Telangana High Court

Smt. K Anusha vs The State Of Telangana on 3 May, 2024

 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

            WRIT PETITION No.40466 of 2022

ORDER:

This Writ Petition is filed seeking a writ or direction

more particularly one in the nature of Writ of Mandamus

declaring the impugned proceedings passed by

respondent No.5 vide proceedings No.E1/SV/2712/2015

dated 27.09.2022 dismissing the petitioner from service

under Rule 9(X) of TSCS (CC&A) Rules, 1991 on the

ground that it is in violation of Rules 20 and 21 of TSCS

(CCA) Rules 1991 as without jurisdiction and in violation

of principles of natural justice and also in violation of

orders passed by the Hon'ble High Court in

W.P.No.34933 of 2022 dated 06.09.2022 and to set aside

the same and to further direct respondent No.3 to

conduct enquiry afresh and to pass such other order or

orders.

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

petition are that the petitioner was appointed as a Junior

Assistant in respondent No.5-office. While she was

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working in the office of the Registrar, Karimnagar during

the period of 07.10.2013 to 28.03.2016, a charge memo

dated 29.07.2016 was issued to the petitioner and also

to the Joint Sub Registrar-I and one Sharoff pursuant to

the report of the Committee dated 28.03.2016. Around

five charges were levelled against the petitioner and the

sum and substance of the charges is that the petitioner

and others sold away certain stamp papers and have

deposited part of the sale proceeds into the Registration

account and the balance has been misappropriated by

them. Simultaneously, a criminal complaint was also

lodged on the file of Station House Officer, Karimnagar-I

Town Police Station, vide Crime No.129 of 2016 dated

28.03.2016 for the offences punishable under Section

420 and 409 of IPC and a charge sheet was also filed and

the case was registered as C.C.No.200 of 2017. As the

criminal case was pending, the petitioner submitted an

explanation on 18.08.2016 to the charge memo dated

29.07.2016 stating that since the criminal case is

pending, she will file her explanation after adjudication

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of the same as the charges levelled against the petitioner

in the charge memo as well as the criminal case are one

and the same. Further, it was also stated that

respondent No.2 has not filed any document leave alone

the report dated 28.03.2016, on the basis of which the

charge memo was issued.

3. It is stated that respondent No.4, thereafter, was

appointed as an Enquiry Officer to conduct enquiry in

respect of the charges levelled against the petitioner and

others vide proceedings of respondent No.3 dated

29.07.2016, the Sub-Registrar's Market value and Audit,

Adilabad was appointed as a Presenting Officer. It is

stated that on 07.01.2017, the petitioner was admitted to

one Shivananda Maternity Hospital at Karimnagar for

delivery and got operated and she had given birth to one

female child on 08.01.2017 and the petitioner was

discharged from hospital on 12.01.2017. Therefore,

notice for enquiry to be conducted on 24.01.2017 was

not served on the petitioner. Subsequently, the

suspension was revoked by respondent No.5 by orders

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dated 20.04.2018. In the meantime, the petitioner

received a memo dated 04.10.2018 issued by respondent

No.3 calling for petitioner's objections, if any, to the

enquiry report and also the defence statement within 15

days from the date of receipt the report while enclosing a

copy of the enquiry report dated 31.01.2017 along with

depositions. After going through the enquiry report, the

petitioner observed that enquiry report held that the

charges against the Joint Sub-Registrar-I and Sharoff are

held as not proved but it has held that the charges

against the petitioner only are proved. Therefore, the

petitioner submitted a detailed representation requesting

for re-conduct of enquiry. However, the same was not

considered by the respondents and a show-cause notice

was issued to the petitioner. Challenging the same, the

petitioner filed a writ petition i.e., W.P.No.34933 of 2022

challenging the enquiry report dated 31.01.2017 and

also sought a direction to respondent No.3 to consider

the representation/explanation dated 29.10.2018 for

conducting a fresh enquiry into the charges and also

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sought a direction to respondent Nos.1 and 2 not to act

upon enquiry report dated 31.01.2017. It is submitted

that the High Court was pleased to dispose of the writ

petition directing the respondents not to take any action

on basis of the enquiry report dated 31.01.2017 till a

decision is taken on the representation of the petitioner

dated 29.10.2018 and the said decision is communicated

to the petitioner.

4. Pursuant to the said order, the petitioner submitted

another representation dated 14.09.2022. However,

respondent No.3 has issued a memo dated 22.09.2022

informing the petitioner that her representation dated

29.10.2018 was already taken into consideration before

the proposals were submitted to the Government vide

letter dated 26.02.2019. Thereafter, respondent No.5

passed the impugned order dismissing the petitioner

from service under Rule 9(X) of TSCS (CCA) Rules

referring to the Government Memo dated 28.02.2022.

Challenging the same, the present writ petition is filed

stating that the impugned order is on the basis of an

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enquiry, which was conducted ex-parte against the

petitioner i.e., in violation of principles of natural justice

and also in violation of directions of this Court dated

06.09.2022 in W.P.No.34933 of 2022.

5. This Court vide orders dated 03.11.2022 had

granted interim suspension of the impugned proceedings

dated 27.09.2022 issued by respondent No.5 till

08.12.2022 and the same has been extended from time

to time.

6. The respondents have filed counter affidavit along

with stay vacate petition.

7. Learned counsel for the petitioner while reiterating

the submissions made in the writ affidavit submitted

that this Court in W.P.No.34933 of 2022 had directed

the respondents not to take any action on the basis of

the enquiry report dated 31.01.2017 till the

representation of the petitioner dated 14.09.2022 has

been considered and has been disposed of and the said

decision has been communicated to the petitioner. It is

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submitted that the respondents have not passed any

order on the representation of the petitioner but instead

have only stated that the same was taken into

consideration before sending the proposals to the

Government for imposing the punishment on the

petitioner. Learned counsel for the petitioner has also

stated that the enquiry was conducted when the

petitioner was on maternity leave and the respondents

were well aware of the same but have conducted an

enquiry during the said period and have submitted the

enquiry report on 31.01.2017 and therefore the ex-parte

enquiry report cannot be relied upon to impose the

punishment of removal from service against the

petitioner. In support of his contentions, learned

counsel for the petitioner has also placed reliance upon

the judgment of the Hon'ble Supreme Court in the case

of Aureliano Fernandes v. State of Goa and ors 1 and

the judgment of this Court in the case of B. Raja Gopal

1 AIR 2023 SC 2485

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v. General Manager, Nizam Sugar Factory Ltd. and

another 2.

8. Learned Government Pleader for Services-II, on the

other hand, supported the impugned orders and

submitted that the representation of the petitioner was

taken into consideration before recommending the

punishment to the respondents and therefore, there was

no violation of the directions of this Court. Learned

Government Pleader further submitted that there is no

violation of principles of natural justice since the notice

of enquiry was sent to the residence of the petitioner but

the same was refused by her husband and he had

threatened that a case would be booked against the

messenger. Therefore, the same has been stated and

recorded in the enquiry report. Hence according to him,

the enquiry has been properly conducted and the

punishment has been imposed. Learned Government

Pleader relied upon the judgment of the Hon'ble Supreme

Court in the cases of Union of India and others v.

2 1996 (2) ALD 274

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Ex.Constable Ram Karan 3 and B.C.Chaturvedi v.

Union of India and others 4 in support of his

contentions that imposition of punishment is the

prerogative of the disciplinary authority and the Courts

should not interfere with the same.

9. Having regard to the rival contentions and the

material available on record, this Court finds that the

allegations against the petitioner and others were serious

and therefore the disciplinary proceedings were initiated.

However, at the time of conducting enquiry, the

petitioner was under maternity leave and it is a situation

which would be evident to the respondents. It is not

understandable as to why and how the Enquiry Officer

has decided to issue notice for enquiry during period

when the petitioner was on maternity leave and in

hospital. Admittedly, the notice of the enquiry has not

been served on the petitioner. Even if the petitioner had

refused to take the notice, there were alternate modes of

3 (2022) 1 SCC 373 4 (1995) 6 SCC 749

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service of notice prescribed under Rule 42 of TSCS (CCA)

Rules, 1991 on the petitioner. Admittedly, no such

modes have been adopted by the respondents for serving

notice on the petitioner and an enquiry was evidently

conducted on 24.01.2017 ex-parte the petitioner and the

enquiry report was also submitted on 31.01.2017. It is

also not understandable as to why the enquiry report

dated 31.01.2017 was not supplied to the petitioner till

October, 2018 when it was issued along with the show

cause notice. Further, where this Court in

W.P.No.34933 of 2022 vide orders dated 06.09.2022 has

directed the respondents to consider the representation

and communicate its decision to the petitioner and not to

take action till such time, the respondents have not done

so but have wantonly intimated that the same has been

considered before sending the proposals of punishment

to the Government. This is in clear and blatant

disregard of the directions of this Court. The impugned

order of dismissal from service, which is on the basis of

finding of enquiry report, is clearly in violation of

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principles of natural justice. Hon'ble Supreme Court in

the case of Aureliano Fernandes (cited supra 1) has

considered the applicability of principles of natural

justice to disciplinary proceedings at Paras No.31 and 35

and the same are as follows:

"(c) ARTICLE 311 : A MANIFESTATION OF THE PRINCIPLES

OF NATURAL JUSTICE

31. This Court has held that in matters of dismissal, removal

or reduction in rank of public servants, Article 311 of the

Constitution is a manifestation of the essential principles of

natural justice. It imposes a duty on the Government to

ensure that any such decision against the public servant is

preceded by an inquiry that contemplates an opportunity of

hearing to be granted to the public servant, who is also

entitled to make a representation against such a decision.

Article 311 reads as under:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in

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which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply--

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

35. Article 14, often described as the 'Constitutional Guardian' of the principles of natural justice, expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the

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laws. Article 14 provides an express guarantee of equality before the law to all persons and extends a protection to them against discrimination by any law. Article 13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India, the force of law. Thus, principles of natural justice guaranteed under Article 14, prohibit a decision-making adjudicatory authority from taking any arbitrary action, be it substantive or procedural in nature. These principles of natural justice, that are a natural law, have evolved over a period of time and been continuously refined through the process of expansive judicial interpretation."

10. Similarly the coordinate bench of this Court in the

case of B.Raja Gopal (cited supra 2) has considered the

applicability of principles of natural justice to the

disciplinary proceedings and has held as under:

"12.The rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power. The court presumes that the requirements are implied in the absence or indication to the contrary in the Act, confirming the power or in the circumstances in which the Act is to be applied.

13. The rules requiring impartial adjudications and fair hearing can be traced back to medieval precedents, and indeed, they were not unknown in the ancient world. These principles were regarded as part of immoletale order of things, so that in theory even the power of legislature could not alter them. Chief Justice Coke in Dr.Bonham's case (8Co.rep. 113b at 118 a extracted from Wade's

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Administrative Law) said that Court could declare an Act of parliament void if it made a man Judge in his own case, or otherwise "against common right and reason"

14. Natural Justice is summed up as fair play in action. The principle was applied with great restraint till 1963 until land- mark judgment was rendered by House of Lords in Ridge v. Baldwin (1) (1964) AC 40. The House Lords made it clear that duty to act judicially arose directly from the power of an agency to 'determine questions' affecting the rights."

11. The judgments relied upon by the learned

Government Pleader are in respect of punishment

imposed by the disciplinary proceedings whether can be

interfered by the courts and are not applicable to this

case as this is a case of violation of principles of natural

justice and not about the quantum and adequacy of

punishment.

12. In view of the judgments cited supra in respect of

violation of principles of natural justice, this Court is of

the opinion that the impugned order cannot be

sustained. Therefore, the impugned order is set aside

and the respondents are directed to reinstate the