Telangana High Court

Syed Shamshudin vs State Of Telangana And 3 Others on 14 June, 2024

          THE HON'BLE SRI JUSTICE PULLA KARTHIK

                   WRIT PETITION No.18949 of 2022
ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is

filed seeking the following relief:

"...to issue writ or order more particularly Writ of Certiorari calling for the records pertaining to the Impugned order vide D.O.No.1443-L and O/B8/0023/2018-22 dated 19.02.2022 passed by the 3rd Respondent and consequently direct the respondents to reinstate the petitioner into service by setting aside the order passed by the 3rd respondent dated 19.02.2022 and may pass..."

2. Heard Sri A.M. Qureshi, learned Senior Counsel, representing

Ms. Saleha Begum, learned counsel for the petitioner and Sri S. Rahul

Reddy, learned Special Government Pleader for Home (Services), appearing

on behalf of the respondents.

3. Learned Senior Counsel for the petitioner submits that while the

petitioner was working in the office of respondent No.3 as a

Superintendent, a charge memo dated 09.08.2019 was issued to him

alleging that he and one Mr. Siva Kumar, Junior Assistant, have

committed gross misconduct, showing lack of integrity and moral

turpitude towards legitimate duties, indulging in incorrect practices by

collecting money from four On-Duty Home Guards, and the petitioner was

asked to submit his explanation. In response to the same, the petitioner

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submitted his explanation on 03.09.2019 denying all the allegations made

against him, requesting to provide him an opportunity of personal hearing

and to drop all further proceedings on the charge memo. Learned Senior

Counsel vehemently contends that in spite of submitting his explanation,

neither respondent No.3 nor the enquiry officer did choose to issue a

notice to the petitioner to enable him to prove the charges against him as

false. Further, the petitioner had made a representation on 16.06.2021

with a specific request to supply the copies of Preliminary Enquiry

statements of On-Duty Home Guards, and also to enable him to attend the

enquiry. However, without considering the same and without providing

him an opportunity of personal hearing, the respondents have conducted

the enquiry and the enquiry officer submitted his report holding the

charges against the petitioner as proved, and basing on the said report,

respondent No.3 has erroneously passed the impugned order dated

19.02.2022 imposing the punishment of dismissal from service.

4. Learned Senior Counsel further contends that the action of

respondents in not providing the petitioner an opportunity of personal

hearing, in spite of acknowledging his defense statement dated

03.09.2019, is clearly in violation of principles of natural justice, and mere

recording by the enquiry officer that the petitioner had not attended for

enquiry does not dispense with the statutory requirement of complying the

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principles of natural justice, more particularly, when the representation of

the petitioner dated 16.06.2021 would clearly show that the petitioner has

been making several representations to provide him an opportunity of

hearing, so as to substantiate that the allegations leveled against him are

false. He further contends that the finding given by respondent No.3 in

the impugned order that the petitioner had not attended before the enquiry

officer and therefore, they have conducted an ex parte oral enquiry, itself

shows that the respondents, more particularly, respondent No.4 did not

conduct an enquiry by giving reasonable opportunity to the petitioner to

defend his case, and the same in gross violation of principles of natural

justice. On this ground alone, the impugned order is liable to be set aside,

as it was passed without recording any reasons, much less any valid

reason, in view of the law laid down by the Constitution Bench of the

Hon'ble Apex Court in a judgment reported in S.N. Mukharjee v. Union of

India 1. Therefore, learned Senior Counsel prays this Court to allow the

present writ petition by setting aside the impugned order vide D.O.No.1443

No.L&O/B8/0023/2018-22 dated 19.02.2022 issued by respondent No.3.

In support of his contentions, learned Senior Counsel relied on the

following decisions of the Hon'ble Apex Court:

i. L.K. Verma v. H.M.T. Ltd and Anr. 2,

AIR 1990 SC 1984 2 AIR 2006 Supreme Court 975

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ii. Union of India and others v. Ramzan Khan 3, iii. Managing Director, ECIL v. B. Karunakar 4, iv. U.P. State Spinning Co. Ltd. v. R.S. Pandey and another 5

5. Per contra, learned Special Government Pleader for Home, appearing

for the respondents, submits that respondent No.4 submitted a Note dated

19.04.2018, which was forwarded by respondent No.2, informing that

while the petitioner and co-delinquent were working at the Home Guards

Office, they indulged in corruption activities by collecting Rs.50,000 +

Rs.30,000 (total of Rs.80,000/-) from four On-Duty Home Guards, for their

reinstatement, and therefore, disciplinary action was recommended

against the petitioner and the co-delinquent. Accordingly, they were

placed under suspension vide order dated 19.06.2018. Thereafter, the

petitioner and the co-delinquent were handed over with an Article of

Charges under Rule 20 of the Telangana Civil Services (Classification,

Control and Appeal) Rules, 1991, vide charge memo dated 09.08.2019,

calling for their defense statements. In response to the same, the

petitioner submitted his written statement of defense on 03.09.2019

denying the charges leveled against him and had requested for personal

hearing. Considering the fact that the co-delinquent pleaded guilty of the

charge and the petitioner denied the charges by shifting the liability on co-

3 (1991) 1 SCC 588 4 AIR 1994 Supreme Court 1074 5 (2005) 8 SCC 264

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delinquent, the disciplinary authority decided to conduct an enquiry so as

to elicit the truth and as per the provision of Rule 20 (5)(b) of the TCS

(CC&A) Rules, since the petitioner had denied the charges under Rule 20

(2), an Oral Enquiry was ordered against the petitioner and the co-

delinquent, duly appointing the Assistant Commissioner of Police, Sultan

Bazar Division, Hyderabad, as the Enquiry Officer vide proceedings dated

04.11.2019.

6. Learned Special Government Pleader further contends that the

contention of the petitioner that without considering his representation

dated 16.06.2021, wherein, he requested to supply the copies of

Preliminary Enquiry statements of the On-Duty Home Guards to attend

the enquiry, is not correct, and in fact, the Enquiry Officer, vide letter

dated 23.01.2021, had informed the petitioner that the letter of the

Commandant Home Guards, which is also called the Preliminary Enquiry

Report, was already cited as the prosecution exhibit by respondent No.3

and was already supplied to the petitioner by respondent No.3, and also

stated that there is no other document available with him, and directed to

attend the oral enquiry, failing which, it is presumed that the petitioner

has no explanation in his defense and further action will be taken.

However, having acknowledged the same on 27.01.2021, the petitioner

failed to attend the oral enquiry. The enquiry authority issued notices

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dated 27.11.2019, 06.12.2019, 30.01.2020, 12.08.2020, 08.09.2020,

19.01.2021, 29.01.2021 and 09.02.2021, to the petitioner and co-

delinquent to attend the oral enquiry for recording the statement of

witnesses, but the petitioner, even after acknowledging the notices dated

27.11.2019, 06.12.2019, 30.01.2020 and 19.01.2021, had not attended

the oral enquiry. Accordingly, the enquiry authority secured the presence

of the witnesses, recorded their detailed statements, and basing on the

documentary evidence i.e., exhibited items from 1 to 19, and as per the

evidence available with him, the enquiry officer held the charges against

the petitioner and the co-delinquent as proved vide his letter

No.02/OE/SBR-D/2020 dated 03.06.2021.

7. He further submits that as per Rule 21 of the TCS (CC&A) Rules, the

findings of the enquiry authority were supplied to the petitioner and the

co-delinquent vide office order dated 09.07.2021, calling for their further

representations, if any, within ten days from the date of its receipt, and

subsequently, having acknowledged the same on 19.07.2021, the

petitioner submitted his further representation on 07.08.2021 denying the

proven charges. Thereafter, on consideration of the said representation,

along with the connected records and minutes of the oral enquiry

conducted against the petitioner and the co-delinquent, the disciplinary

authority has agreed with the findings of the enquiry officer who held the

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charges against the petitioner and the co-delinquent as proved. Therefore,

the disciplinary authority passed the impugned order dated 19.02.2022,

awarding the punishment of dismissal from service on the petitioner and

the co-delinquent and the period of suspension from 19.06.2018 to

19.02.2022 was treated as not on duty. As such, the respondents are

justified in passing the impugned order dated 19.02.2022.

8. He further submits that the contention of the petitioner that he was

not paid any subsistence allowance from the date of his suspension till the

date of passing of the impugned order is not correct. As per the provision

of FR 53(1)(a), the petitioner is entitled for payment of subsistence

allowance, subject to submitting a non-employment certificate to the effect

that the petitioner is not engaged in any other employment, business,

profession or vocation as per the provisions of FR 53(2). However, the

petitioner failed to submit the non-employment certificate, which is

mandatory as per provisions of FR 53(2). Had the petitioner submitted the

said certificate as required, his case would have been examined and

considered for payment of subsistence allowance. However, since he failed

to produce the same, he was not paid any subsistence allowance. He

further contends that the TCS (CC&A) Rules provide ample opportunities

to the petitioner to challenge orders of the disciplinary authorities by way

of filing appeal/revision petitions before the competent authorities. As per

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Rule 35 of the TCS CC&A Rules, the petitioner could have preferred an

appeal to the appellate authority i.e., Director General of Police,

Hyderabad, within three months from the date of receipt of the impugned

order. In the present case, the petitioner acknowledged receipt of the

impugned order on 26.02.2022. However, he did not choose to prefer an

appeal, instead, he has straightaway approached this Court and filed the

present writ petition. As such, the writ petition is not maintainable and

prays this Court to dismiss the present writ petition.

9. This Court has taken note of the rival submissions made by the

learned counsel appearing for the respective parties and perused the

material on record.

10. The record reveals that respondent No.3, being the disciplinary

authority, had issued the charge memo dated 09.08.2019 alleging the

following charge:

"That Sri Syed Shamsuddin, Officer Superintendent, Home Guards Organizations, Hyderabad had demanded Rs.1,20,000/- as bribe from (4) ODHGs viz 1.A.Raj Kumar, ODHG 3770 of Octopus Telangana,

2.D.Kumar Yadav, ODHG 2774 of Octopus Telangana, 3.K.Ravi Kumar ODHG 8927 of Octopus Telangana and 4.B.Naresh Kumar, ODHG 2781 of Octopus A.P. for issue of orders for their reinstatement/taken on duty and accepted Rs.80,000/- (Rs.50,000/- on 10.02.2018 at Gokul Bar & Restaurant, Kachiguda and Rs.30,000/- on 28.02.2018 at City Civil Court at their instance through Sri S.Shiva Kumar, Jr. Asst. Home Guards Organization, Hyderabad. Thus, they have exhibited gross reprehensible misconduct lack of integrity, involving moral turpitude, tarnished the image of the Department, behaved in a manner which is unbecoming of a Government Employee and also placed their official position in an embarrassment and thereby contravened Rule 3(1) (2) (3) of TCS (Conduct) Rules, 1964."

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11. In response to the said charge memo, the petitioner submitted his

written statement of defense on 03.09.2019, denying the said charge.

However, as the disciplinary authority was not convinced with his

explanation, they proposed to conduct a detailed enquiry against the

petitioner and the co-delinquent, under Rule 20(2) of the Telangana Civil

Services (Classification, Control and Appeal) Rules, 1991, and ordered for

conducting an oral enquiry by appointing respondent No.4 as the enquiry

officer vide proceedings dated 04.11.2019. Thereafter, the enquiry officer

has issued notices to the petitioner and the co-delinquent on 27.11.2019,

06.12.2019, 30.01.2020, 12.08.2020, 08.09.2020, 19.01.2021, 29.01.2021

and 09.02.2021. In spite of acknowledging the notices dated 27.11.2019,

06.12.2019, 30.01.2020 and 19.01.2021, the petitioner himself had failed

to attend the enquiry. Therefore, the contention of the petitioner that the

enquiry was conducted without providing him a reasonable opportunity to

defend his case, amounting to violation of principles of natural justice,

cannot be countenanced. It is evident from the record that the enquiry

report was supplied to the petitioner and on acknowledging the same, the

petitioner submitted his further representation on 07.08.2021. From the

above, it is clear that the petitioner was given ample opportunity of hearing

before passing the impugned order of dismissal from service, and the

petitioner himself failed to avail the said opportunity provided by the

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respondents in accordance with rules. As such, it is held that there is no

violation of principles of natural justice on the part of the respondents in

passing the impugned order dated 19.02.2022.

12. The record further discloses that despite giving ample opportunity to

the petitioner for defending his case, he failed to appear before the enquiry

officer, as such, an exparte oral enquiry was conducted and enquiry officer

concluded the enquiry holding the charge leveled against the petitioner as

proved. Basing on the said enquiry report, the major penalty of dismissal

from service was imposed on the petitioner vide impugned order dated

19.02.2022. Further, as per Rule 35 of the TCS (CC&A) Rules, the

petitioner had the remedy of preferring an appeal/revision petition before

the appellate authority i.e., Director General of Police, Hyderabad.

However, he failed to exhaust the said remedy and approached this Court

by way of filing the present writ petition.

13. In Whirlpool Corpn. v. Registrar of Trade Marks 6, the Hon'ble Apex

Court has held as under:

The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the

(1998) 8 SCC 1

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enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

A Constitution Bench of the Hon'ble Supreme Court in A. V. Venkateswaran, Collector of Customs. Bombay v. Ramchand Sobhraj Wadhwani and Anr., (AIR 1961 SC 1506) held as under:

"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".

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Another Constitution Bench of the Hon'ble Supreme Court in the decision reported in Calcutta Discount co. Ltd. v. Income Tax Officer Companies Distt, (AIR 1961 SC 372) observed as under:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction Under Section 34 I.T. Act".

14. Furthermore, in M/s. Srini Pharmaceuticals Pvt. Ltd. v. Union of

India 7, a Division Bench of this Court has specifically held that the writ

jurisdiction of a High Court under Article 226 of the Constitution of India

cannot be invoked if there is an efficacious alternative remedy available to

the aggrieved party. However, it was also held that existence of an

alternative remedy is not an absolute bar on the power of the writ

jurisdiction of a High Court under Article 226 of the Constitution of India

and the said power is to be invoked only in exceptional cases and

extraordinary circumstances. Since the petitioner herein has failed to

make out a case of exceptional circumstances, this Court declines to

invoke its writ jurisdiction under Article 226 of the Constitution of India.

As such, the judgments relied on the by learned Senior Counsel for the