Telangana High Court
D. Ramachander, vs The State Of Telangana on 14 June, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.14373 of 2023
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is
filed seeking the following relief:
"...to issue a direction, order or writ more particularly one in the
nature of Certiorari
a. Call for all the relevant and connected records relating to G.O. Ms. No. 14,
School Education (Vigilance), dated 12.4.2023 of the 1st Respondent and
quash or set aside the same holding it to be arbitrary, illegal, lacking in
jurisdiction, unjust, violative of principles of law and violative of Articles
14 and 16 of the Constitution of India;
b. Consequently, direct that the Petitioner is entitled to all the benefits
including seniority and monetary benefits that flow from out of setting
aside G.O. Ms. No. 14, School Education (Vigilance), dated 12.4.2023 of
the 1st Respondent including the release of annual grade increments,
revision of pay scales in 2005 and 2010 and special grade increments
together with interest with quarterly rests from the date on which they
become due and payable till the actual date of payment..."
2. Heard Sri Goda Siva, learned Senior Counsel, representing Ms. Goda
Ramalakshmi, learned counsel for the petitioner, and learned Government
Pleader for Services, appearing on behalf of respondent Nos.1 and 2.
3. Learned Senior Counsel for the petitioner submits that the petitioner
was appointed as a Junior Stenographer in the office of respondent No.2 in
1992 after completing his intermediate, through the erstwhile Andhra
Pradesh State Public Service Commission. Thereafter, he was promoted as a
Senior Assistant on 01.01.2007, and while working as such, a complaint
was filed by one of the employees alleging that the petitioner has produced a
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fake degree certificate to get advancement increments and promotion to the
post of Senior Assistant. As a result, a charge memo was issued to him on
08.05.2007, and he was suspended from duty on 05.05.2008. Later, he was
reinstated into service on 03.03.2009. Further, on the very same subject
matter, a criminal case was registered against him for the offences
punishable under Sections 467, 471 and 420 of the Indian Penal Code,
1860, and the same came to be numbered as C.C.No.1023 of 2008 on the
file of the learned VI Additional Chief Metropolitan Magistrate, Hyderabad,
and after trial, the said case ended in acquittal vide judgment dated
03.08.2010. Since the allegations in the charge memo dated 08.05.2007
and the criminal case were one and the same, the Disciplinary Authority
dropped further action on the charge memo. However, respondent No.2
issued another charge memo dated 25.02.2010 reiterating the very same
allegations as the previous charge memo dated 08.05.2007. Assailing the
same, the petitioner filed O.A.No.1421 of 2014 before the erstwhile Andhra
Pradesh Administrative Tribunal and the Tribunal, vide order dated
10.03.2015, set aside the charge memo dated 25.02.2010, with an
observation that the respondents were not precluded from proceeding with
the enquiry following Rule 20 of A.P.C.S. (CCA) Rules. Based on this
observation, respondent No.2 issued a fresh charge memo dated 18.03.2017,
to initiate a fresh enquiry against the petitioner, for which, the petitioner
has submitted a detailed written statement stating that he cannot be
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subjected to repeated enquiries on the very same charge. Despite the
objection of the petitioner, instead of dropping further action, respondent
No.2 has appointed an Enquiry Officer and a Presenting Officer to conduct
an enquiry against the petitioner. After conducting the enquiry, the Enquiry
Officer submitted his report on 21.08.2017 holding that certain allegations
were partially proved. The said report, along with a tentative decision, was
communicated to the petitioner by respondent No.2, and thereafter, the
disciplinary authority i.e., respondent No.2 issued proceedings dated
16.09.2017 imposing a major penalty of reduction to lower time scale of pay,
grade, post or service i.e., Junior Stenographer, and the excess payments
made to him in the cadre of Senior Assistant w.e.f., 01.01.2002 were
recovered from his pay and allowances. Aggrieved by the same, the
petitioner filed W.P.No.19117 of 2019 and the same is pending adjudication
before this Court. However, honouring the earlier part of the order dated
16.09.2017, the petitioner joined duty as Junior Stenographer and
submitted the joining report on 21.09.2017.
4. Learned Senior Counsel further submits that the monetary benefits
due to the petitioner were not being released to him. As such, he filed
W.P.No.15537 of 2019 before this Court seeking to release 16 annual grade
increments and the revised pay scales of 2005 and 2010. The said Writ
Petition was disposed of vide order dated 24.03.2019, directing the
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respondents therein to consider the case of the petitioner for releasing the
said benefits by passing appropriate orders on the representations of the
petitioner dated 04.07.2014 and 11.07.2019, in accordance with law.
However, since the aforesaid order was not implemented, the petitioner was
constrained to file C.C.No.1540 of 2019, wherein, this Court was pleased to
issue notice on 15.11.2019 and directed the matter to be listed on
13.12.2019. While the matter stood thus, respondent No.1, issued Memo
No.8613/SE/Vigilance/2005 dated 29.11.2019, and acting on the same,
respondent No.2 issued proceedings No.203/Estt.1/2014 dated 09.12.2019
cancelling the penalty issued on 16.09.2017, on the ground that there has
been a direction from respondent No.1 that the penalty imposed on the
petitioner is insufficient. Questioning the legality and validity of the said
proceedings, the petitioner filed W.P.No.28123 of 2019, and this Court was
pleased to grant interim suspension of the same vide order dated
20.12.2019. While so, respondent No.2 issued a show-cause notice dated
13.12.2019 calling for an explanation from the petitioner as to why the
penalty of dismissal from service shall not be imposed upon him. The
petitioner submitted his explanation to the show-cause notice dated
13.12.2019 requesting respondent No.2 to drop further action in the matter,
in the light of the interim suspension granted by this Court. However,
exercising the power vested in it under Rule 40 of the Telangana Civil
Servants (Classification, Control and Appeal) Rules, respondent No.1 issued
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a show-cause notice vide memo No.8613/SE.Vig/2005 dated 16.01.2020
proposing to enhance the penalty that was imposed on the petitioner by
respondent No.2 vide earlier proceedings dated 16.09.2017, to that of
dismissal from service, and the petitioner was called upon to submit his
explanation. Questioning the said show-cause notice, the petitioner filed
W.P.No.1192 of 2020 and the same was disposed of by this Court vide order
dated 04.02.2020 directing the Government to objectively consider the
explanation of the petitioner without regard to paragraph 7 of the said show-
cause notice, and to take appropriate decision as warranted by law. In
response to the abovesaid show-cause notice, the petitioner submitted an
additional reply on 13.02.2020 along with his earlier reply dated 31.01.2020.
However, without considering the same and without taking into
consideration the advice of the Public Service Commission dated 29.12.2020,
respondent No.1 has issued the impugned order vide G.O.Ms.No.14, School
Education (Vigilance) Department, dated 12.04.2023 dismissing the
petitioner from service.
5. Learned Senior Counsel further contends that decision of respondent
No.1 to cancel the penalty order dated 16.09.2017 seems to be a knee-jerk
reaction to the notice that was issued in C.C.No.1540 of 2019 as the said
penalty imposed on 16.09.2017 was already acted upon and the petitioner
submitted his joining report to the reverted post on 21.09.2017 itself. Thus,
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the action of the respondents in reopening the case relating to the penalty
imposed way back in the year 2017 is lacking in its bona-fides. The entire
process was initiated only after receiving the notice in the Contempt Case,
which implies that the penalty is not for the proven misconduct. He further
contends that the decision of respondent No.1 to issue Memo dated
29.11.2019, which had the power to revise the orders passed by the
Disciplinary Authority, was not legitimate as they failed to follow the proper
procedure as contemplated under law. Furthermore, the action of
respondent No.1 in issuing the show-cause notice dated 16.01.2020 and
passing the order of dismissal amounts to violation of interim order of this
Court dated 20.12.2019 in W.P.No.28123 of 2019. Therefore, the impugned
order is passed with a malafide intention and the same is in violation of
Articles 14 and 21 of the Constitution of India and principles of natural
justice. He further submits that one Mr. AVBS Anand, Publication Assistant
in the office of respondent No.2 also submitted a certificate of graduation in
Arts in 1998, issued by B.R. Ambedkar Open University. An entry was also
made to that effect in his service book. Later, the said entry was deleted by
entry dated 13.07.2001, and the respondents had been continuing him in
service. The same indicates that the treatment of misconduct is not meted
out with uniform penalty. Therefore, learned Senior Counsel prays this
Court to allow the present writ petition by setting aside the impugned order
dated 12.04.2023.
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6. Per contra learned Government Pleader for Services submits that on
21.01.2005, the respondents have received a complaint from one
Mr. K. Ram Brahmam that the Degree certificate of the petitioner issued by
the Andhra University bearing registration No.10735, is a fake one, and
basing on the same, the petitioner got promotion to Senior Assistant and got
sanctioned advance increments. On the basis of the said complaint, a
charge memo, vide proceedings Rc.No.121/Estt.1/2005-6 dated 08.05.2007,
was issued to the petitioner framing six charges against him. In response to
the said charge memo, the petitioner has submitted his defense statement
on 25.05.2007, denying all the six charges. However, as the charges were
serious in nature, he was placed under suspension w.e.f., 05.05.2008, and
criminal action was initiated by the CB-CID and a calendar case vide
C.C.No.1023 of 2008 was filed against him. However, in pursuance of the
order of the erstwhile Andhra Pradesh Administrative Tribunal dated
16.09.2008 in O.A.No.3777 of 2008, the petitioner was reinstated into
service vide proceedings dated 02.03.2009, which was subject to outcome of
the criminal case. Thereafter, on the ground of 'benefit of doubt', the learned
VI Additional Chief Metropolitan Magistrate had acquitted the petitioner vide
judgment dated 03.08.2010, and since no appeal was also preferred against
the said acquittal order, the petitioner was continued in service. While
passing the order, the APAT gave an observation that the said order did not
preclude the respondent authorities therein from proceeding further with the
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enquiry following Rule 20 of the APCS (CC&A) Rules. As such, an enquiry
was conducted and the enquiry officer submitted his report on 21.08.2017
holding that the charges leveled against the petitioner as proved, and basing
on the said report, a major penalty of reduction to lower time scale of pay,
grade, post or service i.e., Junior Stenographer, was imposed on the
petitioner vide proceedings dated 16.09.2017. Challenging the correctness
of the said punishment order, the petitioner filed W.P.No.19117 of 2019, and
the same is pending adjudication before this Court.
7. Learned Government Pleader further submits that respondent No.1,
being the appellate authority can call for the records and based on the
gravity of charges leveled against the employees like the petitioner herein,
can impose any punishment and seek ratification in that regard. Further, as
per the direction of respondent No.1 that the penalty imposed on the
petitioner is insufficient, respondent No.2 has issued proceedings dated
09.12.2019 cancelling the earlier order of penalty dated 16.09.2017 and
further, proposing to impose the punishment of dismissal from service.
Challenging the said proceedings, the petitioner filed W.P.No.28123 of 2019,
wherein, this Court, vide interim order dated 20.12.2019 in I.A.No.1 of 2019,
granted interim suspension of the proceedings issued by respondent No.2
dated 09.12.2019, and the said writ petition is pending adjudication.
Subsequently, respondent No.1 issued a show-cause notice to the petitioner
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calling for explanation as to why the penalty of dismissal could not be
imposed on him. Challenging the same, the petitioner filed W.P.No.1192 of
2020, and the same was disposed of vide order dated 04.02.2020 directing
the Government to consider the explanation of the petitioner and pass orders
as warranted by law. In pursuance of the same, the petitioner has
submitted his explanation to the show-cause notice on 31.01.2020 that was
received on 13.02.2020, and since the said explanation of the petitioner was
not convincing, keeping in view the gravity of charges, the impugned order is
passed.
8. Learned Government Pleader further submits that a mere acquittal in
the criminal case based on the ground of benefit of doubt, cannot be a
ground to challenge the punishment order for the reason that in a criminal
case, prosecution has to prove the case beyond reasonable doubt, whereas,
in departmental proceedings, the charges have to be proved preponderance
of probabilities. Further, insofar as Mr. AVBS Anand is concerned, he was
appointed as a Publication Assistant on 02.01.1886, based on his
intermediate qualification. Later, he obtained B.A. certificate from Agra
University. However, on enquiry, it was found to be a forged one. Therefore,
his promotion basing of the degree certificate was cancelled. Subsequently,
he retired from service on 28.02.2011. As such, the contention of the
petitioner that Mr. AVBS Anand is a similarly situated person, and the
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petitioner is also entitled for the same benefit cannot be a ground for the
mistake committed by him, which is grave in nature. Hence, learned
Government Pleader for Services prays this Court to dismiss the present writ
petition as devoid of merits.
9. This Court has taken note of the rival submissions made by the
learned counsel for respective parties and perused the material available on
record.
10. Admittedly, the disciplinary authority has initiated action against the
petitioner on receipt of a complaint from one Mr. K. Rama Brahmam, and
placed the petitioner under suspension w.e.f., 05.05.2007. Subsequently, a
Charge Memo dated 08.05.2007 was issued to the petitioner and criminal
action was also initiated against him. Later, pending enquiry, the petitioner
was reinstated into service on 03.03.2009. Thereafter, vide judgment dated
03.08.2010 passed by the VI Additional Chief Metropolitan Magistrate,
Hyderabad, in C.C.No.1023 of 2008, the petitioner was acquitted from the
charges leveled against him. The record further discloses that as the
charges in the criminal case and departmental proceedings were based on
the same cause of action, the disciplinary authority has dropped further
action in pursuance of the charge memo dated 08.05.2007, and issued
another charge memo on 25.02.2010 alleging the very same charges.
Aggrieved by the same, the petitioner approached the erstwhile Andhra
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Pradesh Administrative Tribunal and filed O.A.No.1421 of 2014, which was
disposed of vide order dated 10.03.2015 and the operative portion of the said
order is extracted hereunder:
"16. Having regard to the facts and circumstances and foregoing
reasons, the impugned Charge Memo., dated 25.2.2010., is liable to
be set aside and it is hereby set aside and the respondents are not
precluded to proceed with enquiry, following Rule 20 of A.P.C.S.
(CC&A) Rules."
11. In pursuance of the said order, the respondents have issued a fresh
Charge Memo dated 18.03.2017 proposing to initiate a fresh enquiry in the
matter. Subsequently, after conducting enquiry, the enquiry officer has
submitted his report on 21.08.2017 holding some of the charges as proved
and some others as partially proved. Basing on the said report, respondent
No.2 has issued the proceedings in Rc.No.203/Estt.1/2014 dated
16.09.2017, whereby, a major punishment was imposed on the petitioner,
which reads as under:
"...major punishment of Reduction to Lower time of Scale of
Pay, grade, Post or Service, i.e. Junior Stenographer is hereby
imposed under Rule 9 (Vii) (b) of CCA Rules 1991 with effect from
01.01.2002 i.e., from the date of promotion to Senior Assistant
cadre. Any excess payment is made with regard to the award of
promotion and sanction of Degree allowances shall be recovered
from the pay and allowances of the incumbent."
12. Aggrieved by the same, the petitioner filed W.P.No.19117 of 2019,
which is pending adjudication before this Court. Here, it is pertinent to note
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that in pursuance of the said punishment order, the petitioner has already
joined duty in the lower cadre i.e., Junior Stenographer, on 21.09.2017.
Hence, it can be construed that the order of punishment dated 16.09.2017
was implemented by the respondents and the aforesaid W.P. was filed by the
petitioner after a period of almost two years. Thereafter, the petitioner
submitted his representation to the respondent authorities on 04.07.2019
and 11.07.2019 requesting to grant 16 annual grade increments. However,
the same were not considered by the respondents. Therefore, he was
constrained to file W.P.No.15537 of 2019, which was disposed of vide order
dated 24.07.2019 directing the respondents therein to consider the case of
the petitioner for grant of 16 annual increments, by passing appropriate
orders on his representations. However, since no action was taken thereon,
the petitioner decided to file a contempt case vide C.C.No.1540 of 2019,
which was closed vide order dated 31.12.2020.
13. The record further discloses that after two years, respondent No.2
issued proceedings No.203/Estt.1/2014 dated 09.12.2019 cancelling the
earlier order of punishment dated 16.09.2017, and held that the quantum of
punishment imposed therein is not commensurate with the proven charges.
Here, it is pertinent to not that the punishment imposed on 16.09.2017 was
already acted upon and the same is the subject matter of W.P.No.19117 of
2019, which is pending for adjudication. Further, challenging the said
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cancellation proceedings dated 09.12.2019, the petitioner filed
W.P.No.28123 of 2019, wherein, this Court passed an interim order in
I.A.No.1 of 2019 dated 20.12.2019 granting interim suspension of the
proceedings dated 09.12.2019 and the said writ petition is pending
adjudication. As such, it is clear that the interim suspension dated
20.12.2019 is still in force as on today.
14. Furthermore, the record discloses that in addition to the proceedings
dated 09.12.2019, respondent No.2 issued a show-cause notice to the
petitioner vide proceedings No.203/Estt.I/2014 dated 13.12.2019, calling for
an explanation as to why a major penalty of dismissal from service shall not
be imposed upon him for the proven charges. However, no further action
was taken thereafter. It can, therefore, be construed that in view of the
subsistence of the interim suspension granted by this Court, respondent
No.2 had not chosen to proceed any further in the matter. However,
respondent No.1 issued another show-cause notice to the petitioner vide
Memo No.8613/S.E.Vig/2005 dated 16.01.2020, calling for his explanation
as to why the earlier punishment of reversion to lower post shall not be
enhanced to dismissal from service. In response to the same, the petitioner
submitted his explanation on 03.11.2020. Thereafter, he filed another writ
petition vide W.P.No.1192 of 2020, which was disposed of vide order dated
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04.02.2020, and the operative portion of the said order is extracted
hereunder:
"12. In the circumstances, writ petition is disposed of
directing the respondent Government to objectively consider the
explanation that may be offered by the petitioner in response to the
show cause notice. Without regard to mentioning of punishment
that is proposed and G.O.Ms.No.2 dated 4.1.1990 in the show
cause notice, Government shall consider the explanation objectively
and with open mind and without regard to what is mentioned in
paragraph 7 of the show cause notice and take appropriate decision
as warranted by law."
15. In pursuance of the above order, the petitioner has submitted another
explanation on 13.02.2020. Without considering the same objectively as
directed by this Court, respondent No.1 issued the impugned order vide
G.O.Ms.No.14, School Education (Vigilance) Department, dated 12.04.2023,
imposing the punishment of dismissal from service.
16. From the above, it is clear that the present impugned order of
dismissal from service was issued consequent to the show-cause notice
dated 16.01.2020. In the said show-cause notice, reference was made to
G.O.Ms.No.2, General Administration (Services-C) Department, 04.01.1990,
which outlines the policy for imposing a punishment of dismissal from
service. As per Rule 9(x) of the Telangana Civil Services (Classification,
Control and Appeal) Rules, 1991, the punishment of dismissal from service
has to be imposed only in the proven cases of misappropriation, bribery,
bigamy, corruption, moral turpitude, forgery and outraging the modesty of
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women. Admittedly, in the case on hand, the primary allegation against the
petitioner is that he produced a fake degree certification to secure promotion
as a Senior Assistant and received the advance increments. As such, the
case of the petitioner does not fall under the provisio to Rule 9 of the TCS
(CC&A) Rules, 1991, therefore, invocation of G.O.Ms.No.2 dated 04.01.1990
and issuance of the impugned order dated 12.04.2023 is bad in law.
17. In the impugned order, it is specifically observed that "the employee is
liable to be granted the maximum punishment so as to serve as a deterrent
to all others to not to indulge in such activities. Therefore the earlier
decision in imposition of penalty i.e., dismissal from service holds good."
However, it is worth noting that there is no legal provision that mandates
such an objective in the imposition of a penalty or punishment on an
employee. Admittedly, the petitioner was already subjected to the
punishment of reversion vide order dated 16.09.2017, which is the subject
matter of W.P.No.19117 of 2019. Moreover, honouring the said punishment
order, the petitioner had also joined in the reverted post i.e., Junior
Stenographer, on 21.09.2017. As such, this Court does not find reason as
to why respondent No.1 decided to enhance the punishment to that of
dismissal from service.
18. Further, it is noteworthy that Mr. AVBS Anand who worked as a
Publication Assistant of the office of respondent No.2, had also submitted a
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fake certificate of Graduation, but he was continued in service till he
attained the age of superannuation. In view of the same, this Court is of the
opinion that the respondents should have initiated disciplinary proceedings
against Mr. AVBS Anand by imposing a major penalty to serve as a deterrent
to all other employees. However, no action was taken against the said
employee. But in the case of the petitioner herein, the punishment of
dismissal was imposed upon him with a malafide intention and taking such
an action against the petitioner with the primary objective of setting an
example to other employees is highly untenable. As such, this action of the
respondents also amounts to discrimination.
19. The record, more particularly, letter No.104/RT/TSPSC/2020 dated
29.12.2020, reveals that the Telangana State Public Service Commission had
also expressed its view that the petitioner may be reverted to a lower post
and be refrained from handling any masters related to services.
Additionally, it has been suggested that the petitioner should not be
considered for promotion for a period of seven years even after acquiring the
required qualifications. It is evident from the aforementioned letter that the
TSPSC was satisfied with the decision to revert the petitioner to a lower post.
20. In view of the abovemade discussion, this Court is of the opinion that
the impugned order is passed with a malafide intention only to harass the
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petitioner. As such, this Court deems it fit and proper to set aside the
impugned order.
21. Accordingly, the Writ Petition is allowed. The impugned order vide
G.O.Ms.No.14, School Education (Vigilance) Department, dated 12.04.2023
is hereby set aside and the respondents are directed to pay all the
consequential benefits to the petitioner as per his entitlement.
Miscellaneous applications, if any, pending in this writ petition, shall
stand closed. No costs.
___________________________
PULLA KARTHIK, J
Date: 14.06.2024.
GSP
