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2023 DIGILAW 15 (AP)

D. Ankineedu v. Assistant Director (V. & S. )

2023-01-03

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. This writ petition is filed to declare the action of the respondents in not counting the past service of the petitioner for calculating the seniority, pensionary benefits, etc. As per the proceedings of the 3rd respondent dated 26.03.2018, as illegal and arbitrary and contrary to A.P.S.R.T.C. Employees (Classification, Control and Appeal) Regulations, 1967 (for short “the Regulations, 1967”). 2. Heard Sri M. Lakshminarayana, learned counsel for the petitioner, and Sri P. Durga Prasad, learned standing counsel for APSRTC appearing for the respondents. 3. Learned counsel for the petitioner would submit that the petitioner was initially appointed as Security Constable in the respondent-corporation on 05.02.1999 and later, his services were regularised. While so, the 1st respondent issued a charge memo to the petitioner on 24.11.2016 based on a preliminary enquiry behind the back of the petitioner alleging that the petitioner is carrying out outsourcing contract works in benami names in APSRTC depots and withdrawing the salary amounts from the bank accounts of outsourcing workers duly keeping their ATM cards and passbooks with him. On receipt of the charge memo, the petitioner submitted a reply to it stating that basing on an anonymous complaint, the enquiry cannot be conducted as per the circulars of the respondent-corporation and the allegations levelled against him are false. Without satisfying with his reply, the 1st respondent appointed an Enquiry Officer, who conducted enquiry and submitted a report dated 09.02.2017 purely basing upon the preliminary enquiry report as also without recording the statements of the witnesses and concluded that the charges were proved. i) The learned counsel for the petitioner would also submit that in pursuance of the enquiry report dated 09.02.2017, the 1st respondent imposed punishment of removal of the petitioner from service on 30.03.2017. Aggrieved by the same, the petitioner preferred an appeal before the 2nd respondent who rejected the appeal on 25.10.2017. Against which, the petitioner filed a revision petition before the 3rd respondent who partly allowed the revision petition by an order dated 26.03.2018, by ordering the reinstatement of the petitioner into service as a fresh candidate. ii) The learned counsel for the petitioner would contend that the Enquiry Officer conducted the enquiry only basing upon assumptions and presumptions and purely depending upon the preliminary enquiry report which is against the principles of fair enquiry and the same is bad under law. ii) The learned counsel for the petitioner would contend that the Enquiry Officer conducted the enquiry only basing upon assumptions and presumptions and purely depending upon the preliminary enquiry report which is against the principles of fair enquiry and the same is bad under law. He would further contend that there is no evidence before the Enquiry Officer to prove that the petitioner is a benami outsourcing contractor and that no worker/an outsourcing employee whose ATM cards are alleged to have been held by the petitioner, was examined as a witness to prove that the petitioner was keeping the ATM cards of the workers with him. Further, the 2nd respondent, without following the Regulations, 1967, rejected the appeal of the petitioner. The learned counsel would also contend that by the imposition of major penalty of removal from service, the petitioner lost his 18 years of service which would affect his seniority and pensionary benefits. He would contend that the impugned proceedings are against Regulation 8(1) of the Regulations, 1967. On this ground, the impugned proceedings are liable to be set aside. iii) The learned counsel would also contend that basing on an anonymous complaint, no disciplinary action can be initiated against the employees as per Rule 6 of Central Vigilance Commission’s Guidelines (CVC guidelines) dated 29.06.1999, which envisages that no action should at all be taken on any anonymous or pseudonymous complaints and they must just be filed. Pursuant to the CVC guidelines, the respondent-corporation issued a Circular dated 23.04.2007, Rule 4 of which specifies that it is necessary to exercise more care in dealing with such anonymous petitions so that the morale of employees having good reputation and known integrity cannot be effected. Subsequently, the respondent-corporation issued another Circular dated 03.02.2000 wherein it is stated that because of the orders of Government of Andhra Pradesh and to fall in line with the procedure adopted by the Government, it was decided to adopt the same procedure in APSRTC also and that all Controlling Officers of APSRTC are hereby instructed not to take action on anonymous and pseudonymous complaints against employees of the corporation and they should just be filed. 4. 4. Per contra, learned standing counsel for the respondent-corporation would submit that the petitioner was involved in doing contract works in the benami names, and he is withdrawing the salary amounts from the bank accounts of the contract workers duly keeping their ATM cards and bank passbooks with him. The petitioner also submitted fake acquaintance receipts in respect of payment of wages to the contract workers. The said illegal activities are contrary to the rules and regulations, besides creating indiscipline among other security personnel and tarnishing the reputation of the security wing. Hence, the petitioner was removed from service duly following the principles of natural justice. The mercy petition filed by the petitioner was considered on humanitarian grounds by the 3rd respondent and the 3rd respondent modified the orders of removal to that of reinstatement of the petitioner as a fresh RTC constable. Having accepted the orders of the 3rd respondent, now the petitioner has no right to question the same and cannot claim the benefit of his past service. In support of his contention, the learned standing counsel relied on the decision of the erstwhile High Court of A.P. at Hyderabad in P. Habeeb Saheb Vs. A.P.S.R.T.C., 1995 (1) ALT 553 (S.B). The learned standing counsel would also submit that the explanation submitted by the petitioner to the charge memo was not convincing. However, to provide further opportunity to the petitioner, a detailed domestic enquiry was called for. Further, the petitioner did not raise any dispute before the Labour Court regarding the validity of the domestic enquiry. Without availing such alternative remedy under the Industrial Disputes Act, he invoked the extraordinary jurisdiction of this Court. There are no justifiable grounds in the writ petition and the same is liable to be dismissed. 5. The contention of the learned counsel for the petitioner that the respondent-corporation cannot impose punishment of “appointment afresh” which is unknown to the Regulations, 1967, in view of the ratio laid down by the Hon’ble Apex Court as well as this Court as below. As seen from Regulation 8 of the Regulations, 1967, it is clear that the penalties which may, for good and sufficient reason, be imposed upon an employee are those enumerated in Regulation 8(1). This issue was discussed at length by this Court in K.C.Narayana Vs. As seen from Regulation 8 of the Regulations, 1967, it is clear that the penalties which may, for good and sufficient reason, be imposed upon an employee are those enumerated in Regulation 8(1). This issue was discussed at length by this Court in K.C.Narayana Vs. Manging Director, APSRTC, Hyderabad, 2007 (5) ALD 416 , wherein it is held in paras 6, 8, 14, 15 and 18 as follows: “6. Since the question raised in this writ petition, whether a punishment not prescribed under the statutory regulations could be imposed on a delinquent employee, is a matter which would affect a large number of employees, at the request of this Court, Sri M. Panduranga Rao, learned Counsel appeared as amicus curiae. Learned Counsel would submit that the judgment of this Court in G. Sambasiva Rao's case (supra), was no longer good law in view of the later judgment of the Supreme Court in State Bank of India and Ors. v. T.J. Paul MANU/SC/0313/1999 : (1999) IILLJ 514 SC. Learned Counsel would submit that since the Regulations governing employees of the A.P.S.R.T.C., are statutory in nature, the competent authority, while exercising the quasi-judicial powers conferred on him under the statutory rules, was required to strictly adhere to the statutory rules and, since the nature of punishment to be imposed has been specifically enumerated therein, it was not open to the disciplinary/appellate/reviewing authorities to deviate therefrom or to impose a punishment not specifically provided for under the statutory regulations. 8. It is clear therefrom that the penalties which may, for good and sufficient reason, be imposed upon an employee are those enumerated in Regulation 8(1). Regulation 9 details the circumstances under which the penalties may be imposed and Regulation-10 the authorities competent to impose penalties. That the punishment of "appointment afresh" is not one among the enumerated penalties is not in dispute. 14. In the aforesaid case, a conductor of the A.P.S.R.T.C. was initially imposed punishment of removal from service and the appellate authority, while setting aside the order of removal, had directed that he be reinstated and posted to Macherla Depot to work for five years and awarded him the punishment of being placed in the minimum scale of conductor. 14. In the aforesaid case, a conductor of the A.P.S.R.T.C. was initially imposed punishment of removal from service and the appellate authority, while setting aside the order of removal, had directed that he be reinstated and posted to Macherla Depot to work for five years and awarded him the punishment of being placed in the minimum scale of conductor. While holding that the appellate authority had the discretion to impose even a non-specified penalty in substitution of the specified penalty imposed by the Disciplinary Authority provided such penalty was one which fell between the minimum and maximum penalty enumerated in Regulation 8(1) of C.C.A. Regulations, the learned Judge held that the punishment imposed fell within Clause (vii) of Regulation 8(1) of C.C.A. Regulations. 15. I am unable to agree with the observations that the appellate authority, in exercise of the powers under Regulation 27, has the discretion to impose even a nonspecified penalty provided it falls within the minimum and maximum penalty specified in the regulations. It is well settled that statutory authorities must exercise their powers strictly in accordance with the statute or the statutory rules and that exercise of power contrary thereto would be ultra vires and illegal. Exercise of discretion can only be in accordance with law and unbridled and unfettered discretion would fall foul of the equality clauses under Articles 14 and 16 of the Constitution. This question, however, does not necessitate further examination, as the learned Judge has also held that the punishment imposed fell within the enumerated punishments under Regulation-8. 18. In view of the judgment of the Supreme Court in T.J. Paul's case (supra), the earlier judgments of this Court taking a contrary view must be held no longer as good law and as a result the impugned order of the reviewing authority, appointing the petitioner as a conductor afresh, must necessarily be set aside and the matter remanded to the 2nd respondent for his consideration on the question of penalty.” 6. The said principle was also upheld by the Hon’ble Apex Court in State Bank of India Vs. T.J. Paul, AIR 1999 SC 1994 . In para 20 of its judgment, it is held thus: “20. The said principle was also upheld by the Hon’ble Apex Court in State Bank of India Vs. T.J. Paul, AIR 1999 SC 1994 . In para 20 of its judgment, it is held thus: “20. Learned senior counsel for the appellants Sri T.R. Andhyarujina tried to submit that if the appellate authority decided not to dismiss the respondent, it still had inherent power to award a punishment of 'removal', which was lesser in severity. Learned senior counsel contended that the discretion of the authorities to award such an appropriate punishment could not be interfered with in view of the decision of this court in Union of India v. Ganayutham MANU/SC/0834/1997 : (2000) IILLJ 648 SC. In our view, this decision is not applicable to the facts of the case. Here the Court is not interfering with the punishment awarded by the employer on the ground that in the opinion of the Court the punishment awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the punishments has been fixed by the rules themselves, namely, the Rules of the Bank of Cochin and the Court is merely insisting that the authority is confined to the limits of its discretion as restricted by the Rules. Inasmuch as the Rules of the Bank of Cochin have enumerated and listed out the punishments for 'major misconduct', we are of the view that the punishment of 'removal' could not have been imposed by the appellate authority and all that was permissible for the Bank was to confine itself to one or the other punishments for major misconduct enumerated in para 22(v) of the rules, other than dismissal without notice. This conclusion of ours also requires the setting aside of the punishment of 'removal' that was awarded by the appellate authority. Now the other punishments enumerated under para 22(v) are 'warning or censure or adverse remark being entered; or fine; or stoppage of increments/ reduction of basic pay or to condone the misconduct and merely discharge from service. The setting aside of the removal by the High Court and the relief of consequential benefits is thus sustained. The matter has, therefore, to go back to the appellate authority for considering imposition of one of the other punishment in para 22(v) other than dismissal without notice.” 7. The setting aside of the removal by the High Court and the relief of consequential benefits is thus sustained. The matter has, therefore, to go back to the appellate authority for considering imposition of one of the other punishment in para 22(v) other than dismissal without notice.” 7. The other contention of the learned counsel for the petitioner that the conducting of domestic enquiry by the respondent-corporation basing upon an anonymous complaint by a third party is against its Circulars dated 23.04.2017 and 03.02.2000 under which no action on anonymous and pseudonymous complaints shall be taken against employees of the corporation and they should just be filed. These two Circulars were issued pursuant to the CVC guidelines dated 29.06.1999 issued by the Central Vigilance Commissioner which is in force. In view of the same, the entire action initiated against the petitioner is illegal and arbitrary and the contentions of the learned counsel for the petitioner are valid and sustainable and also substantive. 8. The further contentions of the learned counsel for the petitioner that the Enquiry Officer conducted the enquiry only basing upon assumptions and presumptions and purely basing upon the preliminary enquiry report which is bad under law; that there is no evidence before the Enquiry Officer to prove that the petitioner is a benami outsourcing contractor; and that no worker/employee was examined as a witness to prove that the petitioner was keeping the ATM cards of the workers with him, is acceptable and tenable, in view of the fact that the respondent-corporation failed to place on record the preliminary enquiry report and the domestic enquiry report to establish that the allegations levelled against the petitioner are proved. 9. The punishment of removal of the petitioner from service was based on the preliminary enquiry report only. The purpose of preliminary enquiry is only to initiate disciplinary proceedings, but not for any other purpose. Basing upon the preliminary enquiry report, no punishment can be imposed. Therefore, the punishment of removal of the petitioner basing upon preliminary enquiry is vitiated. The Division Bench of this Court had dealt with this aspect elaborately in K. David Wilson Vs. Secretary to Government, Law Department (Legislative Affairs and Justice), Hyderabad, 2013 SCC Online AP 1151, wherein it is held in paras 26, 27 and 28 as under: 26. Therefore, the punishment of removal of the petitioner basing upon preliminary enquiry is vitiated. The Division Bench of this Court had dealt with this aspect elaborately in K. David Wilson Vs. Secretary to Government, Law Department (Legislative Affairs and Justice), Hyderabad, 2013 SCC Online AP 1151, wherein it is held in paras 26, 27 and 28 as under: 26. It is trite, the preliminary report was only to decide and assess whether it could be necessary to take disciplinary action against the petitioner-delinquent and it does not form any foundation for passing the order of removal against the petitioner-delinquent. This Court speaking through one of us. (S.R Nayak, J) in The Depot Manager v. Sri Mohd. Ismail and another, MANU/AP/0242/1996 : (1997) ILLJ 1192 AP (DB), dealing with the nature of the preliminary enquiry and the evidentiary value of the materials and information collected in such enquiry held- "Preliminary enquiry is neither a judicial nor a quasi-judicial act; it is purely an administrative action. The purpose of holding departmental enquiry is to decide whether the disciplinary action should or should not be taken against a delinquent employee. The said enquiry results in either punishment or exoneration of the employee concerned. On the other hand, the purpose of a preliminary enquiry is to find out whether there is sufficient justification for embarking on a full-fledged departmental enquiry against a particular employee. Such a preliminary enquiry does not result either in exoneration or punishment, but it merely guides the employer whether to proceed against a particular employee or not, and its purpose is to see whether a prima facie case is made out for issuing a charge-sheet calling for explanation. In other words, the purpose of preliminary enquiry is for the personal satisfaction of the Disciplinary Authority to enable him to come to a decision whether the matter should be dropped or any further action should be taken. It is also relevant to note that there is no obligation on the part of the Disciplinary Authority to disclose the materials and evidence collected in the course of the preliminary enquiry to the delinquent. There is no obligation cast on the Disciplinary Authority to disclose its findings in the preliminary enquiry. It is also relevant to note that there is no obligation on the part of the Disciplinary Authority to disclose the materials and evidence collected in the course of the preliminary enquiry to the delinquent. There is no obligation cast on the Disciplinary Authority to disclose its findings in the preliminary enquiry. But, the satisfaction arrived at and the materials and the evidence collected in the preliminary enquiry may be a basis for initiating departmental enquiry and if the Disciplinary Authority wants to make use of the materials and evidence collected in the preliminary enquiry against the delinquent in the departmental enquiry, then, law requires that such materials and evidence should be disclosed to the delinquent and the delinquent should be given a reasonable opportunity to have his say regarding those materials". 27. It is well settled that the disciplinary authority cannot make use of any material or evidence collected by it in the course of preliminary enquiry against the delinquent official unless those materials and evidence are produced and proved in accordance with law in the regular departmental enquiry and the delinquent employee is given a fair opportunity to meet those adverse materials and evidence. In the instant case this well settled rule governing departmental enquiry is completely breached. On that count also, the departmental enquiry conducted against the petitioner is vitiated. 28. A departmental enquiry conducted for the purpose of disciplinary action against a public servant is not an empty formality. It is a serious proceeding intended to give the delinquent a chance to meet the charges and prove his innocence. The right of the delinquent officer to cross-examine witnesses who give evidence against him is a valuable right and in order to effectively exercise this right, it is necessary that the examination-in-chief of the witnesses should be recorded in the presence of the party against whom the deposition is made. An enquiry wherein examination-in-chief has been recorded in the absence of the person charged though he is allowed to cross-examine the witness, cannot be said to have been held in accordance with the rules of natural justice………………………………..” 10. An enquiry wherein examination-in-chief has been recorded in the absence of the person charged though he is allowed to cross-examine the witness, cannot be said to have been held in accordance with the rules of natural justice………………………………..” 10. The contention of the learned standing counsel for the respondent-corporation that there is no pleading regarding the imposition of punishment against the petitioner basing upon anonymous/pseudonymous complaints, cannot be sustained, in view of the own Circulars referred to supra issued by the respondent-corporation prohibiting any punishment basing upon such complaints. The other contention of the learned standing counsel that the impugned orders came to be passed taking into consideration the mercy petition and hence, now the petitioner cannot question the impugned orders, is also not tenable, in view of the fact that holding that the punishment of removal is excessive regarding the offence committed by him, taking a lenient view, the 3rd respondent modified the punishment of removal from service to that of reinstatement into service as a fresh RTC Constable basing upon the revision/further appeal petition as per the Appeal Rules of the Corporation but not mercy petitions as alleged. 11. Learned standing counsel for the respondent-corporation relied on the judgment of a learned Single Judge of this Court in P.Habeeb Saheb case (supra). The Division Bench of this Court referred the said judgment in K.C.Narayana case (supra) and observed at para 9 of its judgment that in the said case, while noting that the order of punishment of removal from service was confirmed in revision, the Division bench held that as long as the order of removal stands, it could not be said that the reviewing authority had either modified the order of punishment or in any other way interfered with it. 12. In view of the foregoing discussion, this Court is of the opinion that the order passed by the 3rd respondent dated 26.03.2018 and the consequential order dated 09.04.2018 passed by the 1st respondent are liable to be set aside. 13. Accordingly, the Writ Petition is allowed and the order passed by the 3rd respondent dated 26.03.2018 and the consequential order dated 09.04.2018 passed by the 1st respondent are set aside. 13. Accordingly, the Writ Petition is allowed and the order passed by the 3rd respondent dated 26.03.2018 and the consequential order dated 09.04.2018 passed by the 1st respondent are set aside. The matter is remanded back to the 3rd respondent with a direction to examine the records and determine the appropriate punishment to be imposed on the petitioner strictly following the Regulations, 1967, within a period of three months from the date of receipt of a copy of this order. Needless to state that since the petitioner has been continuing according to the order of the Reviewing Authority to appoint him afresh as a Constable, status-quo as on today shall continue till final orders are passed by the 3rd respondent regarding the proposed action on the petitioner. No order as to costs. Consequently, miscellaneous applications, if any, pending shall stand closed.