B Lachu Naik vs Spl.Chief Secretary Housing And 3 ...
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       THE HONOURABLE SRI JUSTICE J.SREENIVAS RAO

                  WRIT PETITION No.740 of 2017

O R D E R:

This Writ Petition is filed seeking following relief:

"... to set aside the proceedings No.8923/Vig(1)/ NLG/2014-II dated 30.11.2016 on the file of the 2nd respondent by holding the same as unjust, unfair, unreasonable, contrary to the procedure as laid down in Rule 20 of Civil Services (Classification, Control & Appeal) Rules 1991 apart from violation of principles of natural justice and established principles of evidence and violation of Article 14 of the Constitution of India and consequently direct the respondents to reinstate the petitioner into service with all attendant and consequential benefits..."

2. Brief facts of the case:

2.1. The petitioner was originally appointed as Non-Technical Work

Inspector in the respondent Corporation. Later on, due to the work

load in Indiramma Housing Programme, his services were taken as

Mandal-in-Charge (MIC) by allotting Assistant Engineer's duties.

While discharging his services as MIC at Noothankal Mandal, the

respondent Corporation received a complaint on 04.08.2014, wherein

it is mentioned that grave irregularities were committed by the

housing officials in construction of houses under Indiramma Housing

Programme Phase-III at Noothankal village and Mandal and also

adverse news item was published on 02.12.2014, in Eenadu Daily

Newspaper. Basing on the said allegations, the District Collector,

Nalgonda, directed the Executive Engineer (H), Suryapet, to conduct

preliminary enquiry. Accordingly, the Executive Engineer (H),

Suryapet, has constituted four teams to conduct physical verification

of all houses sanctioned under Indiramma Housing Programme

Phase-III at Noothankal. The four teams have conducted house to

house verification of 660 houses. The Executive Engineer (H),

Suryapet, has submitted preliminary enquiry report stating that as

against 660 houses sanctioned in the village, financial irregularities

occurred with regard to 250 houses to an amount of Rs.1,03,19,115/-

2.2. Basing on the said enquiry report, respondent No.2 placed the

petitioner under suspension on 04.02.2015 along with other two

officials and initiated disciplinary proceedings against them invoking

the provisions of Andhra Pradesh Civil Services (Classification,

Control & Appeal) Rules 1991 (hereinafter called, 'CCA Rules' brevity).

On 04.05.2015, respondent No.2 issued articles of charges. The

petitioner submitted explanation on 06.06.2015 denying the charges

levelled against him. Not satisfying with the same, respondent No.2

appointed enquiry officer through proceedings dated 20.07.2015 to

conduct domestic enquiry. Enquiry officer after conducting enquiry

submitted enquiry report on 26.05.2016 wherein it is stated that the

charges levelled against the petitioner were proved. Basing on the

enquiry report, the disciplinary authority issued notice on 21.06.2016

directing the petitioner to submit his objections. On 06.07.2016, the

petitioner submitted his objections. The disciplinary authority passed

impugned order on 30.11.2016 dismissing the petitioner from service

apart from ordering for recovery of an amount of Rs.39 lakhs.

Questioning the above said order, the petitioner filed the present writ

petition.

3. Heard Sri M.Venkat Ram Reddy, learned counsel for the

petitioner, Sri B.Shiva Kumar, learned standing counsel appearing on

behalf of respondent Nos.2 and 3, and learned Assistant Government

Pleader for Services-I.

4. Learned counsel for the petitioner submits that respondent

No.2 initiated disciplinary proceedings and issued articles of charges

on 04.05.2015 solely basing upon the preliminary enquiry report

dated 08.10.2014 and the said enquiry was conducted behind the

back of the petitioner. Moreover, the officials, who were appointed as

enquiry officers, are below the rank of the petitioner and they are not

regular employees of the respondent Corporation. Therefore, basing

on the said enquiry report, respondent No.2 is not entitled to initiate

the disciplinary proceedings in the absence of any other material. He

further contended that the charge memo dated 04.05.2015 is not in

accordance with Rule 20 (3) and (4) of the CCA Rules on the ground

that Annexure-I of articles of charge memo has not disclosed all the

relevant facts in respect of each charge, except mentioned that the

petitioner committed irregularity and no details to whom the alleged

payments or double payments etc., are made and further no details

are mentioned about the individual houses against which the advance

payments were made and names of the beneficiaries of old houses are

also not mentioned. Similarly, in Annexure-III of articles of charge, no

names of witnesses are cited through whom the charges are proposed

to be proved. He also contended that along with articles of charge,

respondent No.2 has not furnished the enquiry report dated

08.10.2014. Hence, the entire proceedings are liable to be declared as

contrary to law and CCA Rules.

4.1. He further contended that the petitioner submitted detailed

explanation on 06.06.2015 and without considering the same,

respondent No.2 appointed enquiry officer on 20.07.2015. He also

contended that before the enquiry officer, the respondent Corporation

has not produced any evidence nor examined any witness to prove the

charges levelled against the petitioner, similarly the enquiry officer

also has not given proper opportunity to the petitioner to defend his

case including cross-examination of witnesses. On the other hand,

the enquiry officer submitted report on 26.05.2016, simply stating

that the charges levelled against the petitioner were proved.

4.2. He further contended that the disciplinary authority without

examining the enquiry report and without applying mind

independently issued memo on 21.06.2016 directing the petitioner to

submit his explanation and the same is clear violation of the CCA

Rules. The petitioner submitted his written explanation on

06.07.2016, wherein he raised several grounds including that the

enquiry officer has not given proper opportunity during enquiry and

requested respondent No.2 to drop the proceedings. Respondent No.2,

without considering the explanation submitted by the petitioner and

without giving any reasons, passed the impugned order dismissing

the petitioner from services. The impugned order passed by

respondent No.2 is clear violation of principles of natural justice and

contrary to law. He further contended that as per the Regulations,

the remedy of appeal to the Principal Secretary to the Government is

provided, but at the time of passing of the impugned order, the very

same Managing Director of respondent No.2 Corporation is

discharging as Principal Secretary to the Government. In view of the

same, filing of the appeal before respondent No.2 is futile exercise.

4.3. In support of his contention, he relied upon the judgments of

the Hon'ble Supreme Court in State of Uttar Pradesh and others v.

Saroj Kumr Sinha 1, Regional Provident Fund Commissioner v.

Hooghly Mills company Limited and others 2, Nirmala J.Jhala v.

State of Gujarat and another 3 and S. Zabeda Parveen v. A.P.

Women's Co-operative Finance Corporation, Hyderabad and

another 4.

2010(2) SCC 772

2012 (2) SCC 489

(2013) 4 SCC 301

2015 (6) ALD 675

5. Per contra, learned standing counsel contended that the

petitioner while discharging his duties as MIC committed grave

irregularities. The respondent Corporation constituted a Committee

to enquire into the same and the said Committee after conducting

detailed enquiry submitted preliminary enquiry report on 08.10.2014

pointing out the irregularities committed by the petitioner and other

officials and an amount of Rs.1,03,19,115/- was misappropriated and

after going through the preliminary enquiry report and after due

verification of the records, the respondent Corporation initiated

disciplinary proceedings against the petitioner and other employees

and issued articles of charges on 04.05.2015 by duly following the

CCA Rules and Regulations of the respondent Corporation and the

petitioner was placed under suspension. Pursuant to the same, the

petitioner submitted explanation on 06.06.2015. As the said

explanation submitted by the petitioner was not satisfactory, the

respondent Corporation ordered regular enquiry by appointing an

enquiry officer. During the course of enquiry, the enquiry officer has

given all opportunities to the petitioner to defend his case. The

enquiry officer after conducting detailed enquiry submitted enquiry

report on 26.05.2016, wherein he specifically stated that the charges

levelled against the petitioner were proved. The disciplinary authority

furnished the enquiry report and directed the petitioner to submit

objections, if any. Pursuant to the same, the petitioner submitted his

objections on 06.07.2016. The disciplinary authority after considering

the objections submitted by the petitioner and after due verification of

the entire records including enquiry report passed the impugned

proceedings on 30.11.2016 dismissing the petitioner from services

apart from ordering for recovery of an amount of Rs.39 lakhs.

5.1. Against the orders passed by respondent No.2, the statutory

remedy of appeal is provided before respondent No.1 as per the

Regulations. The petitioner without availing the said remedy before

the statutory authority i.e., Board of Directors, straight away

approached this Court and filed the writ petition alleging that the

Managing Director of respondent No.2 Corporation is continued as

Principal Secretary, though he continued for limited period, especially

other directors are also there. The contention raised by the learned

counsel for the petitioner that there would be no regular sittings and

the Board is not having sufficient mechanism in adjudicating the

appeals is not correct, since the appellate authority is adjudicating

the appeals regularly and the writ petition filed by the petitioner is not

maintainable under law and the same is liable to be dismissed.

5.2. In support of his contention, he relied upon the judgment of the

Hon'ble Supreme Court in Commissioner of Income Tax and others

v. Chhabil Dass Agarwal 5 and Pushpabai Purshottam Udeshi and

(2014) 1 SCC 603

others v. M/s.Ranjit Ginning & Pressing Co. (P) Ltd. And

another 6.

6. Having considered the rival submissions made by the respective

parties and after perusal of the material available on record, the

following points arise for consideration:

1. Whether the writ petition filed by the petitioner is maintainable under law, without availing the remedy of appeal as provided under Rules/Regulations of the respondent Corporation?

2. Whether the impugned order passed by respondent No.2 is in accordance with the law and Rules?

3. Whether the petitioner is entitled the relief as sought in the writ petition?

POINT Nos.1 AND 3:

7. It is an undisputed fact that the petitioner was initially

appointed as Non-Technical Work Inspector in the respondent

Corporation. Later on, the respondent Corporation has taken his

services as Mandal-in-Charge (MIC) by allotting Assistant Engineer's

duties. It appears from the record that on 04.08.2014 the respondent

Corporation received complaint that several grave irregularities were

committed by the Housing officials in construction of houses under

Indiramma Housing Programme Phase-III at Noothankal Village and

Mandal and also news items were published in Eenadu Daily

(1977) 2 SCC 745

Newspaper. The District Collector, Nalgonda, directed the Executive

Engineer (H), Suryapet, to conduct preliminary enquiry. Pursuant to

the same, the Executive Engineer (H), Suryapet, has constituted four

teams to conduct house to house verification. The said four teams

have conducted physical verification of 660 houses sanctioned to

Noothankal Village under Indiramma housing schemes and they have

submitted preliminary enquiry report dated 08.10.2014, wherein it is

specifically stated that as against 660 houses sanctioned in the

village, financial irregularities are occurred with respect to 250 houses

to an amount of Rs.1,03,19,115/- and further stated that the

petitioner and other officials have released an amount of

Rs.71,54,600/- for 142 houses from 06.05.2013 to 12.05.2014. It

further appears from the record that basing upon the preliminary

enquiry report, the respondent Corporation initiated disciplinary

proceedings against the petitioner and other officials placing them

under suspension on 04.02.2015 and issued articles of charges on

04.05.2015. It is very much relevant to extract the charges leveled

against the petitioner hereunder:

That Sri. B. Latchu Naik, Former MIC (H) Noothnakal Mandal. Nalgonda district committed certain grave irregularities and recommended irregular payments to the beneficiaries to a tune of Rs. 71.54,600/- under INDIRAMMA Housing Programme at Noothankal Village and Mandal, Nalgonda district and there by violated provmions of the APCS (Conduct) Rules 1964.

The details and irregularities proved as per enquiry officer's report are as follows

Sl.No. Nature of irregularities No. of Houses Amount involved Payment made without house 66 40,62,150/-

               Double Payment made                 04            2,75,600/-
               Advance stage payment made          37           11,22,300/-
               Payment made to old House           31           16,43,050/-
               Caste variations                    04              50,500/-
                                                  142           71,54,600/-

Thus Sri. B. Latchu Naik. Former MIC (H), Noothankal Mandal, Nalgonda District by his above mentioned acts has exhibited lack of devotion to duty, and he failed to maintain absolute integrity, thereby violated provisions of the APCS (Conduct) Rules 1964.

According to the statements, he has recommended irregular payments to (142) in- eligible beneficiaries to a tune of Rs. 71,54,500/- and thereby deviated the procedure by colluding with in-eligible beneficiaries and violated provisions and contravened Rule-3 of APCS (Conduct) Rules 1964(List of exhibited documents as shown in Annexure-1 and list of witnesses as shown in Annexure-2).

8. Pursuant to the same, the petitioner submitted explanation on

06.06.2015. Not satisfying with the same, the respondent

Corporation appointed an enquiry officer on 20.07.2015 to conduct

regular enquiry. The enquiry officer after conducting detailed enquiry

submitted enquiry report on 26.05.2016 wherein it is stated that the

petitioner committed serious lapses while discharging as MIC, who

grounded the houses without documentation and recorded the

measurements and recommended the payments to the beneficiaries

without proper verification of stage of construction of houses and it is

contrary to the norms and violated established conduct CCA Rules

and further stated that he has not produced any documents during

enquiry. The disciplinary authority issued memo on 21.06.2016

directing the petitioner to submit explanation to the enquiry report.

Pursuant to the same, the petitioner submitted explanation on

06.06.2015. The disciplinary authority after considering the said

explanation passed the impugned order, dated 30.11.2016,

dismissing the petitioner from service apart from ordering for recovery

of Rs.39 lakhs.

9. It is very much relevant to place on record that as per Rule 2 of

Chapter-III of the Andhra Pradesh/Telangana State Housing

Corporation Limited General Services Rules (hereinafter called, 'Rules'

brevity) of the respondent Corporation, against the order passed by

respondent No.2, the remedy of appeal is provided to the appellate

authority i.e., Board. The petitioner without availing the statutory

remedy of appeal as provided under the CCA Rules, straightaway

approached this Court and filed the present writ petition. The only

ground raised by the petitioner in the writ petition is that there is no

permanent office or secretarial assistance and there is no regular

sitting of the Board and the Chairman of the respondent Corporation

is holding the post of Principal Secretary to the Government

(Housing). Learned standing counsel submitted that the appellate

authority is having substantial machinery and adjudicating the

appeals in time bound manner. Hence, the ground raised by the

learned counsel for the petitioner is not tenable under law on the

ground that the Government issued G.O.Ms.No.5 dated 25.08.2015

constituted the Board of Directors and the said Board is having power

to entertain the appeal. Learned standing counsel during the course

of hearing submits that respondent No.2-Managing Director

continued as Principal Secretary to the Government for limited period

only and Board consist other directors also and the petitioner even

without filing appeal filed the writ petition. He further submits that

petitioner made bold allegations only for the purpose of filing writ

petition. The petitioner raised several disputed questions of fact in

the writ petition as the scope of judicial review is very limited under

Article 226 of the Constitution of India when the statutory remedy of

appeal is provided under the CCA Rules and the same can be

adjudged before the appellate authority. The petitioner can raise all

the grounds which are raised in this writ petition before the appellate

authority.

10. Admittedly, the record reveals that the petitioner and other

officials have committed grave financial irregularities under

Indiramma Housing Scheme. It is already observed supra that the

appellate authority is having all powers to re-assess the evidence and

re-examine the entire record and on being satisfied, it can substitute

its decision and the scope of appeal is unlimited.

11. In Regional Provident Fund Commissioner (2 supra), the

Hon'ble Supreme Court held that:

In the peculiar facts of the case and specially having regard to the nature of the proceedings, we do not wish to

decide the controversy raised in this case on the question of non-availability of a statutory remedy. The impugned order was passed in the year 2004 and thereafter the writ petition was entertained by the two Benches of the High Court and after that the matter is pending before us. Now we are in 2012. To dismiss the order of the two Benches of the High Court inter alia on the ground that the writ petition was entertained despite the existence of a statutory remedy and then send it back to the remedy of appeal after a period of eight years, would not, in our judgment, be a correct exercise of judicial discretion. However, we are of the opinion that normally the statutory remedy of appeal should be availed of in a situation like this.

12. However, in subsequent Judgment in Commissioner of

Income Tax (5 supra), the Hon'ble Apex Court held at para 15 and 16

that:

15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax,

imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana [(1985) 3 SCC 267] this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility.

13. It is also very much relevant to place on record the Hon'ble

Division Bench of this Court in Gaurav Lubricants (P) Ltd. v. T.N.

Mercantile Bank Ltd 7, where it is held that:

37. In Union Bank of India v. Satyawati Tandon Hon'ble Supreme Court cautioned High Courts from entertaining writ petitions when statute prescribes detailed mechanism. It has also cautioned against passing interim orders. Hon'ble Supreme Court said as under:

"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action

(2022) 6 ALT 529

taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

38. As held by Hon'ble Supreme Court in L. Chandra Kumar v. Union of India, the Debts Recovery Tribunal is a duly constituted Tribunal vesting jurisdiction on matters arising out of SARFAESI Act, 2002 and is the Court of first instance. When a person has a statutorily engrafted remedy available to redress his grievance, the writ Court does not entertain the writ petition and relegates him to avail the said remedy. Thus, even otherwise writ petitioners have to avail remedy under the Act, 2002.

14. In M/s RKI Builders Private Limited vs. Union of lndia,

Ministry of Finance 8, the Division Bench of this Court held that:

17.8. In Samarath Infrabuild (I) Pvt Ltd, the Madhya Pradesh High Court following the decision of Madras High Court referred to above and held as under:

"14. On due consideration of the aforesaid, we are of the view that law on the subject is well settled by the Apex Court in the case of Mardia Chemicals Ltd. V/s. Union of India &Ors. (Supra), as well as by the Delhi High Court in the

2022(6) ALT 704

case of Dr. Yashwant Singh &Anr. V/s. Indian Bank &Anr. (Supra) and Madras High Court in the case of Gain- N-Nature Food Product V/s. Union of India (Supra). The classification of NPA is not subject to judicial review. Once the Bank authorities have classified account as NPA, the writ court would have no role to play in deciding such any issue/suit. The proper course of the appellant is to challenge the action by filing a statutory appeal as directed under Section 17 of SARFAESI Act, 2002.

18. The remedy under Article 226 of the Constitution of India is extraordinary and knows no bounds. Wherever injustice is caused to a person writ Court extends its long arm of justice and reaches out to a person in need.

Though, Article 226 is very wide, the constitutional Courts have imposed self-imposed restraint on exercising its extraordinary jurisdiction. Statutes and Administrative orders dealing with a particular aspect do provide mechanism to redress grievances arising out of a statute or administrative order. Sometimes, more than one remedy is provided, like Original Authority, Appellate Authority and Revisional Authority. They also create statutory Tribunals with layers of redressal mechanism. Such forums are effective and efficacious to dress the grievance of a person. Whenever the Court notices that the grievance ventilated before the Court can be addressed by a duly constituted administrative authority/quasi judicial body, it relegates the person to avail the said remedy before knocking its doors. In the following decisions, Hon'ble Supreme Court Succinctly stated the need to avail statutorily engrafted remedy before availing the remedy under Article 226 of the Constitution of India.

15. In the above said judgments, the Hon'ble Apex Court and

Division Bench of this Court specifically held that the party

approached the Court without availing the statutory remedy of appeal

provided under Statute or Regulations and CCA Rules, the party is

not entitled to avail the remedy of writ petition straightaway invoking

the provisions of Article 226 of the Constitution of India, and further

held that the statutory forum is created by law for redressal of the

grievance, a writ petition should not be entertained ignoring the

statutory dispensation.

16. In the case on hand, as per the Rule 2 of Chapter-III of Rules of

the respondent Corporation, against the order passed by respondent

No.2 Corporation, the statutory appeal is provided before the appellate

authority. The petitioner without availing the remedy of appeal filed

the writ petition invoking the jurisdiction of this Court under Article

226 of the Constitution of India, which is not permissible under law.

Point Nos.1 and 3 are answered accordingly.

17. As the point Nos.1 and 3 are answered, no further adjudication

is required with regard to point No.2, as the present writ petition

stands dismissed on the ground of availability of alternative remedy.

18. Having regard to the view expressed by the Hon'ble Apex Court

and Division Bench of this Court, when the petitioner has an effective

and efficacious remedy under Rules of the respondent Corporation,

the Court is not inclined to exercise the jurisdiction under Article 226

of Constitution of India. However, the petitioner is granted liberty to

file appeal before appellate authority within a period of four (4) weeks

from the date of receipt of a copy of this order, if the petitioner files

appeal within in the stipulated time, the appellate authority, without

insisting the delay, decide the appeal on merits after giving

opportunity to the petitioner including personal hearing, uninfluenced

by any of the observations made in this order within a period of two

months thereafter. It is made clear that this Court has not expressed

opinion on merits and it is open to the petitioner to raise all the

pleas/grounds which are available to him under law before appellate

authority.

19. With the above directions, the writ petition is dismissed,

accordingly. There shall be no order as to costs.

In view of dismissal of main writ petition, interlocutory

applications pending, if any, in this writ petition shall stand closed.

______________________ J.SREENIVAS RAO, J Date:03.11.2023 mar