Telangana High Court

V.Chinnaiah vs Government Of Telangana on 15 February, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             WRIT PETITION (TR) NO.447 OF 2017

ORDER:

This writ petition has been filed by the petitioner seeking

the following relief:

"... call for records relating to and connected with the impugned punishment of removal from service vide proceedings Rc.No.A1/935/95, dated 12.11.1999 (20.02.1998) and its consequential orders in Rc.No.A1/935/05, dated 22.02.2007 and Memo No.3244/ SED.Ser.A2/2011, dated 21.04.2015 of the 3rd and 1st respondents and set aside the same by holding as illegal, arbitrary, contrary to Rule 20 of APCS (CCA) Rules and violation of principles of natural justice apart from constitutional provisions of Articles 21 and 311 (2)(b) of the Constitution of India and consequently, direct the respondents to grant all consequential benefits such as (i) to treat the suspension period as on duty, (ii) pay and allowances from the date of removal to attaining the age of superannuation of retirement, (iii) pensionary benefits and pension from the date of retirement all other service benefits and to pass such other order or orders as this Hon'ble Court may deem fit and proper."

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

that the petitioner viz., V.Chinnaiah, was appointed as Grade-II

Warden on 21.08.1978 in 2nd respondent-Social Welfare

Department and became an approved probationer. While he was

working as such at Government Social Welfare Boys Hostel (B),

Wanaparthy of Mahabubnagar district, he was placed full

additional charge of another two hostels, viz., Government Boys

Hostel (A) and Vimukthi Hostel (Boys), Wanaparthy, in addition LNA,J WP (TR) NO.447 of 2017

to his regular duties from 1986 onwards and continued till he

was placed under suspension by the 3rd respondent-District

Collector, Mahabubnagar vide proceedings dated 04.07.1995.

3. While the matter stood thus, when the petitioner went to

hospital to take treatment of his ill-health and in his absence,

the ACB authorities conducted surprise check in the said

hostels and taken away all the records and sent a report vide

proceedings dated 01.11.1994 to the 3rd respondent,

recommending to take departmental action against the

petitioner. Based on the report, petitioner was placed under

suspension vide proceedings dated 04.07.1995.

4. The 3rd respondent had issued article of charge memo in

Rc.No.A1/Spl/782/95, dated 11.08.1995 in gross violation of

sub-rules (3) and (4) of Rule 20 of APCS (CCA) Rules, 1991 (for

short, 'the Rules'); that four charges were framed alleging that

petitioner had trespassed into the office of Deputy Director,

Mahabubnagar during late hours without prior permission of

the higher authorities, had offered Rs.2,000/- as bribe to office

attender for giving papers received from ACB against him and

sent Sri Buchanna, Watchman to a hostel to bring the meals

with mala fide intention to broke the almirah of inward section

and to seal the documents and tamper the records and also LNA,J WP (TR) NO.447 of 2017

attempted to destroy the evidence and directed the petitioner to

submit his explanation.

5. While the petitioner was about to submit his explanation

to the above said charge memo, the 3rd respondent issued

another charge memo in Rc.No.A1/935/95, dated 22.08.1995,

framing as many as 11 charges alleging that stock of the rice

received from the stock points were not entered into the stock

registers and there was huge variation in opining balance and

closing balance of rice and there was shortage of rice and also

misappropriated the rice etc. Even before serving this charge

memo to the petitioner, the 3rd respondent had appointed the

Sub-Collector, Gadwal of Mahabubnagar district as Inquiry

Officer vide proceedings dated 20.09.1995 and said proceedings

are not communicated to the petitioner. Later, said inquiry

officer issued another charge memo No.C/4272/95 without date

in the month of November, 1995 in gross violation of all

statutory rules, though he is not competent to do so, directing

the petitioner to submit his explanation within ten days.

6. It is contended that the above charge memos do not

contain imputation of charges, statement of misconduct, list of

documents and list of witnesses etc., as required under rules.

Hence, the charge memo also bad in law and any punishment LNA,J WP (TR) NO.447 of 2017

imposed based on the charge memos are also liable to be

quashed since disciplinary proceedings are liable to be vitiated.

Therefore, the impugned punishment of removal from service by

3rd respondent through impugned proceedings dated

12.01.1999 is liable to be quashed on this ground alone.

7. However, on receipt of memo from the inquiry officer,

petitioner submitted his written statement of defence dated

08.03.1996 denying the charges and requested to drop the

charges. It is contended that inquiry officer has not conducted

inquiry by following the procedure under Rule 20 of the Rules,

1991 and submitted enquiry report dated 03.10.1997 without

there being any evidence and held that seven charges have been

proved out of ten charges and proposed for stoppage of two

increments with cumulative effect and promotion also may be

hold for ten years apart from recovery of cost of the rice

allegedly misappropriated based on comparative statement, but

not on evidence. However, the charges supposed to be held

proved based on evidence adduced during the course of inquiry,

but no enquiry was conducted as per the rules and no

opportunity was given to the petitioner to defend his case. But,

the 3rd respondent without examining the enquiry report with

reference to Rule 20 and principles of natural justice and LNA,J WP (TR) NO.447 of 2017

without considering as to whether the charge memos issued by

the disciplinary authorities are in accordance with sub-rules (3)

and (4) of the Rule 20; that the explanation submitted by the

petitioner was not considered by the 3rd respondent and without

there being any evidence and enquiry, issued impugned

proceedings dated 12.11.1999.

8. The petitioner contended that aggrieved by the said

punishment, he preferred an appeal to the 2nd respondent; that

while the said appeal was pending, criminal case in C.C.No.893

of 1995 for the offence under Sections 457 and 381 of IPC with

regard to the same incident, which is the charge in the first

article of charge dated 11.08.1995, was ended in conviction by

the trial Court; that against said conviction, petitioner preferred

appeal vide Crl.Appeal No.31/1999, which was dismissed and

the petitioner preferred Criminal R.C.No.447 of 2004 before this

Court. When it was pending, 2nd respondent had informed the

petitioner vide memo dated 24.01.2005 that in view of

conviction, his appeal was rejected. However, said

Crl.R.C.No.447 of 2004 was allowed by this Hon'ble Court vide

judgment dated 14.07.2005.

9. Consequent on acquittal, petitioner made several

representations requesting the 2nd respondent to reinstate him LNA,J WP (TR) NO.447 of 2017

into service by disposing of his appeal, which was rejected on

the ground of conviction; that 2nd respondent directed the 3rd

respondent vide letter dated 06.01.2006 to take necessary

action regarding reinstatement of the petitioner. But, no action

has been taken and matter was kept pending. Hence, this Writ

Petition.

10. The Tribunal while admitting the O.A., passed the interim

relief dated 17.04.2013 directing the 1st respondent to pass

appropriate orders, as per rules and on merits, on the report

submitted by the 2nd respondent on 01.12.2009 and 25.03.2011

within a period of eight weeks from the date of receipt of copy of

the order.

11. The 3rd respondent filed counter denying the para-wise

averments made by the petitioner in the writ petition and

contended that the respondents by following due procedure

issued charge memos by the disciplinary authority and on

conducting enquiry and on considering the explanation

submitted by the petitioner, the disciplinary authority had

rightly imposed punishment against the petitioner and finally,

prayed to dismiss the O.A. LNA,J WP (TR) NO.447 of 2017

12. Later, consequent to abolition of A.P. Administrative

Tribunal, the above O.A.No.2651 of 2013 was transferred to this

Hon'ble Court and the same is re-numbered as W.P.(TR)No.447

of 2017.

13. Heard Sri C.Sai Reddy, learned counsel for petitioner and

the learned Government Pleader for Services-I appearing for the

respondents.

14. Learned counsel for petitioner submitted that petitioner

retired from service on attaining the age of superannuation. He

further submitted that petitioner was acquitted in criminal case

by this Hon'ble Court vide Crl.R.C.No.447 of 2004, dated

14.07.2005 and therefore, petitioner is entitled to receive all the

consequential benefits i.e., pension and pensionary benefits

from the date of removal to till the date of retirement and also

treat the suspension period as on duty.

15. Learned counsel for petitioner further submitted that the

respondents failed to follow the procedure in appointing the

enquiry officer as contemplated under rule 20 of the Rules,

1991 and the entire proceedings are vitiated on that sole ground

and prayed to allow the writ petition.

LNA,J WP (TR) NO.447 of 2017

16. In support of the contention, learned counsel for

petitioner relied on the following decisions:

i) Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha 1;

ii) S.Zabeda Parveen vs. A.P.Women's Co-operative Finance corporation, Hyderabad and another 2;

iii) B.Sanjeeva Reddy vs. Southern Power Distribution Co. of Telangana Ltd., Hyderabad and others 3;

(iv) Electronics Corporation of India Ltd., (ECIL), Hyderabad and another vs. H.K.Bhatia 4

17. On the other hand, the learned Government Pleader for

respondents submitted that the proceedings in a criminal case

and the departmental proceedings operate in distinct and

different jurisdictional areas. Though the petitioner was

acquitted in criminal case, he cannot escape from the

departmental proceedings, where a charge relating to

misconduct is being investigated, the factors in disciplinary

proceedings are many, as such, an enforcement of discipline or

to investigate the level of integrity of the delinquent, the

standard of proof required in those proceedings is also different

than that required in a criminal case; that while in the

departmental proceedings, the standard of proof is one of

(2012) 11 SCC 565

2015 SCC Online Hyd 653

2023 (2) ALD 106 (TS)

2014 (6) ALD 134 (DB) LNA,J WP (TR) NO.447 of 2017

preponderance of probabilities, in a criminal case, the charge

has to be proved beyond reasonable doubt. He therefore, prayed

to dismiss the writ petition.

Consideration:

18. A perusal of the record discloses that petitioner was

appointed as Grade-II Warden on 21.08.1978 and was placed

full additional charge of two more hostels. The ACB authorities

conducted surprise check in the said hostels and taken away all

the records and sent a report vide proceedings dated

01.11.1994 to the 3rd respondent, recommending to take

departmental action against the petitioner. Accordingly, basing

on the report of the ACB authorities, the petitioner was placed

under suspension vide proceedings dated 04.07.1995 by the 3rd

respondent. A charge memo was issued on 22.08.1995 framing

11 charges by the 3rd respondent and that departmental enquiry

was initiated and initially Sub-Collector was appointed as

enquiry officer. However, the enquiry report was submitted by

the Revenue Divisional Officer vide letter dated 03.10.1997 and

basing on which, the 3rd respondent issued impugned

proceedings.

LNA,J WP (TR) NO.447 of 2017

19. In B.Sanjeeva Reddy (supra), learned single Judge of this

Hon'ble High Court held that "the enquiry officer has pre-judged

and pre-determined the issue even before the submission of

explanation by the employee to the show-cause notice and the

same would amount to post-decisional hearing. Further, the

competent authority was required to pass speaking orders by

giving reasons for imposing penalty after considering the inquiry

report, representation and other material concerning

disciplinary proceedings on record, the respondent authority

failed to do so and judged the issue at the stage of issuance of

show-cause notice itself. Therefore, the learned Judge set aside

the impugned order as being unreasoned, routine and without

application of mind.

20. In Electronics Corporation of India Limited (supra), the

Division Bench of erstwhile High Court of Andhra Pradesh at

paragraph-14 held as under:

"14. A bare reading of the enquiry report would leave no manner of doubt that the enquiry officer had miserably failed to comply and adhere to the procedure prescribed in rules 18 and 19 of the rules in making the enquiry report. In other words, the so-called enquiry report cannot be termed as enquiry report in the eye of law. The duty of the disciplinary authority in considering the enquiry report is governed by Rule 35. ..."

LNA,J WP (TR) NO.447 of 2017

21. In S.Zabeda Parveen (supra), this Hon'ble High Court

held as under:

"51. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of a department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient hold that the charges are proved.....

Xxx

57. In order to find an employee guilt of misconduct, the burden lies on the department to prove that the employee is guilty of such misconduct based on legal evidence. Unlike in a criminal case where proof beyond reasonable doubt is sine qua non for conviction of an accused, in departmental proceedings preponderance of probabilities is sufficient to find an employee guilty of misconduct.... "

22. In Chandrama Tewari v. Union of India 5 , the Hon'ble

Apex Court held that enquiry must be in accordance with the

rules and in just and fair manner, that the procedure at the

enquiry must be consistent with the principles of natural justice.

1987 Supp. (1) SCC 518 LNA,J WP (TR) NO.447 of 2017

23. The other decision relied upon by the learned counsel for

petitioner is distinguishable on facts and do not apply to the

facts and circumstances of this case.

24. From the record and material placed on record, it appears

that initially Sub-Collector, Gadwal was appointed as Enquiry

Officer vide proceedings dated 20.09.1995. The enquiry officer

issued another charge memo No.C/4272/95, without date in

the month of November, 1995. Subsequently, the District

Collector had withdrawn the appointment of the Sub-Collector

as enquiry officer and the 3rd charge memo dated

nil-11-1995 was subsequently withdrawn. Later, the Sub-

Collector was again reappointed as enquiry officer.

25. It is relevant to note that enquiry officer has to conduct

the enquiry as per due process, service rules, and in unbiased

manner. However, in the present case, the enquiry officer issued

charge memo though he is not competent to issue the same

being enquiry officer, which would only infer that the enquiry

officer is pre-determined.

26. Further, the criminal case registered against the

petitioner in C.C.No.893 of 1995 was ended in conviction by the

trial Court on 02.02.1999 and the appeal filed by the petitioner LNA,J WP (TR) NO.447 of 2017

in Crl.Appeal No.31/1999 was also dismissed on 11.03.2004.

The petitioner submitted two appeals dated 07.04.2004 and

16.06.2004 against the punishment of removal from service.

The 2nd respondent vide Memo dated 07.07.2004 rejected the

said appeals on the ground that he was convicted by the Court

of Law and thus, there cannot be an appeal against such order.

27. The petitioner preferred Crl.R.C.No.449 of 2004 before

this Court and the same was allowed by this Court by judgment

dated 14.07.2005. Petitioner submitted several representations

to the 2nd respondent for reinstatement into service in the light

of acquittal of the petitioner in Crl.R.C.No.449 of 2004, however,

the same were not considered.

28. It is relevant to mention that Sub-Collector is the enquiry

officer. However, the Revenue Divisional Officer, who is no way

concerned with the enquiry, had submitted enquiry report to

the Collector for further action, which is contrary to the

procedure, CCA Rules and thus, is improper and impressible.

29. During the course of hearing, the learned counsel for

petitioner specifically brought to the notice of this Court the

above irregularity, however, the learned Govt. Pleader could not LNA,J WP (TR) NO.447 of 2017

give any clarification on this aspect. Therefore, it has to be held

that the entire enquiry proceeding itself vitiated.

30. In the light of the above facts, circumstances, discussion

and settled legal position, in considered opinion of this Court,

the procedure followed by the enquiry officer is opposed to the

well-settled legal principles, besides Rule 20 and other CCA

Rules thereby rendering the enquiry a nullity. Accordingly, the

proceedings dated 12.01.1999 awarding punishment of removal

from service and its consequential orders in Rc.No.A1/935/05

dated 22.02.2007 and Memo dated 21.04.2015 of 3rd

respondent and 1st respondent, respectively, are liable to be set

aside and are accordingly, set aside.

31. In the present case, petitioner was suspended on

04.07.1995 and was removed from service on 12.01.1999.

Petitioner was convicted in criminal case on 02.02.1999 and was

acquitted on 14.07.2005. On representation given by the

petitioner, respondent no.2 addressed a letter dated 06.01.2006

to respondent no.3 with instructions to take necessary action for

reinstatement of the petitioner in view of the acquittal in

criminal case. However, petitioner has not been reinstated into

service and in the mean while, he reached the age of

superannuation.

LNA,J WP (TR) NO.447 of 2017

32. However, the fact remains that whatever be the reason, he

has not served the State during the period between dismissal

from service and his attaining the age of superannuation.

Therefore for this interregnum, he is not entitled to be paid

salary on the principle of 'no work, no pay'. That being said, the

subject period needs to be reckoned only for the purpose of

fixation of pension & payment of terminal benefits, that have

over the years accumulated.

33. In the light of the above, Writ Petition is partly allowed

with the following directions:

i) The proceedings dated 12.01.1999 awarding

punishment of removal from service and its consequential

orders in Rc.No.A1/935/05 dated 22.02.2007 and Memo dated

21.04.2015 of 3rd respondent and 1st respondent, respectively,

are set aside;

ii) Petitioner is entitled to arrears of pay, increments and

consequential benefits for the suspension period i.e., from

04.07.1995 to 12.01.1999;

iii) Petitioner is entitled to continuity of service from

13.01.1999 for the purpose of pension and terminal benefits till

the date of his superannuation;

LNA,J WP (TR) NO.447 of 2017

iv) The respondents are directed to comply with the above

directions within a period of eight weeks from the date of receipt

of copy of this order.

There shall be no order as to costs. Pending

miscellaneous applications if any shall stand closed.