Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 120 (AP)

K. Kusuma Kumari v. State of Andhra Pradesh

2020-02-13

T.RAJANI

body2020
ORDER : T. Rajani, J. 1. This writ petition is filed seeking to quash the impugned G.O.Rt. No. 465, Panchayat Raj & Rural Development (VIG.IV), dated 29.7.2019, issued by the 1st respondent imposing a major penalty of stoppage of one year annual grade increment with cumulative effect, basing on the inquiry report, dated 7.3.2018, as the same is without jurisdiction or authority and is without following the procedure contemplated under the provisions of A.P. Civil Services (Conduct, Classification and Appeal) Rules, 1991, (for short, "Rules") and to declare the enquiry report, dated 7.3.2018 submitted by the Inquiry Officer, as illegal. 2. The petitioner was working as Extension Officer (PR & RD) having been appointed by virtue of the proceedings, dated 26.2.2005, of the Commissioner of Panchayat Raj & Rural Development. A charge memo was issued to the petitioner with the following charges: "Article-I: That Smt. K. Kusuma Kumari, the then EO (PR & RD), Chimakurthy, Tripurantakam & Kothapatnam Mandal and presently working as Chimakurthy (M) of Prakasam District, has conducted the auction for fishery rights in Gonugunta Tank at Gonugunta Village in which the upset price is more than Rs. 25,000/- and authenticated the highest bidder without informing the DLPO and without following auction procedure by violating Section 58 of APPR Act. Article-II: That Smt. K. Kusuma Kumari, the then EO (PR & RD), Chimakurthy, Tripurantakam & Kothapatnam Mandal & presently working at Chimakurthy (M) of Prakasam District, has tampered Attendance Register after assuming charge of MPDO, Tripurantakam for the dates from 18.8.2010 to 21.8.2010 and 1.11.2010 to 6.11.2010 without attending to office. Article-III: That Smt. K. Kusuma Kumari, the then EO (PR & RD), Chimakurthy, Tripurantakam & Kothapatnam Mandal & presently working at Chimakurthy (M) of Prakasam District, has purchased a flat worth of Rs. 14,40,000/- without prior intimation/permission from the higher authorities and she did not submit annual property statement every year. Thus she violated sub-rule (7) of Rule 9 of A.P. Civil Service (Conduct) Rules, 1964." 3. All Annexures were shown in the said charge memo. Annexures-II and III would show that the vigilance report, dated 28.5.2015, is the basis for framing charges. There were no witnesses for such allegations made against the petitioner. The said vigilance report is behind the back of the petitioner and the same is not served on her and hence, it is not binding on her. Annexures-II and III would show that the vigilance report, dated 28.5.2015, is the basis for framing charges. There were no witnesses for such allegations made against the petitioner. The said vigilance report is behind the back of the petitioner and the same is not served on her and hence, it is not binding on her. However, as the 1st respondent directed her to submit an explanation, she submitted the same and an Enquiry Officer was appointed. Thereafter, she appeared before the Enquiry Officer and while the enquiry was going on, the respondents convened the Departmental Promotion Committee in the month of July, 2017 and promotion to the petitioner was denied on the ground that the charge memo was pending. Thereby, the petitioner filed OA No. 2493 of 2017 and obtained an interim order. But, subsequently, the O.A., was dismissed. The Enquiry Officer has exonerated the petitioner from Charge No. 1 as it was not proved. Charges 2 and 3 were held as partly proved. Challenging the order passed in OA No. 2493 of 2017, the petitioner filed WP No. 30613 of 2018. The said writ petition was closed directing the respondents to pass appropriate orders on the articles of charges framed against the petitioner taking into account the findings of the Enquiry Officer on the report, dated 7.3.2018, within a period of six weeks. Pursuant to the directions of the High Court, the impugned proceeding got to be passed. Respondent No. 1 has no jurisdiction to pass the impugned proceedings as the competent authority is the disciplinary authority that is the 2nd respondent. As per sub-rule (2) Clause (1) of Rule 14 of Rules, the right of appeal to the petitioner provided under Rules 33 and 34 is lost due to the said reason. 4. The respondents in their counter, denying the averments in the petition, made the following contentions: The contention of the petitioner that the Government has no jurisdiction to initiate disciplinary proceedings against the petitioner, is not correct. 4. The respondents in their counter, denying the averments in the petition, made the following contentions: The contention of the petitioner that the Government has no jurisdiction to initiate disciplinary proceedings against the petitioner, is not correct. As per Rule 24 of the Rules, where two or more Government Servants of the same service or different services are concerned, in any case, the Government or any authority competent to impose the penalty of dismissal from service on all such Government Servants may make an order directing that disciplinary action against all of them may be taken in a common proceedings and the proceedings may be made by the highest of such authorities. One of such charged officers, against whom it has been proposed to initiate common disciplinary proceedings, has been working in the cadre of District Panchayat Officer, Ongole, and the Government is the appointing authority and the disciplinary authority to the said post. Another Charged Officer, one G. Prasada Rao, the then Superintendent & Mandal Praja Parishad Development Officer retired from service by the time the vigilance report was received from the Government and as per Rule 9 of Andhra Pradesh Revised Pension Rules, 1980 (for short, "Pension Rules"), the Government is the competent authority to initiate disciplinary action against the retired Government Servants. As per Rule 21(2) of the Rules, the Disciplinary Authority shall only forward or cause to be forwarded a copy of the Enquiry Report together with the disagreement factors if any on the findings of the inquiry authority. As per Rule 34 of the Rules, if the order imposing the punishment is passed by the Head of the Department, the appeal shall lie to the Government. In the instant case, the orders have been passed by the Government under common disciplinary proceedings invoking Rule 24 of the said Rules. In cases where the original orders have been passed by the Government, the delinquent employees can file review petition against the said orders within three months from the date on which the order was communicated to him, under Rule 38 of the said Rules. Hence, the contention of the petitioner that as the Government has initiated disciplinary proceedings against her, she was deprived of her legitimate right of making appeal, is not correct. Based on the above contentions, the respondents seek to dismiss the writ petition. 5. Hence, the contention of the petitioner that as the Government has initiated disciplinary proceedings against her, she was deprived of her legitimate right of making appeal, is not correct. Based on the above contentions, the respondents seek to dismiss the writ petition. 5. Heard Sri C. Srinivasa Baba, learned Counsel for the petitioner; the Government Pleader for Services-I appearing for the 1st respondent and the Government Pleader for Panchayat Raj & Rural Development appearing for respondents 2 and 3. 6. The enquiry report concludes that the first charge is not proved. The Enquiry Officer held Article-I of the charges as not proved. Charge being as follows: "Article-I: That Smt. K. Kusuma Kumari, the then EO (PR & RD), Chimakurthy, Tripurantakam & Kothapatnam Mandal and presently working as Chimakurthy (M) of Prakasam District, has conducted the auction for fishery rights in Gonugunta Tank at Gonugunta Village in which the upset price is more than Rs. 25,000/- and authenticated the highest bidder without informing the DLPO and without following auction procedure by violating Section 58 of APPR Act." The Charge No. 2 is that the petitioner has tampered attendance register after assuming charge of the MPDO for the dates 18.8.2010 to 21.8.2010 and 1.11.2010 and 6.11.2010. In that regard, the finding of the Enquiry Officer is that as per the documentary evidence submitted by the petitioner, she was sanctioned medical leave during the period from 1.11.2010 to 6.11.2010 and she was on bona fide duty from 18.8.2010 to 21.8.2010 to various villages towards the sanctioned programme as per the directions of the District Collector, Prakasam. It was also noted that the petitioner submitted the copies of the Gram Panchayat records verified by her during the period. 7. When such was the evidence, the role of the petitioner in the tampering cannot even be assumed, much less concluded. The motive for manipulation of the dates is not made out. The manipulated dates of 18.8.2010 to 21.8.2010 are the dates during which period the petitioner was on duty in various villages. Evidence was also adduced to that effect before the Enquiry Officer and was recorded in the enquiry report. The conclusion with regard to Article-II is that the petitioner, on verification, was found to have not produced medical certificate, which is a procedural lapse on her part for sanctioning of the medical leave. Evidence was also adduced to that effect before the Enquiry Officer and was recorded in the enquiry report. The conclusion with regard to Article-II is that the petitioner, on verification, was found to have not produced medical certificate, which is a procedural lapse on her part for sanctioning of the medical leave. Even assuming that the petitioner failed to submit medical certificate, it is for the leave sanctioning authority to grant the leave or refuse the same in the absence of such medical certificate. Proved fact is that leave was sanctioned. Hence, the presumption would be that it was sanctioned based on the medical certificate. The assertion of the petitioner is that she has produced the medical certificate, which is in consonance with the act of the leave granting authority in granting the leave. The Enquiry Officer, however, found over writings on the above dates. He concludes that the reasons for over writings are not clear and it is not clear as to who has made those over writings. When there is no motive made out against the petitioner, fixing her responsible purely for the over-writings is absolutely unsustainable. The procedural lapse in sanctioning the leave without medical certificate, as noted in the enquiry report, is that of the sanctioning authority, but not that of the petitioner. It is also mentioned in the enquiry report that the petitioner is not squarely responsible for the same. But, however, the Enquiry Officer concludes that she may be partly responsible, which is absolutely unreasoned. When it is the sanctioning authority that has to grant the leave based on the material submitted by the employees, sanctioning of the leave without the medical certificate would only be the lapse of the sanctioning authority. He ought to have refused the grant of medical leave if the medical certificate was not produced. Hence, the findings of the Enquiry Officer of Article-II, on the face of it, are perverse and cannot be sustained. 8. Equally erroneous is the finding on Article-III, which is as follows: "The Charged Officer has produced the copies of her letter duly acknowledged by the Superintendent of MPDO Office, Kothapatnam as an evidence of submitting request for Flat purchase permission which was addressed to Chief Executive Officer, Zilla Praja Parishad, Prakasam. Therefore, the benefit of doubt may be given in favour of the Charged Officer. Therefore, the benefit of doubt may be given in favour of the Charged Officer. With regard to submission of Annual Property statements she furnished acknowledgement from the O/o. The Divisional Panchayat Officer, Ongole for the years 2013 to 2014, she herself has agreed that she has nor furnished Annual Property Returns for previous years out of ignorance." The explanation of the petitioner with regard to non-submission of annual statements for the year 2013-14 is that she was ignorant of the requirement. The fact remains that she was granted permission to purchase the flat. If the annual returns were not submitted by her, permission to purchase the flat ought to have been denied, if those annual returns were considered to be material. When the authority permits her to purchase flat based on the annual returns of 2013-14, it has to be assumed that the authority was satisfied about the financial status of the petitioner to purchase the flat. Otherwise, he would have returned her application, seeking for the annual returns prior to 2013 to be submitted. The non-submission of annual returns prior to 2013 cannot make the petitioner liable for any punishment as she has purchased the flat under due permission given by the authority concerned. Hence, the findings of the Enquiry Officer on Articles-II and III, are absolutely erroneous and baseless. 9. After submission of the enquiry report, the impugned order got to be passed not on the basis of the findings on Articles-II and III of the charges, but on the basis of Article-I of the charges, for which she was found not guilty. The Enquiry Officer has given a clear finding that there is no violation of Rules in conducting auctions pertaining to usufruct in Gram Panchayats by the Extension Officer and that they are not relevant for fisheries auction. But, without meeting the said finding, the impugned order seems to have been passed, reiterating that the petitioner did not verify whether the Gram Panchayat has followed the instructions issued for auction of fishery rights. The Enquiry Officer relies on the Rules issued in G.O.Ms. But, without meeting the said finding, the impugned order seems to have been passed, reiterating that the petitioner did not verify whether the Gram Panchayat has followed the instructions issued for auction of fishery rights. The Enquiry Officer relies on the Rules issued in G.O.Ms. No. 343, PR (Committee-I), dated 10.4.1978, as per which the Executive Authority of Gram Panchayat shall make an application to the District Panchayat Officer concerned with regard to leasing out of minor irrigation tanks within five days from the date of receipt of application and has to fix upset price duly considering the market value and other factors and communicate the same to the Executive Officer and the Panchayat Officer concerned. On the basis of the above Rules, the Enquiry Officer concluded that there is no violation of the rules. Hence, when such is the finding of the Enquiry Officer, without there being any explanation as to how the Enquiry Officer was wrong in arriving at such finding, on the basis of simple reiteration of the charge, passing of the impugned order is not appropriate. The law is well settled that the disciplinary authority, if it decides to defer from the evidence of the Enquiry Officer, has to record reasons. The impugned order is bereft of any such reasons and the same cannot be sustained. 10. As regards, the second contention with regard to the jurisdiction of the 1st respondent in passing the impugned order, this Court finds the said contention as not merited. Rule 24 of the Rules provides for common proceedings to be taken up in respect of employees pertaining to different cadres. In such case, if the authorities competent to impose the penalty of dismissal on such Government servants are different, such authorities not being the Government, an order for holding such inquiry in a common proceeding may be made by the highest of such authorities with the consent of the other authorities competent to impose the said penalty on the others. 11. In this case, the disciplinary action was taken against different cadre of the Government servants. One Government servant was District Panchayat Officer of whom the Government is the appointing authority and another Government servant is the SI of MPDO, who retired from service, for whom also the Government is the competent authority to initiate disciplinary action. 11. In this case, the disciplinary action was taken against different cadre of the Government servants. One Government servant was District Panchayat Officer of whom the Government is the appointing authority and another Government servant is the SI of MPDO, who retired from service, for whom also the Government is the competent authority to initiate disciplinary action. Hence, common disciplinary proceedings were initiated against all the charged officers and the impugned order got to be passed by the 1st respondent. 12. However, for the reasons mentioned in the aforementioned paragraphs, the writ petition is allowed setting aside the impugned G.O.Rt. No. 465, Panchayat Raj & Rural Development (VIG.IV), dated 29.7.2019, issued by the 1st respondent. 13. As a sequel, the miscellaneous applications pending, if any, shall stand closed.