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2021 DIGILAW 360 (AP)

Kesineni Vijaya Kumar v. State of Andhra Pradesh

2021-06-28

ARUP KUMAR GOSWAMI, NINALA JAYASURYA

body2021
JUDGMENT Arup Kumar Goswami, C.J. - Heard Mr. Atchutananda Dondeti, learned counsel for the appellant/writ petitioner. Also heard Ms. P. Rajani, learned Government Pleader for Endowments appearing for respondent Nos.1 and 2, and Mr. K. Madhava Reddy, learned standing counsel appearing for respondent Nos.3 and 4. 2. This writ appeal is preferred against the judgment and order dated 19.02.2020 passed by the learned single Judge in W.P.No.5853 of 2019. The appellant herein is the petitioner in the said writ petition. 3. The appellant/writ petitioner is an employee of Sri Durga Malleswara Swamy Vari Devasthanam, Indrakeeladri, Vijayawada, third respondent herein, and is functioning as Superintendent in the said Devasthanam. It appears that prior to his transfer to the third respondent-Devasthanam, he was working in Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, Simhachalam, fourth respondent herein. For the alleged misconduct committed by him while working in the fourth respondent-Devasthanam, namely, colluding with the land-grabbers for bribe and cooperating for illegal constructions in the land belonging to the fourth respondent-Devasthanam, disciplinary proceedings were initiated against him and charge memo dated 21.11.2017 was issued framing four charges. On conclusion of disciplinary proceedings, by an order dated 06.03.2018 of the Executive Officer of the third respondent-Devasthanam, the appellant/writ petitioner was inflicted with punishment of stoppage of one increment without cumulative effect. Another employee was also inflicted with similar punishment by the said order. 4. Challenging the said order dated 06.03.2018, the appellant/writ petitioner filed the writ petition and he also sought for a direction to the respondents to consider his case for promotion as an Assistant Executive Officer. He claimed that his position in the seniority list was at Sl.No.5. 5. By the order under challenge, the learned single Judge had observed that the Enquiry Officer could not decide whether the bribe was taken or not. The learned single Judge further observed that the authorities did not furnish the report of the Enquiry Officer to the appellant/writ petitioner to invite response from him and that no reasons were assigned as to why the punishment had to be imposed. Accordingly, the learned single Judge set aside the order of punishment and directed the third respondent to serve the enquiry report along with all documents and to invite his comments and thereafter, to dispose of the proceedings by a reasoned order. 6. Mr. Accordingly, the learned single Judge set aside the order of punishment and directed the third respondent to serve the enquiry report along with all documents and to invite his comments and thereafter, to dispose of the proceedings by a reasoned order. 6. Mr. Atchutananda Dondeti, learned counsel for the appellant/writ petitioner, submits that by the time the writ petition was disposed of, the period of punishment of stoppage of one increment was already over. It is contended by him that stoppage of one increment without cumulative effect is a minor penalty and as the appellant/writ petitioner had suffered the punishment, there cannot be any reason for the authorities to not consider his case for promotion. Learned counsel submits that the learned single Judge did not advert to the aspect regarding the promotion of the appellant/writ petitioner and, as such, the impugned order is vitiated. He placed reliance on a judgment of a learned single Judge of this Court in A.P. Naidu v. General Manager, South Central Railway, (1983) 1 LLJ 151 AP, and a judgment of the Hon'ble Supreme Court in State of Mysore v. Syed Mahmood,1968 AIR 1113. Accordingly, he submits that a direction may be issued to the respondents to consider the case of the appellant/writ petitioner for promotion. 7. Ms. P. Rajani, learned Government Pleader for Endowments appearing for respondent Nos.1 and 2, and Mr. K. Madhava Reddy, learned standing counsel appearing for respondent Nos.3 and 4, submit that there is no illegality in the order of the learned single Judge and, therefore, no interference is called for with regard to the said order. It is further submitted that as departmental proceedings are pending against the appellant/writ petitioner, his case cannot be considered for promotion. 8. We have heard the learned counsel for the parties and perused the materials on record. 9. At the outset, it will be relevant to extract the order dated 23.06.2021, which reads as under: "Heard Mr. Atchuthananda Dondeti, learned counsel for the appellant. Also heard Ms. P. Rajani, learned Government Pleader for Endowments appearing for respondent Nos.1 and 2 and Mr. K. Madhava Reddy, learned standing counsel appearing for respondent Nos.3 and 4. In the forenoon, after hearing the arguments advanced by the learned counsel for the parties, this Court reserved the matter for orders. However, in the afternoon session, Mr. Also heard Ms. P. Rajani, learned Government Pleader for Endowments appearing for respondent Nos.1 and 2 and Mr. K. Madhava Reddy, learned standing counsel appearing for respondent Nos.3 and 4. In the forenoon, after hearing the arguments advanced by the learned counsel for the parties, this Court reserved the matter for orders. However, in the afternoon session, Mr. Atchuthananda Dondeti, in the absence of the counsel for the other side, has again sought to make submissions in the matter. Therefore, we deem it appropriate to list this case again for motion hearing on 25.06.2021." 10. It is in view of the aforesaid development as noticed in the order dated 23.06.2021, it was directed to post the case on 25.06.2021. 11. It will be appropriate to take note of the order dated 25.06.2021, which reads as under: "Heard Mr. Atchutananda Dondeti, learned counsel for the appellant. Also heard Ms. P.Rajani, learned Government Pleader for Endowments appearing for respondent Nos.1 and 2 and Mr. K.Madhava Reddy, learned standing counsel appearing for respondent Nos.3 and 4. Perused the order dated 23.06.2021. On 23.06.2021, in the forenoon, during the course of arguments, Mr.Atchuthananda Dondeti had submitted that he would have no objection if the order of penalty remains. However, in the afternoon session, in the absence of the counsel for otherside, he had submitted that it would not be proper for him to concede to the order of the penalty imposed and, therefore, the Court may not proceed on that basis. It is in that context the matter was directed to be listed today. Today also, in the presence of Ms. P.Rajani and Mr. K.Madhava Reddy, Mr.Atchuthananda Dondeti submits that the order of penalty imposed earlier is not acceptable to him. With the above clarification given by Mr. Atchuthananda Dondeti, order is reserved. The case shall be posted for delivery of orders on 28.06.2021." 12. On a query of the Court, it is stated by the learned counsel for the respondents that imposition of stoppage of one increment without cumulative effect is a minor punishment. 13. What is noticeable in this case is though the learned single Judge had set aside the order of punishment, the fact remains that the appellant/writ petitioner had already suffered punishment of stoppage of one increment. 13. What is noticeable in this case is though the learned single Judge had set aside the order of punishment, the fact remains that the appellant/writ petitioner had already suffered punishment of stoppage of one increment. While setting aside the order dated 06.03.2018, there was no corresponding direction by the learned single Judge that the appellant/writ petitioner should be granted increment which was not granted to him in view of the order of imposition of punishment, though direction for completion of the enquiry proceedings from the stage of furnishing enquiry report was given. 14. So far as the aspect of promotion of the appellant/writ petitioner is considered, it is not indicated in the pleadings as to how the promotion to the post of Assistant Executive Officer is to be effected. It is also not clear as to whether there is any vacant post of Assistant Executive officer. Though the learned single Judge directed completion of the proceedings within a period of four weeks from the date of receipt of the order dated 19.02.2020, the counter-affidavit filed by the third respondent-Devasthanam on 16.04.2021 goes to show that the proceedings are not completed till date. Even during the course of hearing, it has not been submitted that the proceedings have come to an end. 15. Since the appellant/writ petitioner had already suffered punishment of stoppage of one increment without cumulative effect, in the attending facts and circumstances, we hold that pendency of the present disciplinary proceedings shall not be a bar for consideration of the case of the appellant/writ petitioner, if he is otherwise eligible, for promotion to the post of Assistant Executive Officer, along with other eligible candidates, and for effecting his promotion in accordance with law. 16. In A.P. Naidu (supra), the learned single Judge of this Court had taken a view that withholding of promotion on the ground of pendency of departmental enquiry would amount to violation of Article 16 of the Constitution. It is not necessary for us to dilate on this aspect for the purpose of this case. Suffice it is to say that it is well settled that withholding of promotion during the pendency of departmental enquiry by following sealed cover procedure is well recognized. 17. The other case relied on by Mr. It is not necessary for us to dilate on this aspect for the purpose of this case. Suffice it is to say that it is well settled that withholding of promotion during the pendency of departmental enquiry by following sealed cover procedure is well recognized. 17. The other case relied on by Mr. Dondeti Atchutananda in Syed Mahmood (supra) is in the context of "next below rule" and is, therefore, not applicable in the factual matrix presented in this case. 18. Accordingly, the writ appeal stands disposed of with the above observations. No costs. Pending miscellaneous applications, if any, shall stand closed.