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2022 DIGILAW 597 (AP)

P. Yesu Das v. State of Andhra Pradesh

2022-07-01

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: '.....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the inaction of the respondents in denying the candidature of the petitioner for promotion to the post of Joint Director Industries and Commerce (I & C) Department, in the ensuing counseling consequent on setting aside the punishment orders issued in G.O. Rt. No. 233 Industries & Commerce (Vigilance) Department, dated 01.12.2020, by this Hon'ble Court in W.P. No. 15043 of 2021, dated 09.08.2021 in the absence of pendency of any punishment orders/disciplinary proceedings as illegal, arbitrary and in violative of principles of natural justice and consequently direct the respondents to consider the candidature of the petitioner for promotion to the post of Joint Director in the ensuing DPC conducting pursuant to U.O Note dated 21.11.2021 without reference to the further action in relation to the set-aside punishment orders dated 01.12.2020 and pass such other orders.' 2. Heard Mr. Ramalingeswara Rao Kocherlakota, learned counsel for the petitioner and learned Government Pleader for the Services-I for the respondents. 3. The brief facts of the case are that the petitioner was joined as Industrial Promotional Officer on 05.01.1989 in Director Industries and Commerce, (DIC) Department at Kurnool. Subsequently he got promotions and at present he is working as General Manager, GM (FAC) District Industries Centre, Guntur. While the petitioner was working as Assistant Director at Nellore for the incident relates to the year 2003, the 2nd respondent issued a Charge Memo dated 24.09.2007 and framed charges alleging that he committed irregularity by diverting the coal to black market and violated the provisions under Rule-3 of APCS (Conduct) Rules, 1991. The petitioner submitted explanation on 12.10.2007 and detailed enquiry was conducted. As against the enquiry report, the petitioner submitted explanation on 30.12.2013 requested the 2nd respondent to drop further action. Subsequently no progress in the matter and hence the petitioner made representations dated 24.08.2017 and 13.05.2019, but no action taken by the respondents. In the meanwhile, the 1st respondent issued impugned order dated 21.11.2021 to convene the Screening Committee Meeting to consider the names of the Deputy Directors of Industries for promotion to the post of Joint Directors of Industries during the panel year 2021-2022, which is illegal and arbitrary. In the meanwhile, the 1st respondent issued impugned order dated 21.11.2021 to convene the Screening Committee Meeting to consider the names of the Deputy Directors of Industries for promotion to the post of Joint Directors of Industries during the panel year 2021-2022, which is illegal and arbitrary. Hence the writ petition came to be filed. 4. Per contra, the 2nd respondent filed counter affidavit denying all material averments made in the writ affidavit and mainly contended that this Court by its order dated 09.08.2021 set aside the G.O. Rt. No. 233, dated 01.12.2020 issued by the 1st respondent and the matter is remanded to State Government for fresh consideration of the issue after taking into account the explanation offered by the petitioner on 30.12.2013 and afford opportunity to submit any additional explanation. The Charge Sheet pending against the petitioner is not dropped. As the punishment is set aside, the Departmental Promotion Committee appointed by Government can decide promotion if eligible in terms of Para 5 (B)(i) of G.O. Ms. No. 257 and made recommendations. Further contended that the office looking after vigilance matters in the office are changed several times, because of administrative grounds and as the records are voluminous in nature, thorough examination is required to offer remarks to the 1st respondent with the facts of the case, however said file is under process to submit the remarks to the 1st respondent. The respondent submitted DPC proposal to Government dated 12.09.2021, which is competent authority to take decision on the promotion of the individual like petitioner. Therefore, requested to dismiss the writ petition. 5. Learned counsel for the petitioner relied on a decision of the Hon'ble Supreme Court in the case of 'P.V. Mahadevan Vs. Md. T.N. Housing Board (2005) 6 SCC 636 . In elaboration, it is further contended that without taking into consideration the material available on record, including the explanation offered by the petitioner, the respondent inflicted the subject punishment and the said action is a clear contravention of Article 14 of the Constitution of India. 6. Learned Government Pleader for Service-I contended that there is absolutely no illegality nor there exists any procedural infirmity in the impugned action and in the absence of the same, the order impugned is not amenable for any judicial review under Article 226 of the Constitution of India. 6. Learned Government Pleader for Service-I contended that there is absolutely no illegality nor there exists any procedural infirmity in the impugned action and in the absence of the same, the order impugned is not amenable for any judicial review under Article 226 of the Constitution of India. It is further contended that having regard to the grievous nature of the charge and having regard to the findings of the enquiry officer, the impugned punishment is in commensurate with the charge leveled against the petitioner. It is further contended that only after meticulously considering the entire material available on record, 1st respondent passed the impugned order of punishment, as such this court needs no interference under Article 226 of the Constitution of India. 7. Learned counsel for the petitioner placed reliance on the decision of Division Bench of erstwhile High Court of A.P in the case of 'Government of Andhra Pradesh, rep., by its Principal Secretary, Revenue Department and Another Vs. A. Rajeswara Reddy, Deputy Collector, wherein it was held that the disciplinary proceedings initiated against an employee of Government are to be completed within three months in simple cases and in six months in complicated cases, as per policy decision taken by Government vide G.O. Ms. No. 679, General Administration (Services-C) Department, dated 01.11.2008. 8. It is observed by this Court from the counter affidavit that the officers looking after the Vigilance matters in the office are changed several times because of administrative grounds and hence there is delay in taking the decision in the case of the petitioner is not at all a valid ground. Though the petitioner is going to be retire from service on 30.06.2022 on superannuation and charges were framed in the year 2007, against the alleged incident which happened in the year 2003. Hence there is delay in initiating the proceedings from 2003 and subsequently the matter was kept in dark, though the impugned order set aside by this Court in W.P. No. 15043 of 2021, dated 09.08.2021, which shows the conduct of the respondents in concluding the proceedings. Therefore there is clear violation is appeared on the part of the respondents in conducting the proceedings against the petitioner. 9. Therefore there is clear violation is appeared on the part of the respondents in conducting the proceedings against the petitioner. 9. Following the decision cited supra, this Court inclined to dispose of the writ petition, while declaring the action of the respondents in denying the candidature of the petitioner for promotion to the post of Joint Director Industries and Commerce Department in the absence of pendency of any punishment or disciplinary proceedings as illegal, arbitrary and consequently directing the respondents to consider the case of the petitioner for promotion to the post of Joint Director Industries and Commerce Department, pursuant to U.O. Note dated 21.11.2021, within a period of four (04) weeks from the date of receipt of a copy of this order. Since the petitioner has attained superannuation on 31.06.2022, he is entitled all consequential benefits in to. No costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.