Telangana High Court

Mandha Rameshwaramma vs The State Of Telagana And 4 Others on 25 April, 2024

  THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


                 WRIT PETITION No.20281 of 2019

ORDER:

This writ petition is filed by the petitioner seeking the

following relief:

"...to issue an appropriate Writ, order more particularly one in the nature of Writ of Mandamus declaring the action of the 5th respondent in terminating the services of the petitioner as Anganwadi Teacher of Atmakur-I, AWC, Wanaparthy District vide proceedings No.55/ICDS/Atmakur/2019, dated 30.04.2019, without following principles of natural justice, without conducting any enquiry on the alleged lapses is illegal, arbitrary, and consequently, set aside the same and direct the respondents to reinstate the petitioner as Anganwadi Teacher of Atmakur-I with all consequential benefits including continuity of service and monetary benefits and pass....."

2. Heard Sri Venkateshwarlu Gummadavelly, learned

counsel appearing for the petitioner.

3. The brief facts of the case are that the petitioner has

physical disability with 84%, and she was appointed as an

Anganwadi Worker, Atmakur-I Centre on 15.08.2002. While

things stood thus, the 4th respondent issued a show cause

notice dated 11.03.2019, which was served on the petitioner on

16.03.2019, directing the petitioner to submit her explanation

on the alleged lapses and further directed to show cause why

action initiated against the petitioner in terms of G.O.Ms.No.14

and directed to submit her explanation within three days from

the date of receipt of the copy. During the said period, the

petitioner was bedridden due to ill-health, informed the same to

the immediate superior officer and requested time to submit her

explanation. The 5th respondent issued an impugned

proceedings vide bearing No.55/ICDS/Atmakur/2019, dated

30.04.2019, immediately removing the petitioner from service.

Hence, the present Writ Petition.

4. The respondents filed a counter stating that they had

issued a show cause notice on the petitioner on 11.03.2019,

and it was served on the petitioner on 16.03.2019 with

instructions to submit her explanation for not updating of

records and negligence towards duties and higher authorities'

instructions. In reply, the petitioner accepted that she had not

responded to the memos given by the supervisor and requested

for an excuse. They further stated that they have followed the

guidelines issued by the Government of Telangana vide

G.O.Ms.No.14, dated 20.05.2015 of WCD & SC Department and

given plenty of opportunities to the petitioner to streamline the

records and other activities as prescribed by the Government.

5. Learned counsel for the petitioner contended that the 5th

respondent issued an impugned proceedings vide bearing

No.55/ICDS/Atmakur/2019, dated 30.04.2019, removing the

petitioner from service immediately, which is a major penalty.

The respondents without conducting any enquiry, removed the

petitioner from the service and the same is liable to be set

aside.

Learned counsel for the petitioner relied upon the

judgment of the Apex Court in Kulwant Singh Gill Vs. State

of Punjab 1. The Apex Court at para Nos.4 and 5 held as

under:

"Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an inde- pendent head of penalty and it could be imposed as punish- ment in an appropriate case.

It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so

fails Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. With- holding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time- scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appel- lant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach the problem from this per- spective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab & Ors., I.L.R. 1985 2 P & H. 193, P.C. Jain, A.C.J. speaking for the division bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time-scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the

(4) 1990 Scale (2) 597

conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future incre- ments in the time scale of pay even permanently with ex- pressly stating so. This preposterous consequences cannot be permitted to be permeated. Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after hold- ing inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules;

it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.

The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance. Conducting an enquiry, dehorse the rules is no enquiry in the eye of law. It cannot be countenanced that the pretence of an enquiry without reason- able opportunity of adducing evidence both by the Dept. as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules. Those rules admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reason- able opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to crossexamine the witnesses produced by the Dept. and to examine witnesses if intended on his behalf and to place his version; consideration thereof by the enquiry officer, if the disciplinary authority himself is not the enquiry officer. A report of the enquiry in that behalf is to be placed before the disciplinary authority who then would consider it in the manner prescribed and pass an appropriate order as per the procedure in vogue under the Rules. The gamut of this procedure was not gone through. Therefore, the issuance of the notice and consideration of the explanation is not a procedure in accordance with Rules 8 and 9. Obviously, the disciplinary authority felt that the enquiry into minor penalty is not necessary and adhering to the principles of natural justice issued the show cause notice and on receipt of the reply from the delinquent officer passed the impugned order

imposing penalty thinking it to be a minor penalty. If it is considered, as stated earlier, that it would be only a minor penalty, the proce- dure followed certainly meets the test of the principles of natural justice and it would be a sufficient compliance with the procedure. In view of the finding that the impugned order is a major penalty certainly then a regular enquiry has got to be conducted and so the impugned order is clearly illegal.

6. A perusal of the impugned proceedings bearing

No.55/ICDS/Atmakur/2019, dated 30.04.2019 goes to show

that the petitioner has committed 16 lapses as mentioned in

the said proceedings. But, the respondents without conducting

any enquiry or without issuing any charge memo, straightaway

removed the petitioner from the service and it is quite illegal.

Moreover, as per the above said judgment, removal of the

petitioner from the service without conducting an enquiry is a

major penalty and per se it is illegal. As such, the impugned

order issued by the 5th respondent vide proceedings

No.55/ICDS/Atmakur/2019, dated 30.04.2019 is liable to be

set aside. Accordingly, set aside.