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2019 DIGILAW 231 (AP)

S. Muni Purushotham v. State of Andhra Pradesh

2019-09-13

D.V.S.S.SOMAYAJULU

body2019
ORDER D.V.S.S. Somayajulu, J. 1. This writ petition is filed seeking a writ of mandamus questioning the proceeding dated 5.9.2018 and the consequential proceedings dated 22.5.2018 and to set aside the same and consequently direct the respondents to reinstate the petitioner to duty with all consequential benefits including arrears of salary, revision of pay and increments etc. 2. The petitioner before this Court was working with respondent No. 2 as a Senior Seed Certification Officer. He was removed from Office on the basis of a major penalty that was imposed. Questioning the same, the present writ petition is filed. 3. This Court has heard Sri Pratap Narayan Sanghi, learned Counsel for the petitioner and Government Pleader for Agriculture for respondent No. 1 and Sri P. Durga Prasad appearing for respondent No. 2. 4. The facts of the case, which are not in dispute, are that the petitioner was appointed as an Assistant Seeds Officer in April, 1985. Thereafter, he was promoted as a Senior Seed Certification Officer in 2006. In 2012, he was posted at Kurnool. For an alleged dereliction of duty, he was issued a charge memo, based on a preliminary enquiry. The petitioner submitted his explanation and an order of removal was passed against him in February, 2018. The petitioner challenged the same before the combined High Court in WP No. 11385 of 2018. The order of removal was set aside. Thereafter, another order of removal was passed in 2018. The petitioner challenged the same by filing WP No. 22187 of 2018. The Hon'ble High Court directed him to file a statutory appeal. The appeal was filed raising various grounds. On 5.9.2018, the appeal was dismissed. Questioning the same and the consequent proceedings, the present writ petition is filed. 5. Sri Pratap Narayan Sanghi, Counsel for the petitioner, argued that the enquiry is inherently vitiated because a copy of the preliminary enquiry was not furnished to the petitioner. He also submits that the same is not a part of the record and that therefore, he argues that the basis of the charge is not established before the Enquiry Officer. Consequently, he states that the entire enquiry is bad in law. He also submits that the petitioner's duty as Certification Officer, Kurnool, his job was to just look into the quality of the seeds; all other matters relating to procurement are entrusted to other Officers. Consequently, he states that the entire enquiry is bad in law. He also submits that the petitioner's duty as Certification Officer, Kurnool, his job was to just look into the quality of the seeds; all other matters relating to procurement are entrusted to other Officers. Learned Counsel argues that there is absolutely no documentary or other evidence to show that the quality of seeds that were alleged are supplied by the petitioner and that they caused loss to the respondents. He submits that even though the Evidence Act is not applicable in its full vigor, the provisions of the Act do apply and that the respondent-employer, who has charge-sheeted the petitioner was under an obligation to prove that case. Learned Counsel submits that there is no shred of evidence to prove the case even after the petitioner denied the charge. Lastly, he submits that the same Enquiry Officer, who conducted the preliminary enquiry, was also appointed as an Enquiry Officer. Therefore, he submits that the enquiry is flawed. He relies upon five cases and argued that the entire proceedings should be set aside and the petitioner (which was on the verge of retirement) when terminated who has rendered distinguished service so far should be reinstated with full wages and all attendant benefits. 6. In reply to this, Sri P. Durga Prasad, learned Counsel for respondent No. 2 submits that many of the issues that are raised were not urged during the course of the enquiry. He submits that the petitioner never asked for a copy of the preliminary report. He argues that mere non-furnishing of the report will not vitiate the entire enquiry. It is his submission that this Court should not enter into the area of quality of evidence that has been introduced in this case and that the standard of proof is not the same as in the civil Court let alone in a criminal Court. He points out that the available evidence was enough for the Enquiry Officer and the appellate authority to come to a conclusion that the guilt of the delinquent/petitioner is proved. He also submits that there is a breach of duty and therefore, the petitioner was held guilty. For all these reasons, the learned Standing Counsel argues that there are no merits in the writ and that this Court should interfere in the same. 7. He also submits that there is a breach of duty and therefore, the petitioner was held guilty. For all these reasons, the learned Standing Counsel argues that there are no merits in the writ and that this Court should interfere in the same. 7. This Court after hearing both the learned Counsel notices that the service particulars of the petitioner are not in dispute. In the counter-affidavit filed, the service particulars of the petitioner from 1985 till 2017 are reproduced. The promotions and postings are also mentioned. 8. The first and foremost submission of the learned Counsel for the petitioner is that the copy of the alleged preliminary report has not been furnished. He submits that the basis on which the entire proceedings have started are not on the record. On 30.8.2016, one Sri Hema Sundar was directed to conduct a preliminary enquiry. Thereafter, basing on the preliminary enquiry, a charge memo was issued to the petitioner on 2.12.2016. In Annexure-III to the charge memo, it is clearly mentioned that no oral evidence or list of witnesses were cited. Annexure-IV is a report dated 25.10.2016 of the Enquiry Officer. 9. The petitioner denied all the imputations by his reply dated 24.12.2016. He also filed a written submission on 20.1.2017. Thereafter, it appears that the Enquiry Officer gave his report. In the report furnished also the analysis of evidence shows that the Enquiry Officer did not look into the preliminary report. The entire analysis of the evidence is in one para. The Enquiry Officer came to the conclusion that the delinquent failed to supervise the duties of his Junior Officer Sri Pradeep Kumar. He also noted that the petitioner inspected 10% of the Plants in Kurnool District and did not inspect the Plant pertaining to M/s. Siri Agri Tech, which purportedly caused the loss. There is no reference to the preliminary report. No other evidence is there on record either. 10. On this basis, he held that the petitioner was guilty. Against the same, the petitioner filed representation dated 22.4.2018 requesting for dropping of the charges. Ultimately, an order dated 24.2.2018 was passed dismissing him from service. This was set aside by the Hon'ble High Court in WP No. 11385 of 2018. 11. Again a fresh order was passed on 22.5.2018, wherein the history of the case was reiterated. The articles were reproduced. Ultimately, an order dated 24.2.2018 was passed dismissing him from service. This was set aside by the Hon'ble High Court in WP No. 11385 of 2018. 11. Again a fresh order was passed on 22.5.2018, wherein the history of the case was reiterated. The articles were reproduced. After holding that no new points have been brought about by the Charged Officer, the punishment was imposed. Thereafter, with the permission of the High Court of Andhra Pradesh, a formal statutory appeal was filed in which all the grounds that are now urged have been raised. 12. It is clear from the submissions made by both the parties that the preliminary report on the basis of which the employee was charge-sheeted, is not a part of the record. The Enquiry Officer's findings, as can be seen from his report, do not make a reference to the preliminary report. How the loss is caused and the extent of the loss are not specified. It is an admitted fact that the petitioner has denied the charges. Once the petitioner has denied charges, a duty was cast upon the Department/respondents to prove their case. If the petitioner, as the charged employee, admitted the guilt, different considerations would apply. But in this case, there is a clear denial of the allegations. Therefore, in the enquiry, some evidence was necessary to prove the case. Neither the Enquiry Officer's report nor the order of the disciplinary authority refer to any evidence or even to the preliminary enquiry that the seeds are of poor quality and that they caused loss to the respondents. This should have been established. The dereliction of duty should also have been clearly pointed out. Same is not done. The case law relied upon by the petitioner in State of Uttaranchal v. Kharak Singh, 2008 AIR SCW 7507, is applicable to the facts of the case. In Para 11, the Hon'ble Supreme Court clearly said that the Department should take steps to lead evidence against the workmen and thereafter, the workmen should be given an opportunity. It is also held that after the enquiry report is furnished, it is incumbent on the disciplinary authority to supply a copy of the enquiry report with connected materials. The same is not done in this case. It is also held that after the enquiry report is furnished, it is incumbent on the disciplinary authority to supply a copy of the enquiry report with connected materials. The same is not done in this case. Similarly, in Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983 , the Hon'ble Supreme Court held that the technical rules of evidence do not apply in a domestic enquiry, but the substantive rules which forming part to the concept of internal justice cannot be totally ignored. In Nand Kishore Prasad v. The State of Bihar, AIR 1978 SC 1277 , also, it is held that the Tribunal in a domestic enquiry should have some material to come to a conclusion that the delinquent is guilty of the article of charge. 13. In the case on hand, there is no material available to show that the seeds that are certified lead to the loss that is alleged. 14. As rightly submitted, failure to supply preliminary report and the failure of the Department to lead any evidence whatsoever itself causes prejudice is the submission of the learned Counsel which finds favour with this Court. Non-application of mind is visible. Apart from all of this, it is also seem that the Enquiry Officer Sri G. Hema Sundar is the Officer who conducted the preliminary enquiry. Therefore, the element of bias cannot also be ruled out. Therefore, this Court is of the opinion that the petitioner is entitled to a finding that the imposition of punishment is bad in law. The entire proceedings are therefore set aside. 15. Coming to the last submission made by the learned Counsel for the petitioner while relying upon Allahabad Bank v. Krishna Narayan Tewari, AIR 2017 SC 330 , this Court also finds that on the date of writ petition, the petitioner aged about 58 years, and he is on the verge of retirement. 16. In that view of the matter, this Court is of the opinion that the punishment of removal from service is to be quashed. The petitioner is entitled to reliefs at this stage instead of remanding the matter back. The service record of the petitioner is not blemished. Setting the clock back and remanding the matter would not serve any purpose and would in fact deny him justice in the opinion of this Court. The petitioner is entitled to reliefs at this stage instead of remanding the matter back. The service record of the petitioner is not blemished. Setting the clock back and remanding the matter would not serve any purpose and would in fact deny him justice in the opinion of this Court. Therefore, while setting aside the punishment and holding that the order passed by the disciplinary authority is quashed this Court holds that the petitioner entitled to continuity of service and all other consequential benefits including arrears of salary, revision of pay, increments and all other service benefits. 17. The writ petition is allowed as prayed for. No order as to costs. As a sequel, the miscellaneous applications, if any pending, shall stand closed.