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2022 DIGILAW 607 (AP)

Mulla Shahudeen v. State of A. P.

2022-07-04

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 Writ of Mandamus declaring the action of the respondents in issuing the impugned proceedings Rc. No. 2008/B1/2016, Dt. 28.11.2018 on the file of the 4th respondents in imposing a penalty of withholding of increment without cumulative effect and treating the period from 15.02.2016 to 04.03,2016 as Dies Non and proceedings Rc No. A1/2019 dt. 09.07.2019 on the file of the 3rd respondent in rejecting Appeal of the petitioner as illegal arbitrary and in violation of conduct rule sand accordingly set aside the same and consequently direct the respondents release all consequential benefits withhold due to the said impugned orders including the regularization of suspension period from 15.03.2016 to 01.10.2016 as on duty.' 2. Brief facts, as averred in the writ petition, are as follows:- The petitioner was appointed as Secondary Grade Teacher(Urdu) on 25.01.2013. Since then, he has been discharging his duties to the satisfaction of higher authorities. While he was working at M.P.P. School (General), Bhupathipalli Village, Markapur Mandal, Prakasam District, he was served with an article of charges on 15.07.2016 vide Rc. No. 2003/B1/2016, dated 22.04.2016, for which, the petitioner submitted his explanation on 19.09.2016 denying the chargers. Subsequently, the Enquiry Officer was appointed to conduct the enquiry into the charges leveled against the petitioner and he submitted report on 06.09.2017 finding that the charges 1, 2, 4, 5, 7 are not proved and charges 3 and 6 are proved. The enquiry report was communicated to the petitioner only after filing an application under the Right to Information Act. Thereafter, the Enquiry Officer gave a questionnaire dated 28.08.2018 to the petitioner asking him to submit his reply, for which, the petitioner submitted his reply denying the allegations. In the impugned order passed by the 4th respondent, the period from 15.02.2016 to 04.03.2016 was treated as 'dies-non', whereas the petitioner submitted his leave application for the said period on medical grounds and it was accepted by the M.E.O. and paid salary to him also. When the 1st charge with regard to unauthorized absence for duties was not proved, treating the said period as dies-non is untenable and it amounts to major punishment. The respondents have not followed the rules in conducting departmental enquiry and passing the impugned orders. When the 1st charge with regard to unauthorized absence for duties was not proved, treating the said period as dies-non is untenable and it amounts to major punishment. The respondents have not followed the rules in conducting departmental enquiry and passing the impugned orders. Though the petitioner has raised several grounds before the Appellate Authority, his appeal was rejected in mechanical manner. Hence, the writ petition. 3. The respondent No. 4 filed counter-affidavit stating that while the petitioner was working at MPP School, Bhupathipalli Village, Markapur Mandal, Prakasam District, he was served with articles of charge dated 22.04.2016, for which the petitioner submitted his explanation dated 19.09.2016 denying all the charges. Subsequently, the 4th respondent appointed an Enquiry Officer and he submitted the report dated 06.09.2017 finding that the charges 1, 2, 4, 5 and 7 are not proved and charges 3 and 6 are proved against the petitioner. He further stated that without taking permission and granting leave by the competent authority, he was absented to his duties from 15.02.2016 to 04.03.2016. Though the petitioner submitted his leave application along with the medical report, he was referred to the Medical Board with a request to the petitioner to appear before the said Board, but he did not appear. There is no irregularity or illegality in passing the impugned orders. Therefore, the writ petition is liable to be dismissed. 4. Heard the learned counsel for the petitioner and learned Government Pleader for Services-III. Perused the material papers on record. 5. Learned counsel for the petitioner submits that, while imposing the penalty, the disciplinary authority has not followed the procedure as contemplated under Rule 20 of the A.P.C.S(CC & A) Rules, 1991. He further submits that whenever an appeal is filed, the same has to be considered independently dealing with the contentions raised in the appeal. He also submits that conducting disciplinary proceedings and appeal are quasi judicial in nature and the authorities are bound to give reasons for considering or rejecting the appeal under the Rules. 6. Per contra, learned Government Pleader for Services-III submits that after conducting the departmental enquiry and affording an opportunity to the petitioner, the 4th respondent passed impugned orders imposing the penalty of withholding of one increment without cumulative effect. Against the said order, the petitioner filed an appeal to the 3rd respondent and it was disposed of confirming the order of 4th respondent. Against the said order, the petitioner filed an appeal to the 3rd respondent and it was disposed of confirming the order of 4th respondent. As such, there is no irregularity or illegality in passing the impugned orders. 7. In view of a close scrutiny of the impugned orders passed by the disciplinary authority, as rightly argued by the learned counsel for the petitioner, that the petitioner was not allowed to cross-examine the witnesses mentioned in the charge memo, which is against the principles of natural justice. Though 1st charge is not proved against the petitioner, the period from 15.02.2016 to 04.03.2016 was treated as dies-non, which is nothing but imposing harsh punishment against the petitioner. The appellate authority, without assigning any reasons, also passed orders mechanically confirming the order of the disciplinary authority. On this ground alone, the writ petition is maintainable. 8. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others AIR 1999 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. 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. Having regard to the facts and circumstances of the case and without going into the merits of the case, the impugned proceedings Rc. No. 2008/B1/2016, dated 28.11.2018 issued by the 4th respondent and proceedings Rc. No. A1/2019, dated 09.07.2019 issued by the 3rd respondent are set-aside and the matter is remanded back to the 4th respondent to conduct elaborate enquiry in accordance with law, within a period of eight (08) weeks from the date of receipt of the order. 10. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.