Telangana High Court
Mohd. Khaleel Ahmed, Hyderabad vs Prl Secy, Transport, Roads And ... on 21 September, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION NO.36922 of 2017
ORDER :
This writ petition is filed to quash Charge Memo dated
31.03.2011 and the proceedings dated 23.09.2017 and declare the
same as contrary to the Rule 9(2)(b)(I) & (II) of the A.P.Revised
Pension Rules, 1980 (for short, 'the Rules 1980').
2. Heard Sri P.Amrender, learned counsel for petitioner,
learned Government Pleader for Transport appearing for
respondent Nos.1 and 2.
3. The brief facts leading to filing of the present writ petition
are that petitioner was directly recruited and appointed as
Assistant Motor Vehicle Inspector in January, 1984 and was
allotted to Zone-VI of the united State of Andhra Pradesh and
was promoted as Motor Vehicles Inspector (MVI) on 11.02.1999
and retired from service on attaining the age of superannuation
on 31.05.2012. While so, when the petitioner was working as MVI
at RTA Check-post, Zaheerabad, a surprise check was conducted
by the ACB officials on the intervening night of 27/28.08.2009
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and found that the petitioner along with one private person, by
name, Mohd. Haneef, indulging corrupt practices and collecting
bribes and further petitioner could not render full and true
account of the cash of Rs.40,770/- found in his possession at the
time of surprise check; that petitioner was asked to submit factual
report and accordingly, he had submitted factual report on
06.05.2010. Thereafter, petitioner was issued charge memo dated
24.06.2010 proposing to hold an inquiry against the petitioner and
the petitioner was also served with Annexures -I, II, III & IV.
4. It is contended that on the date of retirement, petitioner
was served with proceedings R.No.1044/C3/2008-8, dated
22.11.2011 stating that his retirement is subject to the condition
that the retirement shall be without prejudice to the action to be
taken in the ACB case pending against him in R.No.2297/V3/
2011. After retirement, petitioner submitted representation dated
18.06.2012 to the respondent authorities to furnish copies of the
alleged ACB cases. However, respondents did not furnish the
documents sought by the petitioner. Petitioner once again made
representation to the Transport Commissioner on 07.12.2013
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requesting to furnish charge memo i.e., R.No.2297/V3/V2/2011.
Thereafter, the Transport Commissioner furnished the charge
memo No.2297/V3/2011 dated 31.03.2011 on 04.01.2017, to which
petitioner submitted a detailed representation on 21.01.2017
stating that he retired from service on 31.05.2012 and the charge
memo dated 31.03.2011 was communicated for the first time on
04.01.2017 i.e., after more than four years from the date of his
retirement. Petitioner submitted representations dated 21.01.2017
and 06.02.2017 requesting the respondents to drop the
proceedings. However, there was no response. The respondent
No.1 vide Memo dated 22.02.2017 requested the 2nd respondent to
furnish his remarks on the representation of the petitioner.
However, the 2nd respondent had issued proceedings vide
R.No.2297/V3/V2/2011, dated 23.09.2017 appointing the 3rd
respondent as Enquiry Officer and directed him to complete the
enquiry within two months from the date of receipt of the order
without reference to the Memo dated 22.02.2017. Therefore,
aggrieved by the communication of the respondents, the present
writ petition is filed.
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5. Learned counsel for petitioner had contended that charge
memo dated 31.03.2011 issued to the petitioner relate back to the
event that has taken place in 2010. Petitioner retired from service
on 31.05.2012 and the charge memo dated 31.03.2011 was first
communicated to the petitioner on 04.01.2017, which is beyond
four years after his retirement. It is further contended that Rule
9(2)(b) of the Rules, 1980, specifically prohibits any authority
against the State Government to proceed against retired
employee and the charge memo relates to the event, which took
place more than 4 years back.
6. Learned counsel for petitioner has specifically referred to
Rule 9(2)(b) 1 of the Rules, 1980, under which there is a specific
prohibition on the 2nd respondent to proceed against retired
employee after four long years.
7. It is further contended that after long gap of seven years,
petitioner is now being forced to participate in the enquiry and
entire proceedings of the respondents suffer from lack of
Rule 9. Right of Government to withhold or withdraw pension :-
(2) (a) xxx
(b) The Departmental proceedings, if not instituted while the Government servant was in
service, whether before his retirement or during his re-employment:
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jurisdiction, that despite repeated requests of the petitioner,
respondents have not furnished a copy of the charge memo dated
31.03.2011 and the same was communicated to the petitioner for
the first time only on 04.01.2017. Therefore, at this stage,
petitioner cannot be subject to unnecessary humiliation and he
cannot be subject to participate in the enquiry.
8. In support of his contention that inordinate delay in
initiating departmental enquiry cannot be permitted and
therefore, the same has to be quashed, learned counsel for
petitioner relied upon the following decisions:
i) State of A.P., vs. N.Radhakishan 2;
ii) P.V.Mahadevan v. MD, T.N.Housing Board 3
9. Learned Government Pleader for respondents had
contended that while petitioner was working as MVI at
Zaheerabad Check-post, had involved in irregularity and
demanding and accepting bribes from the crew of the transport
vehicles, which are passing through the said check-post. The
officials of the ACB have conducted surprise check on the
(1998) 4 SCC 154
(2005) 6 SCC 636
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intervening night of 28/29.04.2010 and found unaccounted
money in possession of the petitioner. He further contended that
petitioner was aware of the charge memo pending against him
and in the pension papers forwarded by the RTO, Nalgonda, it
was clearly mentioned that there is an ACB case pending against
him and therefore, petitioner was accorded permission to retire
from service without prejudice to the action to be taken in the
ACB case pending against him in R.No.2297/V3/V2/2011 and
any other disciplinary cases pending/contemplated against him.
That petitioner was granted provisional pension vide proceedings
dated 01.03.2013. Further, petitioner did not approach the
respondent authorities with regard non-receipt of charge memo
in ACB case in R.No.2297/V3/V2/2011. It is specifically
contended that charge memo was communicated to the petitioner
vide office endorsement No.4208, dated 10.01.2013, which was
mentioned in Letter dated 08.11.2017 of the Deputy Transport
Commissioner.
10. It is further contended that Memo dated 08.11.2013 was
communicated to the petitioner vide endorsement No.3164/A1/
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2013, dated 16.11.2013 and obtained acknowledgment of the
petitioner. However, said copy was not placed on record. It is
further contended that petitioner was involved in another case in
R.No.31513151/V3/V2/2009 while working in Transport Check-
post at Zaheerabad. It is finally contended that there are no merits
in the writ petition and the same is liable to be dismissed.
11. It is a specific contention of the petitioner that he has not
received copy of the charge memo dated 31.03.2011 and whereas,
respondents contended that charge memo was served on the
petitioner on 10.01.2013. Therefore, the crucial issue for
consideration is whether the charge memo was communicated to
the petitioner or not. It is relevant to refer memo dated 08.11.2013
of Transport Commissioner of A.P., wherein it was mentioned
that surprise check was conducted by the officials of ACB on the
intervening night of 28/29.04.2010 at RTA check-post at
Zaheeabad and ?.,charges were framed against the petitioner
herein as well as one Malleshwar, Transport Constable vide
charge memo dated 31.03.2011. The RTO, Nalgonda was
requested to send a dated acknowledgment or explanation if any
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submitted by the petitioner. However, it appears that no
document evidencing service of charge memo on the petitioner
has been communicated to the Transport Commissioner.
Therefore, the contention of the respondents that charge memo
was served on the petitioner on 10.01.2013 is not evidenced by
any document and respondents failed to place any material to
that effect. Therefore, in the absence of proof of service of charge
memo and acknowledgement by the petitioner, it has to be held
that charge memo dated 31.03.2011 was not communicated to the
petitioner on 10.01.2013 as has been contended by the
respondents.
12. Learned counsel for petitioner next contended that
disciplinary proceedings are liable to be set aside. He further
contended that appointment of 3rd respondent as Inquiry Officer
by the 2nd respondent on 23.09.2017 is contrary to Rule 9(2)(b) of
the Rules, 1980 and admittedly, the Inquiry Officer was
appointed after four years seven months from the date of
retirement of the petitioner.
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13. Learned counsel further contended that as per
G.O.Ms.No.679 General Administration (Services-C) Department
dated 01.11.2008, disciplinary proceedings pending against an
employee have to be completed expeditiously and further
instructions were also issued for expeditious completion of the
inquiries and the same shall be completed within a period of
three months in case of simple cases and six months in case of
complicated cases.
14. Learned Government Pleader for respondents would
submit that the decisions relied upon by the learned counsel for
petitioner are not applicable to the facts of present case as those
judgments are rendered in different facts, circumstances.
15. In N.Radhakishan (supra), the Hon'ble Apex Court held as
under:
"19. It is not possible to lay down any predetermined
principles applicable to all cases and in all situations where
there is delay in concluding the disciplinary proceedings.
Whether on that ground the disciplinary proceedings are to be
terminated each case has to be examined on the facts and
circumstances in that case. The essence of the matter is that the
court has to take into consideration all the relevant factors and
to balance and weigh them to determine if it is in the interest
of clean and honest administration that the disciplinary
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proceedings should be allowed to terminate after delay
particularly when the delay is abnormal and there is no
explanation for the delay. The delinquent employee has a
right that disciplinary proceedings against him are concluded
expeditiously and he is not made to undergo mental agony
and also monetary loss when these are unnecessarily
prolonged without any fault on his part in delaying the
proceedings. In considering whether the delay has vitiated the
disciplinary proceedings the court has to consider the nature
of charge, its complexity and on what account the delay has
occurred. If the delay is unexplained prejudice to the
delinquent employee is writ large on the face of it. It could
also be seen as to how much the disciplinary authority is
serious in pursuing the charges against its employee. It is the
basic principle of administrative justice that an officer
entrusted with a particular job has to perform his duties
honestly, efficiently and in accordance with the rules. If he
deviates from this path he is to suffer a penalty prescribed.
Normally, disciplinary proceedings should be allowed to take
their course as per relevant rules but then delay defeats
justice. Delay causes prejudice to the charged officer unless it
can be shown that he is to blame for the delay or when there is
proper explanation for the delay in conducting the
disciplinary proceedings. Ultimately, the court is to balance
these two diverse considerations.
20. In the present case we find that without any reference to
records merely on the report of the Director General, Anti-
Corruption Bureau, charges were framed against the
respondent and ten others, all in verbatim and without
particularising the role played by each of the officers charged.
There were four charges against the respondent. With three of
them he was not concerned. He offered explanation regarding
the fourth charge but the disciplinary authority did not
examine the same nor did it choose to appoint any enquiry
officer even assuming that action was validly being initiated
under the 1991 Rules. There is no explanation whatsoever for delay
in concluding the enquiry proceedings all these years. The case
depended on records of the Department only and the Director
General, Anti-Corruption Bureau had pointed out that no witnesses
had been examined before he gave his report. The Enquiry Officers
who had been appointed one after the other had just to examine the
records to see if the alleged deviations and constructions were illegal
and unauthorised and then as to who was responsible for condoning
or approving the same against the bye-laws. It is nobody's case that
the respondent at any stage tried to obstruct or delay the enquiry
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proceedings. The Tribunal rightly did not accept the explanations of
the State as to why delay occurred. In fact there was hardly any
explanation worth consideration. In the circumstances the Tribunal
was justified in quashing the charge memo dated 31-7-1995 and
directing the State to promote the respondent as per recommendation
of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. The
Tribunal rightly did not quash these two latter memos."
16. In P.V.Mahadevan (supra), the Hon'ble Apex Court held
as under:
"11. Under the circumstances, we are of the opinion that
allowing the respondent to proceed further with the
departmental proceedings at this distance of time will be very
prejudicial to the appellant. Keeping a higher government
official under charges of corruption and disputed integrity
would cause unbearable mental agony and distress to the
officer concerned. The protracted disciplinary enquiry against
a government employee should, therefore, be avoided not
only in the interests of the government employee but in public
interest and also in the interests of inspiring confidence in the
minds of the government employees. At this stage, it is
necessary to draw the curtain and to put an end to the
enquiry. The appellant had already suffered enough and more
on account of the disciplinary proceedings. As a matter of fact,
the mental agony and sufferings of the appellant due to the
protracted disciplinary proceedings would be much more
than the punishment. For the mistakes committed by the
department in the procedure for initiating the disciplinary
proceedings, the appellant should not be made to suffer.
12. We, therefore, have no hesitation to quash the charge
memo issued against the appellant. The appeal is allowed. The
appellant will be entitled to all the retiral benefits in
accordance with law. The retiral benefits shall be disbursed
within three months from this date. No costs."
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17. In D.Srinivas v. Govt. of A.P., Transport, Roads and
Buildings (Vig.I) Dept., and others 4, the Division Bench of
erstwhile High Court of A.P., held as under:
"18. Coming to the case on hand, it is to be noticed that the
charge relates to the year 1998 and no steps were taken
immediately on the subject-matter of the charge. Only
pursuant to the complaint lodged against the Executive
Engineer (Electrical) alone before the Upa-Lokayuktha, A.P.,
and basing on the ex parte preliminary enquiry report,
proceedings were initiated which were later dropped.
Thereafter, regular departmental enquiry is conducted and on
one ground or the other the enquiry officers were changed,
which is admitted in the counter-affidavit, stating that delay is
only on account of administrative reasons. Having regard to
the nature of charge and the plea of delay, we are of the
considered view that there is abnormal and unexplained delay
on the part of the disciplinary authority in completing the
enquiry and imposing punishment. Such an action is contrary
to the judgments referred above apart from the executive
instructions issued by the Government itself. Even for the said
reason, the impugned order is liable to be set aside. For the
foregoing reasons, the writ petition is allowed and the order
dated 02.12.2011 passed in O.A. No. 8278 of 2011 and, further,
order dated 04.12.2012 passed in Rev. M.A. No. 3802 of 2011,
by the A.P. Administrative Tribunal, Hyderabad, is set aside.
Consequently, the final order imposing punishment on the
petitioner vide G.O. Rt. No. 734, Transport, Roads & Buildings
(Vig.I) Department dated 28.07.2011 is quashed and it is held
that the petitioner is entitled to all the consequential benefits.
No order as to costs."
18. In State of Telangana and others vs. L.Galanna and
another 5, the Division Bench of erstwhile High Court of A.P.,
held as under:
2013 (4) ALT 1 (DB)
2016 (4) ALD 320 (DB)
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"4. On a careful consideration of the respective submissions of
the learned counsel for the parties, we are of the opinion that in
the absence of any explanation whatsoever offered by the
petitioners for their failure to conclude disciplinary proceedings
for a decade, the ratio laid down by the Supreme Court in the
abovementioned cases was rightly applied by the Tribunal in
quashing the disciplinary proceedings. "
19. From the catena of judgments referred to above, it is clear
that continuation of disciplinary proceedings for long time
without any justification or reason would result in grave injustice,
mental agony and distress to the employee and in a given case,
the disciplinary proceedings can be quashed depending upon the
facts and circumstances of the case.
20. Further, as per G.O.Ms.No.679, G.A. (Ser-C) Department,
dated 01.11.2008, the Government directed that the disciplinary
cases initiated against the Government employees shall be
completed as expeditiously as possible i.e., a normal time of 3
months and 6 months is allowed in simple and complicated cases,
respectively. In case of abnormal delay in conducting the
disciplinary proceedings, action shall be initiated against
concerned inquiring authority.
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21. In the present case, disciplinary proceedings were initiated
vide charge memo dated 31.03.2011 and Inquiry Officer was
appointed on 23.09.2017, which is more than six years after
issuance of charge memo. Admittedly, petitioner retired from
service on 31.05.2012 and it is specific case of the petitioner that
charge memo was not served on him and was served on him only
on 04.01.2017 for the first time that too after repeated requests.
22. From the record, it appears that no further action has been
taken against the petitioner pursuant to the charge memo dated
31.03.2011. Learned counsel for petitioner as well as learned
Government Pleader for respondent Nos.1 and 2 represented that
Enquiry Officer appointed on 23.09.2017 had retired without
conducting any inquiry and, therefore, another Enquiry Officer
was appointed in the year 2019. He also retired from service
without conducting any inquiry, which shows that inquiry has
not been completed till date though the charge memo was issued
on 31.03.2011.
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23. In the light of above discussion, facts and legal precedents,
continuation of disciplinary proceedings/enquiry against the
petitioner since 31.03.2011 without there being any progress
except appointing enquiry officer on 23.09.2017 about six years
after issuance of charge memo, is gross abuse and would lead to
grave injustice, harassment, mental agony to the petitioner and
also amounts to condemnation of the person and therefore, the
proceedings against the petitioner are liable to be set aside/
quashed.
24. Accordingly, Writ Petition is allowed and respondents are
directed to accord notional seniority to the petitioner from the
date he was due and eligible, together with all monetary and
consequential benefits. There shall be no order as to costs.
25. Pending miscellaneous applications if any shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 21.09.2024
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