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2020 DIGILAW 615 (AP)

N. Suribabu v. State Of Andhra Pradesh

2020-09-16

U.DURGA PRASAD RAO

body2020
JUDGMENT U Durga Prasad Rao, J. - The petitioner seeks a Writ of Mandamus declaring the proceedings in Rc.No.277/2020/EGS/Legal dated 08.07.2020 passed by the 3rd respondent, terminating the petitioner from the post of Field Assistant, Gedda Kancharam Gram Panchayat of G. Sigadam Mandal, Srikakulam District, without considering the enquiry reports dated 13.09.2017 and 25.07.2018 and without passing a speaking order, as illegal, arbitrary and violative of principles of natural justice and provisions of National Rural Employment Guarantee Scheme Act, 2005 and consequently to set aside the impugned order and reinstate the petitioner into service. 2. The petitioner's case is thus. He was appointed as Field Assistant, Gedda Kancharam Gram Panchayat of G.Sigadam Mandal, Srikakulam District under Mahatma Gandhi National Rural Employment Guarantee Scheme in the year 2007 and since then he has been discharging his duties promptly and to the utmost satisfaction of his Superiors and there were no adverse remarks against him from any corner till date. However, due to the politically motivated complaints, the 3rd respondent issued show cause notice and suspension proceedings in Rc.No.277/2017/EGS/HR, dated 25.07.2019 alleging that one Nakka Prasada Rao, former Sarpanch of Gedda Kancharam Village and wage seekers gave a complaint dated 15.07.2017 against the petitioner alleging that he misappropriated Rs.68 Lakhs by using benami musters between 2012-13 and 2018-19 and also issued less wages to the wage seekers and sought for appropriate action. The petitioner submitted his detailed written explanation on 30.07.2019 to the 3rd respondent as against the show cause notice served on him. In his explanation, he clearly stated that in the year 2018 the Assistant Project Director, Etcherla Cluster, Srikakulam District conducted enquiry in the presence of wage seekers and on 24.07.2018 the Vigilance and Enforcement Officer also conducted enquiry and found that the allegations against him were not proved and in his written explanation, he requested to consider those enquiry reports and drop the further action against him. However, to his utter surprise, the 3rd respondent without considering his explanation and earlier reports and also without examining the material evidence available on record, issued the impugned proceedings and terminated him from the service. Hence, the Writ Petition. 3. Heard learned counsel for petitioner, Sri Srinivas Ambati and learned Government Pleader for Panchayatraj representing respondent No.1 and Sri M. Srirama Chandra Murthy, learned Standing Counsel for respondent Nos.2 and 3. 4. Hence, the Writ Petition. 3. Heard learned counsel for petitioner, Sri Srinivas Ambati and learned Government Pleader for Panchayatraj representing respondent No.1 and Sri M. Srirama Chandra Murthy, learned Standing Counsel for respondent Nos.2 and 3. 4. The main plank of argument of learned counsel for petitioner is that the present complaint is a politically motivated one at the instance of former Sarpanch of Gedda Kancharam Village and there is no iota of truth in it. Earlier also, when similar complaints were made, Assistant Project Director, Etcherla Cluster and Vigilance and Enforcement Officer have conducted enquiries and submitted their reports stating that the petitioner has not committed any misdeeds. However, without looking into those reports and also not considering the detailed explanation submitted by the petitioner and without giving him an opportunity of personal submission, the 3rd respondent passed the impugned order. Hence, the order is devoid of principles of natural justice. Learned counsel further vehemently argued that except noting the alleged allegations and concluding that the petitioner violated the conditions under Disciplinary Rules 5.19 for FTEs of SRDS (2012), dated 08.01.2013 and 12(1) of Code of Conduct, the 3rd respondent has not given any reasons for his conclusion. Hence, it was not a speaking order and thus liable to be set aside. Learned counsel further argued that in similar circumstances when the explanation of the concerned Field Assistant was not taken into consideration and no opportunity of hearing was afforded during the enquiry and he was terminated from the service, the said order was set aside by a learned Single Judge of High Court of Andhra Pradesh at Hyderabad in W.P.No.11038 of 2018 with a direction to concerned authority to afford an opportunity of hearing to the petitioner therein and pass an appropriate orders. He thus prayed to allow the writ petition. 5. In oppugnation, learned Government Pleader and learned Standing Counsel argued that the petitioner committed misappropriation of huge amount of Rs.68 lakhs by using Benami musters between the period 2012-13 and 2018-19 and he also provided less wages to the wage seekers and therefore an enquiry was conducted against him and his misdeeds were found proved and he was accordingly terminated from the service and there is no reason to intervene with the order impugned. They further submitted that as per the Rules and Guidelines contained in Field Assistants Human Resource Policy (FAHRP), Annexure to Circular No.666/EGS(P)/2012, dated 08.01.2013, an appeal is provided against the order passed by the Project Director and in view of the availability of the efficacious remedy, the writ petition is not maintainable and thus prayed to dismiss the writ petition. 6. The Point for consideration is whether there are merits in the writ petition to allow? 7. Point: I gave my anxious consideration to the above respective arguments. As per the show cause notice dated 25.07.2019 served on the petitioner, there are about 800 wage earners under the Rural Employment Guarantee Scheme in Gedda Kancharam Gram Panchayat of G. Sigadam Mandal and out of them 300 persons were attending work daily and the petitioner by preparing Benami musters in respect of the remaining persons, misappropriated an amount of Rs.68 lakhs between 2012-13 and 2018-19. Further, he entered in the muster the names of deceased persons, migrants and those who are working in different companies in order to prepare the musters. He thus violated the Rules issued under Annexure to Circular No.666/EGS/(P)/2012, dated 08.01.2013. Admittedly, the petitioner has submitted his written explanation on 30.07.2019 which is mentioned as Ref.No.6 in the impugned order dated 08.07.2020. Then, a close scrutiny of the impugned order shows, as rightly argued by learned counsel for petitioner, after noting in detail the allegations in the complaint, the 3rd respondent has jumped into the conclusion stating that on seeing the explanation and previous enquiry reports, he found petitioner violated the conditions under Disciplinary Rules. He accordingly terminated him from the post of Field Assistant. It should be noted the 3rd respondent has not discussed the contents in the written explanation as well as the previous reports and has not given reasons as to how he was not satisfied with the submissions made in the explanation and how the findings in the previous reports were not convincing. Most importantly, he has not mentioned as to how the complaint allegations were established and what was the material which weighed with him to come to such conclusion. The order shows, no personal hearing seems to have been accorded to the petitioner. Therefore, it is needless to emphasise the order is devoid of reasons and bereft of following the principles of natural justice. The order shows, no personal hearing seems to have been accorded to the petitioner. Therefore, it is needless to emphasise the order is devoid of reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that no opportunity of hearing was afforded to the petitioner therein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand. No doubt, it is argued by learned Standing Counsel for respondents that an appeal provision is provided in the concerned rules and thereby the writ is not maintainable. I am not convinced with this argument for the reason, in the instant case there is a discernible violation of principles of natural justice as noted supra. Though admittedly the petitioner submitted his written explanation, the same was not considered and no personal hearing was also granted to the petitioner at the time of enquiry. Therefore, the writ petition is maintainable. 8. In Whirlpool Corporation Vs.Registrar of Trade Marks, Mumbai and others, (1999) AIR SC 22 regarding maintainability of writ petition in the context of availability of alternative and efficacious remedy, the Apex Court held thus: 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied). The instant case falls in one of the exceptions carved out by the Apex Court, the principles of natural justice is a casualty here. 9. In the result, this writ petition is allowed and the impugned proceedings in Rc.No.277/2020/EGS/Legal dated 08.07.2020 passed by the 3rd respondent are set aside and the 3rd respondent is directed to consider the written explanation of the petitioner and other relevant material and afford a personal hearing to the petitioner and pass an appropriate order strictly in accordance with the governing law and rules as expeditiously as possible but not later than three (3) months from the date of receipt of a copy of this order. No costs. As a sequel, interlocutory applications, if any pending, shall stand closed.