Telangana High Court

Dr. P. Viswashanthi vs The State Of Telangana And 2 Others on 15 February, 2024

     THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

                    W.P.No. 17227 of 2021

ORDER:

In this writ petition, the petitioner is seeking a writ of

Mandamus to set aside the Articles of charge issued vide

G.O.Rt.No.639, Health, Medical & Family Welfare (VC-II.2)

Department, dated 20.05.2009 and the consequential

enquiry/action by declaring pendency of the same for the last

more than 12 years as punitive, arbitrary, illegal, contrary to the

verdicts of the Hon'ble Supreme Court and Hon'ble High Courts

and in violation of Articles 14, 16, 19 and 21 of the Constitution

of India and further prayed that this Hon'ble Court may be

pleased to declare Memo No.12735/VC/2/2008-21, dated

20.04.2015, as illegal, arbitrary and also contrary to sub rule 2

of rule 21 of APCS (Classification, Control and Appeals) Rules

1991 and to pass such other order or order in the interest of

justice.

2. Brief facts leading to the filing of the present writ

petition are that the petitioner was initially appointed as a Civil

Assistant Surgeon and was subsequently, promoted as Civil

Surgeon Specialist in the year 2003 and thereafter, the

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petitioner was discharging her duties as such. It is submitted

that on 20.05.2009 while the petitioner was working as Civil

Surgeon Specialist, CHC, Huzurabad, Karimnagar District,

Articles of Charges were framed against her for

misappropriation of funds and a departmental enquiry was

initiated against the petitioner vide G.O.Rt.No.639 Health,

Medical and Family Welfare (VC.II.2) Department. It is

submitted that thereafter, the Enquiry Officer has completed the

enquiry and an enquiry report dated 28.05.2013 was submitted

holding that none of the charges against the petitioner have

been proved. Thereafter, the disciplinary authority has invoked

the provisions of Rule 20(1) thereof APCS(CC&A) Rules for

further enquiry against the petitioner, but no action was taken

by the department and therefore, the petitioner had filed the

present writ present challenging the charge memo and also

further enquiry into the matter on the ground of inordinate

delay. Subsequent thereto in the year 2022, the respondents

have issued another notice for conducting enquiry. The same

was challenged by filing an I.A.No.1 of 2023 and vide orders

dated 28.02.2023, this Court had granted interim stay of all

further proceedings pursuant to the notice dated 30.12.2022.

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3. Learned counsel for the respondents have filed

counter affidavit and the matter had come up today for hearing.

4. Learned counsel for the petitioner submitted that

under Rule 21 of APCS(CC&A) Rules, if the disciplinary

authority was not satisfied with the Enquiry report, the

disciplinary authority could have issued a dissenting note along

with Enquiry report to the delinquent employee and thereafter,

proceed in accordance with law, but could not have issued

notice for further and fresh enquiry. It is further submitted that

the enquiry was also vitiated due to inordinate delay in

initiating enquiry and thereafter concluding the enquiry without

following the prescribed procedure. It is submitted that the

charges were framed in the year 2009, while an enquiry was

conducted in the year 2013 and report was submitted in 2020,

and thereafter, further enquiry was directed in the year 2015

and till date, the enquiry has been concluded. Therefore,

according to him, the said enquiry notice dated 31.12.2022 is

not permissible. In support of her argument that the inordinate

delay in enquiry is not permissible, continuation of disciplinary

proceedings are not permissible, he relied upon the following

two decisions:

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(1) D.Srinivas Vs. Government of A.P., Transport,

Roads and Buildings (Vig.I) Department and Others 1;

(2) G.Mallaiah Vs. A.P.State Handloom Weavers Co-

operative Society Limited and Another 2.

5. Learned Government Pleader, on the other hand,

relied upon the averments made in the counter affidavit and

submitted that the Enquiry report dated 28.05.2013 was

perfunctory and poor and therefore, the matter was remitted to

the Enquiry Officer for further enquiry, which is permissible

under Rule 21(1) of APCS (CC&A) Rules. As regards the ground

of inordinate delay, the learned government pleader submitted

that after remitting the matter to the Enquiry Officer, the

Enquiry Officer was retired and therefore, another Enquiry

Officer has been appointed for conducing of necessary enquiry

and therefore, according to him, further enquiry is in

accordance with law.

6. Having regard to the rival contentions and the

material on record, this Court finds that the charges were

framed against the petitioner in the year 2009 and the Enquiry

1 2013 (4) ALT 1 (D.B.) 2 2010 CJ(AP) 1333

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Officer has been appointed and conducted enquiry in the year

2011 and report was submitted in the year 2013. The Enquiry

Officer has given a finding that none of the charges have been

proved against the petitioner. In such circumstances, Rule 21 of

APCS (CC&A) would come into play which read as under:

Action on the inquiry report:

"21 (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 20 as far as may be.

(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favorable or not to the Government servant.

(3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub rules (4) and (5) below:

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the

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penalties specified in clauses (i) to (v) of Rule 9, should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 22, make an order imposing such penalty:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.

(5) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 9 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Govt. servant any opportunity of making representation on the penalty proposed to be imposed:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Govt. servant". (G.O.Ms.No.22, G.A.(Ser.C) Dept., dt: 30.1.2004).

7. On a cursory reading of the above provisions, it can

be seen that the Disciplinary authority, if not satisfied with the

finding in the Enquiry report could have only directed further

enquiry and not fresh enquiry into the matter. As seen from the

letter dated 20.04.2015, the respondents have only directed

further enquiry into the matter. However, thereafter, no action

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was taken by the respondents and further notice for inquiry was

given in the year 2022. Therefore, it is a clear that no action was

taken by the respondent authorities in conducting or

concluding the enquiry. In such circumstances, the judgments

relied upon by the learned counsel for the petitioner would

apply.

8. In the case of D.Srinivas (cited supra), the Division

Bench of this Court has observed as under:

"14. Even with regard to delay, in this case, it is to be noticed that the alleged incident is of the year 1998.

Preliminary enquiry was conducted on the complaint filed before the Upa-Lokayuktha by not giving opportunity to the petitioner.Show-cause notice was issued on 09.01.2001, for which explanation was filed and later proceedings were dropped. Thereafter, further regular departmental enquiry is initiated pursuant to the orders of the Government; as such there is delay in initiation and completion of the proceedings. With reference to the allegation of the petitioner that there is abnormal delay and laches on the part of the disciplinary authority, in the counter-affidavit, an averment is made which reads as under:

"Regarding the representation of petitioner to set aside punishment on the ground of inordinate delay in concluding the enquiry, it is submitted that the delay is due to administrative reasons of change of Enquiry Officers necessitated due to expiry of their term of office and in conducting and completing the enquiry and obtaining the enquiry report from enquiry officer and processing further at Government level. Hence, the representation of the petitioner is not correct."

15. This Court is of the view that the defence of the respondents on the allegation of abnormal delay raised by the petitioner is not satisfactory. Except administrative reasons, no other reason is indicated which contributed to delay in

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disciplinary proceedings. In the case of M.V.Bijlani v. Union of India (2 supra) while considering the plea of initiation and conclusion of disciplinary proceedings, the Hon'ble Supreme Court has held as under:

"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."

16. In the case of P.V. Mahadevan (3 supra) the inordinate delay of ten years in initiating and completing enquiry was found fault by the Hon'ble Supreme Court by holding that delinquent employee has already suffered enough on account of disciplinary proceedings. On the said ground, charge memo itself was quashed.

17. Further, in the case of Secretary, Ministry of Defence v. Prabash Chandra Mirdha[4], the Hon'ble Supreme Court has held that delay in initiating or concluding enquiry proceedings causes prejudice to the delinquent; as such the same is also a ground for quashing the charge itself.

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."

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9. Further in the case of G.Mallaiah (cited supra), this

Court has observed as under:

"4. The petitioner submitted his explanation and, after conducting domestic enquiry, the Enquiry Officer submitted report stating that the charge framed against the petitioner is not proved. Not satisfied with that, the 1st respondent directed the Enquiry Officer to re-examine the matter. This time, the Enquiry Officer recorded a finding to the effect that the charge against the petitioner is proved. Taking the report into account, the 1st respondent passed an order dated 19.10.2001 dismissing the petitioner from service. The appeal preferred by the petitioner to the 2nd respondent was rejected on 29.10.2002. Hence, this writ petition.

5. The petitioner contends that once the application for voluntary retirement was accepted, there was no basis for the respondents to initiate disciplinary proceedings one year thereafter. According to him, the order accepting the application for V.R.S. was not withdrawn and it continued to operate. He also submits that serious error has crept into the disciplinary proceedings inasmuch as the 1st respondent ordered re-enquiry into the matter, ignoring the 1st report. Some other grounds are also urged.

6. ****

7. ****

8. ****

9. Assuming that it was competent for the 1st respondent to initiate disciplinary proceedings, he committed a serious error in the course thereof. The Enquiry Officer submitted a report on 09.03.2002 holding that the charge framed against the petitioner is not proved. In case the 1st respondent wanted to differ with the findings of the Enquiry Officer, he was under

obligation to issue notice to the petitioner indicating the reasons as to why such a course be not adopted. He did not do so. Instead, he directed the Enquiry Officer to re-examine the matter. On such direction, the Enquiry Officer did nothing more than recording the statement of the petitioner once again. Had any fresh material been brought on record, there would have been some justification for the Enquiry Officer to take a different view, provided the re-enquiry was legal. Obviously, to satisfy the 1st respondent, the Enquiry Officer has simply submitted a report holding that the charge is proved. That resulted in passing of orders dismissing the petitioner from

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service. The proceedings are totally opposed to settled principles of law."

10. As the facts and circumstances in this case are

similar, this Court is of the opinion that the inordinate delay in

conducting further enquiry could not be condoned and the

enquiry re-initiated vide letter dated 30.12.2022 cannot be

sustained and the charge memo dated 20.04.2015 and also the

consequential proceedings are all set aside.

11. Accordingly, this writ petition is allowed. There

shall be no order as to costs.

12. Miscellaneous petitions, if any, pending in this writ

petition, shall stand closed.

____________________________ JUSTICE T.MADHAVI DEVI Date: 15.02.2024 bak

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