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2022 DIGILAW 1509 (AP)

M. Satya Prakash v. Government of Andhra Pradesh

2022-12-23

VENKATESWARLU NIMMAGADDA

body2022
ORDER : 1. The present Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “......to issue an appropriate order, writ or direction more particularly one in the nature of Writ of Certiorari by setting aside the impugned punishment order G.O.Rt. No. 2123 PR&RD (Vig.III) Department dated 23.12.2013 and consequential proceedings R.C. No. A1/135/ATP-2015 dated 08.09.2015 and Memo No. 13984/Vig.IV/A2/2055 dated 04.09.2020 of the 1st respondent as illegal, arbitrary, violation of Articles 14, 16 and 21 of the Constitution of India and pass such other order or orders....” 2. Heard learned counsel for the petitioner and learned Government Pleader for the respondents. 3. The brief case of the petitioner is that the petitioner was initially appointed as District Panchayat Officer on 09.02.1998 in Panchayat Raj and Rural Development Department till 2007. Thereafter, he was appointed as C.T.O. on 19.01.2007 and later he was promoted as Assistant Commissioner of Commercial Taxes in the year 2013 and further his post was re-designated as Deputy Commissioner of Commercial Taxes. 4. While the petitioner was working as District Panchayat Officer at Kadapa, he was implicated in frivolous disciplinary proceedings along with six others and he was issued a Charge Memo vide G.O.Rt. No. 195 PR & RD (VIG.III) Department, dated 09.02.2007 on the alleged ground that he was extended the lease of Chevulapalli sand quarry for a period of 130 days, thereby caused loss to Government exchequer to the tune of Rs.54,025/-. 5. The learned counsel for the petitioner submitted that the impugned charge memo vide G.O.Rt. No. 195 PR & RD (VIG.III) Department, dated 09.02.2007 was issued against the petitioner and four others who worked as district panchayat officer, Kadapa at that particular period. He further submitted that after submission of enquiry report by the commissioner of enquiry, which indicates that there is no fault on part of the petitioner and held that the charge levelled against the petitioner is not proved. Even though the enquiry report was submitted wherein it is suggested for exonerating the petitioner from the charge, the respondent authorities for the reasons best known to them issued present impugned proceedings which is contrary to the APCS (CCA) Rules, 1991. He further submitted that the other co accused were exonerated and charges were dropped by the respondents vide G.O.Rt. No. 647 PR & RD Department, dated 29.04.2008 and G.O.Rt. He further submitted that the other co accused were exonerated and charges were dropped by the respondents vide G.O.Rt. No. 647 PR & RD Department, dated 29.04.2008 and G.O.Rt. No. 696 Revenue (Vig.III) dated 28.03.2006 against one Sri L. Sreedhar Reddy and Sri Venkateswararao. After exonerating the charges against two other co-accused and after submission of enquiry report, the disciplinary authority is under legal obligation that similar benefit should be enlarged and charges should be dropped against the petitioner also. 6. The learned counsel for the petitioner further submitted that the other two co-accused preferred O.A. No. 8299 of 2013 and 8300 of 2013 questioning the order of punishment of ten percent cut in pension with cumulative effect before the Andhra Pradesh Administrative Tribunal (APAT). After hearing the matter at length the APAT rendered an award dated 31.05.2017 holding that the punishment imposed by the respondent by disagreement to the enquiry report is beyond the scope of the enquiry and the respondent No. 1 has no right of authority to disagree with the findings of the Enquiry Officer on the aspect which is not covered under the charge memo and then impose penalty and further held there was abnormal delay in conducting enquiry and the charge memo does not contain the basis of charge and the same is in violation of mandatory provisions of Sub Rule (3) and (4) of APCS (CCA) Rules, 1991. Accordingly, the impugned punishment imposed against applicants therein was liable to be set-aside. 7. The learned counsel for the petitioner submitted that the Hon’ble Apex Court, while dealing with the delay in initiation and conclusion of the disciplinary proceedings against a Government employee in the case of P.V. Mahadevan vs. Managing Director, T.N. Housing Board, 2005 (6) SCC 636 wherein it is held as follows: “Inordinate delay of ten years in initiating and concluding the enquiry due to which the charged officer suffered enough results in quashing of the charge memo.” 8. The learned counsel for the petitioner further submitted that the Apex Court, in another case of Secretary, Ministry of Defence vs. Prabhash Chandra Mirdha, 2012 (11) SCC 565 while following its earlier decision in the case of Union pf India vs. M.V. Bijilani, 2006 (5) SCC 88 wherein it is held as follows: “....Delay in initiating or concluding enquiry proceedings cones prejudice to the delinquent and it is a ground for quashing the charge memo...” 9. As already referred to above, for the alleged events of misconduct during the period from 1998 to 2002, 1st respondent initiated disciplinary proceedings against the applicants covered by this batch in the year 2007 and 2008 and concluded by way of impugned G.O.Rt. No. 2123 PR&RD dated 23.12.2013 that too, when the inquiring authority submitted enquiry report on 01.07.2010 to the effect, that the sole charge against the respective applicants covered by this batch is not proved. There is no reasonable or satisfactory explanation for the delay of about 13 years in concluding the disciplinary proceedings. It is not even the case of the 1st respondent that the delay was on account of the delaying tactics on the part of the applicants covered by this batch or that the applicants covered by this batch are in any way responsible for the delay. 10. In the light of the well enunciated principles of law laid down by the Supreme Court on the effect of the inordinate and unexplained delay both in initiation and conclusion of the disciplinary proceedings and in the light of the fact that any amount of prejudice is caused to the applicants covered by this batch who are retired from service, the respective charge memos and the impugned order of punishment vide G.O.Rt. No. 193 dated 09.02.2007, G.O. Rt.No. 191 dated 09.02.2007 and G.O.Rt. No. 376 PR&RD (Vig.IV) department dated 15.04.2015 respectively, are liable to be set aside. 11. Learned counsel for the petitioner further submitted that the ground for disagreement mentioned in Government Memo No. 13984/Vig.III/ 2005-15 dated 16.07.2012 and Memo No. 13984/Vig.III/2005-14 dated 16.7.2012 is not sufficient ground to disagree with the findings of the Enquiry Officer and that the said ground for disagreement is beyond the scope of the charge and other than the charges mentioned at Charge Memo. 12. 12. It is not in dispute that the Commissioner of Inquiries who was appointed as Enquiry Officer, after conducting the enquiry in terms of Rule-20 of CCA rules, 1991, in the said enquiry dated 01.07.2010 clearly and categorically stated that the respective sole charge against the charged officers including the applicants covered by this batch of two OAs as charged officers and are not proved. The ground for disagreement reads this: “....that whatever may be the reasons for the failure of the contractor to excavate sand for certain period during the period covered by lease agreement, if at all it has really happened so; the DPO should not have blindly implemented the decision of District Level Sand Committee, as the decision given is against the rules. The DPO has not followed the Rules, since he has taken local issues into consideration and not acted strictly within the rigid frame work of the lease agreements.” 13. As per the above said ground, the Government admitted that four applicants in this batch of two OAs in their capacity as District Panchayat Officers, Kadapa, during their tenure, implemented the decision of the District Level Sand Committee. As can be seen from the nature of the charge, the ground for disagreement is not part of the charge and it is beyond the scope of enquiry. The Government, if not satisfied with the findings of the inquiring authority on the charge, ought to have recast the charge and remitted back for fresh enquiry. 1st respondent, under law, has no right or authority to disagree with the findings of the inquiry authority on the aspect which is not covered by the charge and then impose the penalty. 14. It is further submitted that in view of the exonerating two out of six delinquents Sri L. Sreedhar Reddy and Sri Venkateswarao from charges and setting aside of the impugned charge by the Tribunal against two others, the petitioner is also entitled to avail the same benefit due to the reason that they all are similarly situated persons and in addition to this, the Commissioner of Enquires specifically held that there is no fault on the part of the petitioner and no charge is proved against the petitioner. Therefore, the present writ petition is liable to be allowed. 15. Therefore, the present writ petition is liable to be allowed. 15. On the other hand, the learned Government Pleader for the respondents submitted that in view of the report of Director General (Vigilance and Enforcement) dated 30.08.2005, the disciplinary proceedings were initiated against the petitioner as well as other five individuals. As per the said report a charge is framed against the petitioner as per which the petitioner caused loss of Rs.54,025/- to the exchequer by not collecting the proportionate bid amount for the subject sand quarry. He further submitted that the extension of lease for second year from 22.07.2003 to 21.07.2004 is not permitted under the rules beyond the existing lease period i.e. 30.09.2001. He further submitted that an enquiry officer was appointed vide G.O.Rt. No. 1406 PR & RD (VIG.III) Department, dated 12.09.2008 for conducting enquiry upon the charges framed against the petitioner and others under Rule 22 read with Rule 24 of APCS (CCA) Rules, 1991. He further submitted that the respondent No. 1 being a disciplinary authority is also empowered to disagree with the findings of Commissioner of Enquiries basing upon the material available on record along with enclosures. 16. The learned Government Pleader for the respondents further submitted that on 16.07.2012 the disciplinary authority communicated the disagreement factors to the petitioner. Therefore, the contention of the petitioner that once the enquiry officer exonerated the petitioner from the charges, the disciplinary authority cannot deviate from the findings of the enquiry officer and cannot impose any penalty is not sustainable. He further submitted that the proceedings issued for disagreement of factors dated 16.07.2012, for which the petitioner submitted his explanation on 31.08.2012. After considering his explanation, the disciplinary authority issued G.O.Rt. No. 2123, PR&RD (VIG.III) Department, dated 23.12.2013 imposing punishment of stoppage of four annual grade increments with cumulative effect under Rule 9(6) of APCS (CCA) Rules, 1991, does not warrant any interference of this Court. He further submitted that after having detailed enquiries by Director General of Vigilance and Enforcement as well as the Commissioner of Enquiries and after perusing the entire material, the present impugned G.O.Rt. No. 2123 was issued after following the procedure as contemplated under the APCS (CCA) Rules, 1991 and the present writ petition is liable to be dismissed. 17. He further submitted that after having detailed enquiries by Director General of Vigilance and Enforcement as well as the Commissioner of Enquiries and after perusing the entire material, the present impugned G.O.Rt. No. 2123 was issued after following the procedure as contemplated under the APCS (CCA) Rules, 1991 and the present writ petition is liable to be dismissed. 17. Heard the submissions made by the learned counsels for both the parties and on perusal of the material placed before this Court, this Court can safely come to conclusion that the regular enquiry ended by holding that no charges are proved against the petitioner and other delinquents. It is not out of the place to mention here that two other delinquents against whom the same charge was framed were exonerated from the charge by the respondents and the same can be extended to others as pleaded by the petitioner should be considered and valid. The action of the respondents in disagreement with the findings of the Enquiry Officer and imposing punishment by way of impugned order is contrary to Rule 21(1) and (2) of the APCS (CCA) Rules, 1991. As per the APCS (CCA) Rules, once the disciplinary authority is disagreement with the findings of the enquiry officer, mere disagreement and issuing an order to that effect is not sufficient, the disciplinary authority shall give reasons and its cohesion for such disagreement regarding each charge or misconduct and furnish the copy of the Enquiry Report to petitioner for representation or otherwise. More so, the authority should be ordered regular enquiry afresh as per Rule 21(1) of APCS (CCA) Rules, 1991. But, it cannot proceed as it is and as if it empowered to impose punishment by mere observing that disagreed with the findings of the Enquiry Officer. The fact remains is that the respondent authority herein simply disagreed with the findings of the Enquiry Officer and imposed punishment against the petitioner is contrary to the Rule 21(1) and (2) of APCS (CCA) Rules, 1991. 18. The other contention of the petitioner that the benefit of exonerating from charges so extended in favour of Sri L. Sreedhar Reddy and Sri Venkateswararo and not extended the same to the petitioner is nothing but in violation of Article 14 of the Constitution of India is valid and to be upheld. 19. 18. The other contention of the petitioner that the benefit of exonerating from charges so extended in favour of Sri L. Sreedhar Reddy and Sri Venkateswararo and not extended the same to the petitioner is nothing but in violation of Article 14 of the Constitution of India is valid and to be upheld. 19. In the light of the above discussion, this Court has no hesitation in coming to a positive conclusion that the impugned penalty of stoppage of four annual grade increments with cumulative effect on the petitioner vide impugned GO.Rt.No. 2123 PR&RD (Vig.III) department dated 23.12.2013 and charge memo vide G.O.Rt. No. 195 PR&RD (Vig.III) department dated 09.02.2007 is incorrect, invalid, illegal, unsustainable and therefore, liable to be set aside. 20. In the light of the finding on the point, the impugned charge memo vide G.O.Rt. No. 195 PR&RD (Vig.III) department dated 09.02.2007 and the impugned order of penalty vide G.O.Rt. No. 2123 PR&RD (Vig.III) department dated 23.12.2015 are set-aside with all consequential benefits. 21. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. 22. As a sequel thereto, interlocutory applications pending, if any in the writ petition, shall also stand closed.