Telangana High Court
N.Krishnamacharyulu, S/O ... vs State Of Andhra Pradesh on 12 January, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.5832 of 2014
ORDER:
This writ petition is filed seeking the following prayer:
"to issue a writ, order or direction more particularly one in the nature of a writ of mandamus,
a) declaring the order vide Rc.No.B1/1419/2011 dated 28.10.2011 of the respondent no.3 as confirmed by the resolution dated 07.03.2012 of the respondent no.4 and by D.Dis.No.C2/19407/2012, dated 19.12.2012 of the respondent no.2 as arbitrary, illegal and violative of the rights guaranteed to the petitioner under articles 14, 16 and 21 of the Constitution of India and
b) Direct the respondents to reinstate the petitioner forthwith into service with all consequential benefits and pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. Heard Sri P.S.Rajasekhar, learned counsel appearing for the
petitioner and Sri J.R.Manohar Rao, learned Standing Counsel for
Endowments appearing on behalf of respondent Nos.3 and 4. Perused the
record.
3. It has been contended by learned counsel appearing for the
petitioner that the petitioner had studied up to 7th standard and passed
'Pravesa' in the year 1981. The petitioner was appointed as 'Archaka' in
the year 2000 at 'Parnasala', which is a sub temple of Sri Seeta Rama
Chandra Swamy Devastanam, Badrachalam i.e. 3rd respondent herein.
While so, the petitioner was issued a charge memo under Rule 20 of the
Telangana Civil Service (Classification, Control and Appeal) Rules, 1991
(For short "the Rules, 1991") and placed him under suspension by the 3rd
respondent vide proceedings in Rc.No.B1/1419/2011, dated 21.09.2011. 2
For which, the petitioner has submitted has submitted his explanation on
04.10.2011 denying the charges levelled against him. Without considering
the same and without conducting enquiry, the 3rd respondent has imposed
the punishment of compulsory retirement from service vide proceedings
in Rc.No.B1/1419/2011, dated 28.10.2011. Aggrieved by the same, the
petitioner preferred an appeal to the 4th respondent and the same was
rejected on 07.03.2012. Thereafter, he preferred second appeal before
respondent No.2 and said appeal was also rejected on 19.12.2012. It is
further contended that the appeals filed by the petitioner were rejected by
the respondent-authorities mechanically without assigning any valid
reasons. It is further contended that the 3rd respondent has passed order
of compulsory retirement against the petitioner without conducting an
enquiry and giving an opportunity to defend his case, which amounts to
violation of the principles of natural justice. It is further contended that a
copy of the alleged complaint filed by one K.Venkateswara Rao, dated
13.09.2011 was not furnished to the petitioner and the entire proceedings
have been conducted behind his back.
4. It is further contended that the post of 'Archaka' is governed by the
Telangana Charitable and Hindu Religious Institutions and Endowments
Archakas and Other Office Holders and Servants Qualifications and
Emoluments Rules, 2004 (for short "the Rules, 2004) and the punishment
of compulsory retirement from service is not specified either in Section 37
of the Telangana Charitable and Hindu Religious Institutions and 3
Endowments Act, 1987 (for short "the Act") or Rule 3 of the Office Holders
and Servants Punishment Rules, 1987 (For short "the Punishment Rules").
5. It is further contended that even in case where the punishment
prescribed under Section 37 of the Act or in Rule 3 of the Punishment
Rules is proposed to be imposed, the same cannot be done without
following the procedure laid down in Rule 19 of Rules, 1991 and the same
contemplates conducting of enquiry. In the present case, no enquiry was
conducted before imposition of compulsory retirement of service against
the petitioner. Therefore, the impugned punishment is contrary to Rule 3
of the Punishment Rules. In case, the competent authority comes to the
conclusion that the provisions of Rule 19 have to be waived, the same
cannot be condoned without recording sufficient reasons. In the present
case, no such exercise was carried out. Finally, he prays this Court to
pass appropriate orders. In support of his contentions, learned counsel
relied on the judgments of Apex Court in Divisional Forest Officer,
Kothagudem v. Madhusudhan Rao 1, B.C.Chaturvedi v. Union of India 2 and
judgment of this Court in A.Venkat Reddy v. District & Sessions Judge,
Chittoor 3.
6. Per contra, learned Standing Counsel appearing on behalf of
respondent Nos.3 and 4 contend that the petitioner is habituated to
Alcohol and on the written complaint, dated 13.09.2011, given by
K.Venkateswara Rao, Junior Assistant of the 3rd respondent-Devasthanam,
1 (2008)3 Supreme Court Cases 469 2 (1995) 6 Supreme Court Cases 749 3 2008(6) ALT 606 (D.B) 4
who was in-charge on the day stated that the petitioner was attending his
duties in drunken state and caused damage to the image of the
3rd respondent-Devasthanam and also caused inconvenience to the
pilgrims. For which, a charge memo was issued and after receiving his
explanation, the 3rd respondent-Devasthanam conducted an enquiry on
the allegations levelled against him. During the enquiry, the Executive
Officer found adequate evidence against the petitioner including Video
Clippings. Therefore, the 3rd respondent ordered for compulsory retirement
of the petitioner by payment of pension and other benefits. Aggrieved by
the same, the petitioner preferred an appeal before the 4th respondent and
the same was rejected. Thereafter, second appeal was filed by him before
the 2nd respondent and the same was also rejected vide order dated
07.03.2012. In turn, the petitioner had filed the second appeal before the
2nd respondent and the 2nd respondent after obtaining opinion from Vydika
Committee, confirmed the appeal. It is further contended that the
petitioner was habituated to drinking and was not discharging his duties
properly. Due to his misconduct while discharging his duties, the
concerned authorities of Devasthanam warned him several times to change
his attitude. But, he did not change his attitude and continued his habit
by causing inconvenience to the devotees. Further, for the proven charges,
the 3rd respondent has imposed punishment of compulsory retirement
from service vide Rc.No.B1/1419/2011, dated 28.10.2011 and the same
was confirmed in appeals. Therefore, the respondents are justified in 5
imposing the punishment of compulsory retirement vide order dated
18.10.2011.
7. This Court has taken note of the submissions made by the
respective Counsel.
8. It is relevant to here to extract the relevant Rule and the proposition
of law laid down in the judgments relied on by the learned counsel for the
petitioner.
9. In Madhusudhan Rao's case (1 supra), the Apex Court while dealing
with appeals and revision at para No.20 held as under:
20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum.
10. In B.C.Chaturvedi's case (2 supra), the Apex Court at para
Nos.18, 20 and 25 held as under:
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-
finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
20. Consequently, the appeal of the Union of India is allowed. The order of the Tribunal modifying the punishment is set aside and that of the 6
disciplinary authority is maintained. In the circumstances, parties to bear their own costs.
25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law-makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour court/industrial tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power under Section 11-A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to government employees or employees of public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.
11. Section 37 of the Telangana Charitable and Hindu Religious
Institutions and Endowments Act, 1987 reads as under:
All office-holders and servants attached to a charitable or religious institution or endowment, shall be under the control of the trustee; and the trustee may, after following the prescribed procedure and for reasons to be recorded in writing, impose fine, or order suspension, removal, dismissal or any other prescribed penalty, on any of them for breach of trust, misappropriation, incapacity, disobedience of orders, misconduct, violation of the code of conduct laid down or neglect of duty assigned by or under this Act or other sufficient cause.
[Provided that in case of a religious office holder, it shall be competent for the Commissioner or an officer authorized by him by an order in writing to impose the penalty of removal or dismissal on a report made by the trustee or Executive Officer, or where there is no executive officer or the trustee as the case may be, in such manner as may be prescribed.]
(2) Notwithstanding anything in sub-section (1), in the case of an office-
holder or servant of an institution or endowment whose annual income 7
exceeds rupees ten lakhs, the power to impose any penalty, specified in that sub-section shall, subject to such restrictions and conditions, as may be laid down by the Government, be exercised by the executive officer after following such procedure as may be prescribed.
[Provided that in the case of a religious office holder, it shall be competent for the Commissioner or an officer authorized by him by an order in writing to impose the penalty of removal or dismissal on a report made by the trustee or executive officer or where there is no executive officer or the trustee as the case may be, in such manner as may be prescribed.]
(3)(a) Any office-holder or servant aggrieved by an order passed under sub-section (1) by the trustee may, within sixty days from the date of receipt of the order by him, prefer an appeal to the Commissioner, the Deputy Commissioner, or the Assistant Commissioner as the case may be having jurisdiction, from the order of the trustee;
(b) Any office-holder or servant aggrieved by an order passed under sub- section (2) by the Executive Officer, may within sixty days from the date of receipt of the order by him prefer an appeal to the trustee.
(4) (a) Any office-holder or servant may, within sixty days from, the date of receipt by him of the order passed in an appeal filed under clause (a) of sub- section (3), prefer a second appeal if such order is made by,--
(i) the Commissioner to the Government;
(ii) the Deputy Commissioner or the Assistant
Commissioner, to the Commissioner;
(b) Any office-holder or servant aggrieved by an order of the trustee under clause (b) of sub-section (3) may, within sixty days from the date of receipt by him of such order, prefer a second appeal to the Commissioner.
(5) (a) Where it is noticed by the trustee that any office- holder or servant attached to an institution or endowment has not been dealt with suitably by the Executive Officer under sub-section (2) for any of the lapses specified in sub- section (1) the trustee may direct the Executive Officer to take action under sub-section (2), failing which the trustee may after following the prescribed procedure, impose, by an order in writing any of the penalties specified in sub-section (1);
(b) Any office-holder or servant aggrieved by an order, passed by the trustee or by the Executive Officer, in pursuance of the direction given under clause (a) may, within sixty days from the date of receipt of ‗the order by him, prefer an appeal to the Commissioner.
12. Rule 3 of Office Holders and Servants Punishment Rules, 1987:
3. In addition to the penalties specified in sub-section (1) of Section 37 of the Act, the following penalties may also be imposed by the 8
competent authority on an office holder or servant attached to a charitable or religious institution or endowment namely:-
(i) Censure
(ii) withholding of increments or promotion
iii) Reduction of lower rank in the Seniority list or to a lower grade or to a lower stage in a time-scale of pay; and
iv) Recovery from pay of the whole or any part of the pecuniary loss caused to the Government or to a charitable or religious institution or endowment by negligence or breach of orders.
4. No order imposing on an office-holder or servant attached to a Charitable or Religious Institution or Endowment, any of the penalties specified in Section 37 and Rule 3 above other than an order based on facts which have led to the conviction of the office- holder or servant by a Criminal Court shall be passed except after following the procedure laid down in Rule 19 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963;
Provided that this rule shall not apply where the authority competent to impose the penalty is satisfied that for reasons to be recorded in writing, it is not reasonably practicable to hold inquiry or give opportunity as required under aforesaid Rule 19.
13. A perusal of the record discloses that the petitioner was imposed
with the punishment of compulsory retirement, which is a major
punishment, for which a regular enquiry is required to be conducted.
In the present case, the said punishment was imposed without conducting
any regular enquiry. Further, admittedly, the punishment of compulsory
retirement from service is not enumerated in Section 37 of the Act or in
Rule 3 of the Punishment Rules. As held by the Apex Court while
exercising power under Article 226 of the Constitution that there is no
inherent reason to disallow application of judicial mind to the question of
proportionality of punishment/penalty. But then, while seized with this
question as a writ court interference is permissible only when the 9
punishment/penalty is shockingly disproportionate. In the present case
also, the punishment of compulsory retirement from service was imposed
against the petitioner due to misconduct while discharging his duties.
As already noted, the punishment of compulsory retirement imposed
against him is not specified in Section 37 of the Act or in Rule 3 of the
Punishment Rules, which is impressible under law. Apart from that, no
regular enquiry has been conducted before imposing the punishment of
compulsory retirement against the petitioner, which is shockingly
disproportionate to the proven misconduct. Therefore, in the facts and
circumstances of the case, this Court is inclined to set aside the impugned
proceedings.
14. Accordingly, the Writ Petition is allowed. The impugned proceedings
in Rc.No.B1/1419/2011, dated 28.10.2011 issued by respondent No.3 as
confirmed by the resolution, dated 07.03.2012, of respondent No.4 and by
proceedings in D.Dis.No.C2/19407/2012, dated 19.12.2012, issued by
respondent No. 2 are hereby set aside. However, this order does not
preclude the respondent-authorities from taking appropriate action against
the petitioner, in accordance with law.
Miscellaneous petitions pending, if any, shall stand closed. No
costs.
_____________________ PULLA KARTHIK, J 12 .01.2024 Nvl
