 SCC 569
3. 2002(5) SCC 520
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HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION (TR) No. 718 of 2017
ORDER:
Heard Sri Chilpireddy Narsi Reddy, learned counsel for the
petitioner, the Government Pleader for Services-III for the
respondents and perused the material available on record.
2. The present writ petition (TR) is filed to call for the
records relating to and connected with the impugned
proceedings No.E6/1324/2011/07/2013, dated 21.05.2013 of
respondent No.1 and set aside or quash the same by holding the
same as illegal, arbitrary, improper and imposing the
punishment of termination without regular enquiry is bad in law
and stigmatic in nature and contrary to the various judicial
pronouncements including violation of all principles of natural
justice and consequently direct the respondents to reinstate the
petitioner into service with all consequential benefits thereon.
3. It is the case of the petitioner that the father of the
petitioner by name late Mohd. Shukur had expired while working
as Office Subordinate in the respondents' organization on
04.05.2012 in harness. The mother of the petitioner has
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submitted an application on 28.07.2012 before respondent No.1,
wherein she requested for appointment to her son i.e., the
petitioner herein, in a suitable post on compassionate grounds
and along with the application, she enclosed the required
documents. Taking into consideration of all the aspects,
respondent No.1, being an appointing authority, issued
appointment orders vide proceedings No.E6/1324/CA/2011/
216, dated 08.10.2012, appointing the petitioner as Watchman
under social security measure on compassionate grounds. After
receiving the above orders, the mother of the petitioner and the
petitioner made representations before respondent No.1,
requesting to appoint the petitioner as Office Subordinate
instead of Watchman. After careful examination, respondent
No.1 issued modification orders vide proceedings No.E6/1324/
2011/2731, dated 20.11.2011 appointing the petitioner as Office
Subordinate instead of Watchman and posted in the office of
respondent No.2. Accordingly, the petitioner joined in the
office of respondent No.2 on 21.11.2012 and since then he is
discharging his duties as Office Subordinate without any
complaints.
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4. It is further submitted that at the time of submitting his
application for compassionate appointment, the petitioner has
enclosed the Transfer Certificate, Bonafide Certificate and SSC
failed Memo, Community, Nativity and Date of Birth Certificate
issued by the institutions concerned and in all these certificates,
the date of birth of the petitioner was entered as 24.08.1993
and after verifying the above documents only, the appointment
orders were issued to the petitioner.
5. It is further submitted that while the matter stood thus,
the above certificates were sent to the D.E.O., Hyderabad for
verification of its genuineness. Vide letter, dated 09.01.2013, it
is informed by the D.E.O., Hyderabad, that as per Admission
Register of Crown International High School, Qazipura,
Hyderabad, the date of birth of the petitioner is 24.08.1997 but
the date of birth in Bonafide Certificate is tampered as
24.08.1993 and therefore, the Bonafide Certificate and Transfer
Certificate of the petitioner are not genuine. Basing on the said
information, respondent No.1 straight away issued show cause
notice vide Memo No.Supdt./1324/2011/3657, dated
15.02.2013 to the petitioner calling for his explanation
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directing to explain for the serious lapse i.e., the date of birth
in both the Transfer Certificate and Bonafide Certificate have
been tampered within two weeks. It is further submitted that
the petitioner has submitted a detailed explanation on
25.02.2013, wherein he has categorically stated that the date of
birth entered in the transfer certificate as 24.08.1993 is
authentic and correct and further stated that as per S.S.C. fail
memo, issued by the Board of Secondary Education, A.P.,
Hyderabad, his date of birth is 24.08.1993 but not 24.08.1997
and requested the authorities if any doubt, the same may be
addressed to the authorities concerned, but without considering
his explanation and without conducting any due enquiry in the
matter, respondent No.1 in a hasty manner issued the impugned
termination order, dated 21.05.2013. Hence, the petitioner has
filed the present Writ Petition (TR).
6. By an order, dated 08.07.2013, while admitting the above
matter, the then Andhra Pradesh Administrative Tribunal has
passed the following order:-
"The applicant in this application is an Office
Subordinate. He has filed this application aggrieved
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by the orders of termination issued vide proceedings
No.E6/1324/2011/07/13, dated 21.05.2013.
2. It is the case of the applicant that he came to
be appointed as an Office Subordinate vide
Proc.No.E6/1324/2011/2731, dated 20.11.2011 in
pursuance to which he reported to duty and
discharging the duties as Office Subordinate. While
the matter stood thus, he was issued a show-cause
notice dated 15.02.2013 calling for the explanation
of the applicant with regard to the entry of date of
birth in the School Records. The applicant has
submitted his explanation on 25.02.2013. The
respondents have issued the impugned orders vide
Proc.No.E6/1324/2011/07/13, dated 21.05.2013
terminating the services of the applicant. This
action of the respondents is illegal, arbitrary, for
the reason that, the respondent authorities have
gathered incriminating evidence against the
applicant from the Education Department without
conducting a detailed enquiry as contemplated
under Rule 20 of A.P.C.S. (CC&A) Rules and have
chosen to pass the impugned termination orders.
Therefore, the impugned orders are liable to be set
aside.
3. The balance of convenience does lie in favour of
the applicant. Therefore, following interim order is
passed:-
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4. Admit. Issue notice to the respondents
returnable in four weeks.
5. Pending disposal of the O.A., there shall be
interim suspension of the impugned proceedings
No.E6/1324/2011/07/13, dated 21.05.2013 of the 1st
respondent with a direction to the respondents to
retain and continue the applicant as Office
Subordinate."
7. After passing the above interim order, the respondents
have filed vacate stay petition along with counter inter alia
stating that the petitioner was appointed as Office Subordinate
on compassionate grounds and he had joined in the office of
respondent No.2 on 21.11.2012 F.N. It is further stated that as
per the procedure, the 7th Class Bonafide Certificate and the
T.C. submitted by the petitioner have been sent to the D.E.O.,
Hyderabad, for their genuineness, who in turn has informed that
as per the Admission Register of Crown International High
School, Qazipur, Hyderabad, the date of birth of the petitioner
is 24.08.1997 and the same was tampered as 24.08.1993 in the
7th Class Bonafide certificate and the T.C. and that the
Bonafide Certificate are not genuine vide letter, dated
09.01.2013. Basing on the contents of the said letter, a memo,
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dated 15.02.2013, has been issued to the petitioner calling for
his explanation for tampering the 7th Class Bonafide Certificate,
to which the petitioner has submitted his explanation and
requested to address to the Board of Secondary Education,
Hyderabad, for confirmation. Therefore, the SSC Marks Memo
was sent to the Additional Joint Secretary, Director of
Government Examination, Hyderabad, to confirm its genuinity
and the Additional Joint Secretary, has informed that as per
their office records the entries in the SSC are not tallied with
his office and the SSC Memo submitted by the individual has not
been issued by his office. It is further stated that basing on the
information submitted by the D.E.O., and the Additional Joint
Secretary, the explanation submitted by the petitioner is not
convincing and the petitioner has tampered the date of birth in
bonafide certificate for the sake of appointment under
compassionate grounds and accordingly, the petitioner was
terminated from service. Therefore, prayed to dismiss the writ
petition.
8. The contentions of the petitioner are in three fold.
Firstly, the impugned termination order was passed without
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conducting any departmental enquiry, which is illegal and
contrary to the law laid down by the Apex Court and also
violative of principles of natural justice. Secondly, the
respondents authorities have wrongly interpreted the contents
of the letter dated 29.10.2012 of the Additional Joint Secretary
to the Director of Government Examinations, Andhra Pradesh
Hyderabad and therefore, prayed to allow the writ petition.
Thirdly, the termination order is a stigmatic in nature and the
same attracts a stigma against the applicant and by virtue of
said termination punishment definitely affects his chances of
employment anywhere. In support of his contention, he relied
on the judgments of the Apex Court in V.P.Ahuja v. State of
Punjab and others1 and State of Punjab and others v.
Sukhwinder Singh2.
9. The Government Pleader for Services-III has submitted
that since the petitioner has obtained compassionate
appointment by producing fake certificate, it is not necessary
for the respondents to conduct enquiry and therefore, prayed to
dismiss the writ petition.
AIR 2000 (SC) 1080
(2005) 5 SCC 569
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10. The point that arises for consideration is whether the
petitioner had given an opportunity of being heard before
terminating his services and in the absence of the same whether
such termination is valid?
11. Point:
Admittedly, the petitioner was appointed as Office
Subordinate on compassionate grounds as his father, who was
working as Office Subordinate in the respondents' department,
died in harness. It is also not in dispute that while submitting
the representation for compassionate appointment he has
enclosed the Transfer Certificate, Bonafide Certificate and SSC
failed memo, community, nativity and date of birth certificate
issued by the institutions concerned and after verifying the
above said certificates only, the respondent authorities have
appointed the petitioner as Office Subordinate. The said
documents were sent to the D.E.O. and the Additional Joint
Secretary to the Director of Government Examination,
Hyderabad, to verify their genuineness. The D.E.O. has
informed that as per the admission register of Crown
International High School, Qazipur, Hyderabad, the date of birth
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of the petitioner was 24.08.1997 and the same was tampered as
24.08.1993 in 7th Class Bonafide Certificate and therefore, the
T.C. and the Bonafide Certificate are not genuine.
12. As regards the contention that the impugned order
attracts stigma against the petitioner is concerned, the
allegation against the petitioner is that the Bonafide
Certificate/Transfer Certificates were tampered and SSC failed
certificate submitted by him has also not been issued by the
concerned department.
13. Admittedly, the T.C. was not issued by the Crown
International High School, Qazipur, Hyderabad and the same was
issued by the Head Mistress, Government High School,
Galbaiguda, Tadban, Hyderabad. In the Transfer Certificate
(T.C.), it is specifically mentioned that the date of birth of the
petitioner is 24.08.1993 and also mentioned the same in the
words as "Twenty Four August Nineteen Ninty Three). Further,
though there is a specific pleading in the counter that the
Additional Joint Secretary to the Director of Government
Examination, Hyderabad, has informed that as per his office
records the entries in the S.S.C. are not tallied with his office
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and the S.S.C. submitted by the petitioner has not been issued
by his office, but the record is otherwise. Therefore, it is
appropriate to refer to the contents of the letter, dated
29.10.2012, basing on which the respondents have contended
that the SSC submitted by the petitioner has not been issued by
the office of the Additional Joint Secretary to the Director of
Government Examinations, Andhra Pradesh, Hyderabad.
"... With reference to the cited, it is informed that the
proposal for verification of SSCs received vide reference
cited is returned herewith due to the below mentioned
objection.
i) Photocopy of SSCs cannot be verified. The original
Fail SSCs is/are required to be submitted for
verification of genuineness.
ii) As per the Government order a search fee
ofRs.100/- (Rupees one hundred only) is prescribed
per each SSC and it has to be remitted to the
following head of account.
iii) As per this office records the entries in the SSC are
not tallied with this office.
iv) The SSC submitted by you has not been issued by
this office. ...
A demand Draft for Rs.100/- should be obtained
from State Bank of Hyderabad or State Bank of India
in favour of "Secretary to the Commissioner for
Government Examinations, A.P., Hyderabad".
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I, therefore, request you to resubmit the proposal
after rectifying the objection."
14. It is clear from the contents of the above letter that the
proposal for verification of SSCs received was returned due to
the objection such as "photocopy of SSCs cannot be verified.
The original fail SSCs is/are required to be submitted for
verification of genuineness" and the other objections mentioned
are only proforma and they are not relevant and objection (i) is
only relevant to the case of the petitioner.
15. Further, the record also reveals that in order to comply
with the objection, respondent No.1 addressed a letter, dated
03.04.2013 to the Additional Joint Secretary, Director of
Government Examination, Andhra Pradesh, Hyderabad,
submitting the original fail SSC certificate and original demand
draft for Rs.100/- bearing No.58413 dated 03.04.2013, in
respect of the petitioner for verification of genuineness. Vide
letter, dated 25.04.2013, the Additional Joint Secretary to the
Director of Government Examinations, Andhra Pradesh,
Hyderabad, informed respondent No.1 that the SSC fail memo of
the petitioner cannot be verified as per their office rules and
the proposal was returned under objection. The record reveals
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that there is no comment offered by the Additional Joint
Secretary to the Director of Government Examinations, Andhra
Pradesh, Hyderabad, that the Secondary School Certificate is
not genuine and it was returned stating that the SSC fail memo
of the petitioner cannot be verified as per their office rules.
16. From the above, it is clear that the respondent authorities
have wrongly interpreted the contents of the letter in
Rc.No.95/D1-1/2012 dated 29.10.2012 of the Additional Joint
Secretary to the Director of Government Examinations, Andhra
Pradesh, Hyderabad, basing on which the respondents have
terminated the petitioner stating that the "SSC submitted by
you has not been issued by this office", but the contents of the
letter dated 29.10.2012 and letter dated 25.04.2013 are
otherwise, wherein the proposal for verification of the
genuineness of the SSC fail memo was returned under objection.
That apart, as per the contents of the Transfer Certificate which
was issued by Head Mistress, Government High School,
Galbaiguda, Tadban, Hyderabad and SSC Fail Memo, which was
issued by the Additional Joint Secretary, Board of Secondary
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Education, Andhra Pradesh, the date of birth of the petitioner
was 24.08.1993.
17. As regards the contention of the learned counsel for the
petitioner that the termination order itself is unconstitutional as
the same was issued without conducting any departmental
enquiry, in Phvanendra Narayan Verma v. Sanjay Gandhi
P.G.I. of Medical3 the Apex Court has categorically held as
under:-
"One of the judicially evolved tests to determine
whether in substance an order of termination is punitive
is to see whether prior to the termination there was
(a) a full scale formal enquiry. (b) into allegations
involving moral turpitude or misconduct (c) which (c)
culminated in a finding of guilt.
If all three factors are present the termination has been
held to be punitive irrespective of the form of the
termination order. Conversely if any one of the three
factors is missing, the termination has been upheld."
18. The judgments relied upon by the learned counsel for the
petitioner i.e., V.P.Ahuja v. State of Punjab and others (1
supra) and State of Punjab and others v. Sukhwinder Singh (2
supra) relate to the termination of the employee, who was
2002(5) SCC 520,
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under probation, wherein the Apex Court held that "a
probationer, like a temporary servant, is also entitled to certain
to protection and his services cannot be terminated arbitrarily,
nor can those services be terminated in a punitive manner
without complying with the principles of natural justice."
19. A perusal of the impugned order, dated 21.05.2013, would
show that respondent No.1 has relied upon the report of the
District Educational Officer, which is evident that the correct
date of birth of the petitioner was 24.08.1997 and that he has
not completed 15 years of age as on 01.07.2013 and falling
shortfall of three (03) years to the required age of 18 years as
required under Rule8 of the A.P.Last Grade Services Rules, 1992
and therefore, he is not to be fit for the appointment as Office
Subordinate or any other post in the Department under
compassionate grounds and since the appointment of petitioner
was made under emergency service rules subject to the
verification of character and antecedents, the services of the
petitioner was hereby terminated from the post of Office
Subordinate with immediate effect.
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20. In Phvanendra Narayan Verma (3 supra) the Apex Court
observed that "in order to constitute a stigmatic order
necessitating a formal inquiry, it would have to be seen whether
prior to the passing of the order, there was an inquiry into the
allegations involving moral turpitude or misconduct so that the
order of discharge was really a finding of guilt. If any of these
three factors are absent, the order would not be punitive. We
have also held that stigma in the wider sense of the word is
implicit in every order of termination during probation. It is only
when there is something more than imputing unsuitability for
the post in question, that the order may be considered to be
stigmatic."
21. In the instant case also, admittedly, the termination order
has been issued without conducting any departmental enquiry.
It is well settled law that if there has been no appropriate
departmental enquiry or no enquiry at all before the disciplinary
action is taken, it is open to the employee to ask for such
opportunity.
22. That apart by an order, dated 18.07.2017, this Court
adjourned the matter for production of original records of SSC
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of the petitioner from the Board of Secondary Education. Till
date no original Secondary School Certificate of the petitioner
has been produced before this Court. Further, while passing the
interim order, dated 08.07.2013, the Tribunal has rightly
observed that "the respondent authorities have gathered
incriminating evidence against the petitioner from the
Education Department without conducting a detailed enquiry as
contemplated under Rule 20 of A.P.C.S. (CC & A) Rules." In the
absence of original Secondary School Certificate and looking into
the pleadings, which are contradictory to the material and
correspondence on record and as stated supra no opportunity of
hearing was given to the petitioner and the services of the
petitioner was terminated without conducting full scale formal
enquiry, this Court is of the considered view that the impugned
order terminating the services of the petitioner is punitive,
violative of principles of natural justice and bad in law and as
such the impugned proceedings No.E6/ 1324/2011/07/2013,
dated 21.05.2013 issued by respondent No.1 terminating the
petitioner from service, is liable to be set aside.
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23. Accordingly, the Writ Petition is allowed by setting aside
the impugned proceedings No.E6/1324/2011/07/2013, dated
21.05.2013, issued by respondent No.1. Since the petitioner has
already been reinstated into service in terms of the interim
order, dated 08.07.2013, issued by the Tribunal, the petitioner
shall be retained in service with all consequential benefits.
There shall be no order as to costs.
Miscellaneous application, if any pending, shall stand
closed.
______________________
N.V.SHRAVAN KUMAR, J
13.02.2023
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HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION (TR) No.718 of 2017
Date: 13.02.2023
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