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2023 DIGILAW 16 (AP)

MKR Vijaya Kumari v. State Of Andhra Pradesh

2023-01-03

A.V.SESHA SAI, DUPPALA VENKATA RAMANA

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JUDGMENT : (A.V. Sesha Sai, J.) 1. In the present Writ Appeal, preferred under Clause 15 of the Letters Patent, the challenge is to the order dated 23.11.2022 passed by the learned Single Judge in W.P.(AT) No.60 of 2021. The petitioner in the aforesaid Writ Petition is the appellant in the instant appeal. 2. The appellant herein is the retired Deputy Director-Regional Deputy Director in Women Development and Child Welfare Department, Government of Andhra Pradesh. The State Government vide Memo No.8880/Estt.A2/99-5, dated 03.02.2000, issued a charge memo, framing the following charges against the writ appellant: “ARTICLE No.I: THAT the said Smt. M.K.R. Vijaya Kumari, while working as Regional Deputy Director, Eluru used to call the minor girl viz., Shaik Begum alias Manjula aged about 14 years when she was kept at Working Women’s Hostel, Eluru, to her residence for domestic work which is against the rules; ARTICLE No.II: THAT Smt. M.K.R. Vijaya Kumari, left the above minor girl alone along with her nephew giving opportunity to him to misbehave and commit rape on the said girl viz., Shaik Begum alias Manjula; ARTICLE No.III: THAT Smt. M.K.R. Vijaya Kumari, with an intention to safeguard her nephew, threatened the minor girl not to disclose the fact and shifted the girl to Mahila Pranganam, Tadikalapudu and tried to screen the offence intimidating the victim and other boarders of Working Women’s Hostel, Eluru for the last several months by misuse of her official position.” 3. In response to the said charge memo, the appellant herein submitted explanation, denying the said charges on 25.07.2000. Thereafter, the State Government appointed an enquiry officer on 26.09.2000, who conducted the enquiry and submitted a report on 20.03.2006, stating that the charges framed against the writ appellant herein could not be proved by the department. 4. Thereafter, the State Government issued a show-cause notice of disagreement vide Memo No.8880/Estt.A3/1999, dated 29.04.2015. Responding to the same, the appellant herein submitted her explanation on 30.06.2015. Subsequently, the Government vide G.O.Rt.No.167, Dept., for Women, Children, Disabled & Senior Citizens (Estt.A3), dated 06.10.2015, passed an order, imposing the punishment of 10% cut in admissible pension for a period of three years on the appellant herein. Assailing the validity of the aforesaid order of punishment, the appellant herein approached the Andhra Pradesh Administrative Tribunal by filing Original Application. Subsequently, the Government vide G.O.Rt.No.167, Dept., for Women, Children, Disabled & Senior Citizens (Estt.A3), dated 06.10.2015, passed an order, imposing the punishment of 10% cut in admissible pension for a period of three years on the appellant herein. Assailing the validity of the aforesaid order of punishment, the appellant herein approached the Andhra Pradesh Administrative Tribunal by filing Original Application. After abolition of the said Tribunal, the said case stood transferred to this Court and numbered as W.P.(AT) No.60 of 2021. The learned Single Judge, by way of order dated 23.11.2022, disposed of the said Writ Petition, setting aside the order of punishment, however, left open to the respondent-authorities to re-enquire and re-examine the matter and pass a reasoned order in accordance with Rules. 5. Obviously, felt aggrieved by the aforesaid order to the extent of permitting the respondents to hold enquiry afresh, the present Writ Appeal is filed before this Court by the writ petitioner. 6. Heard Sri C. Srinivasa Baba, learned counsel for the writ petitioner/writ appellant and Smt. Sumathi, learned Government Pleader for Services-II for the respondents. 7. Learned counsel for the appellant submits that the order of the learned Single Judge to the extent of permitting the respondents to hold enquiry afresh is highly erroneous and contrary to law. It is further submitted in elaboration by the learned counsel that in the absence of proper notice of disagreement as contemplated under Rule 21(2) of the Andhra Pradesh Civil Services (Classification, Control & Appeal) Rules, 1991, the entire proceedings culminated in inflicting the punishment against the writ appellant gets vitiated. It is further submitted by the learned counsel that the criminal prosecution launched against the writ petitioner-appellant herein vide S.C.No.420 of 2000 on the file of the Additional Assistant Sessions Judge, Eluru, ended in acquittal on merits on 03.03.2003. It is also the submission of the learned counsel that the witnesses and the documentary evidence placed before the Sessions Court in the aforesaid Sessions Case and the witnesses and evidence in the departmental proceedings are one and the same. It is also the submission of the learned counsel that the witnesses and the documentary evidence placed before the Sessions Court in the aforesaid Sessions Case and the witnesses and evidence in the departmental proceedings are one and the same. It is further submitted by the learned counsel that pending disciplinary proceedings, pursuant to charge memo dated 03.02.2000, the respondent-authorities also issued another charge memo vide G.O.Rt.No.95, Department for Women, Children (Estt-A2) Disabled & Senior Citizens, dated 22.03.2011 and the same was challenged before the Andhra Pradesh Administrative Tribunal in O.A.No.2492 of 2011 and the Tribunal vide order dated 02.09.2013 had set aside the said charge memo and directed the respondents to regularise the period of suspension from 02.12.1999 to 13.07.2003. Eventually, it is submitted by the learned counsel that having regard to the above aspects, the learned Single Judge ought not to have permitted the respondents herein to enquire afresh. It is also the submission of the learned counsel that the writ petitioner-writ appellant herein retired from service on 31.12.2012 and is aged about 70 years. 8. On the contrary, Smt. Sumathi, learned Government Pleader for Services-II, strongly resisting the Writ Appeal, submits that there is absolutely no error nor there exists any infirmity in the order passed by the learned Single Judge, as such the order of the learned Single Judge is not amenable to any correction under Clause 15 of the Letters Patent. It is further submitted by the leaned Government Pleader that since the learned Single Judge directed the respondents to hold enquiry afresh after giving ample opportunity to the writ petitioner-appellant herein, the same would not cause any prejudice to the appellant, as such the Writ Appeal is liable to be dismissed. It is the further submission of the learned Government Pleader that as the writ petitioner-appellant herein herself stated in her explanation dated 30.06.2015 that the notice dated 29.04.2015 was a notice of disagreement, it is not open for the writ petitioner-appellant herein to dispute the same. 9. In the above background, now the issues that emerge for consideration of this Court in the present Writ Appeal are as follows: 1. Whether the notice dated 29.04.2015 issued by the disciplinary authority, asking the writ petitioner-appellant herein to submit explanation is in accordance with the provisions of Rule 21(2) of the A.P. C.S. (CC&A) Rules, 1991? 2. 9. In the above background, now the issues that emerge for consideration of this Court in the present Writ Appeal are as follows: 1. Whether the notice dated 29.04.2015 issued by the disciplinary authority, asking the writ petitioner-appellant herein to submit explanation is in accordance with the provisions of Rule 21(2) of the A.P. C.S. (CC&A) Rules, 1991? 2. Whether the order of the learned Single Judge to the extent of directing re-enquiry and re-examination, is sustainable and tenable? 3. Whether the appellant is entitled for any relief from this Court in the present Writ Appeal filed under Clause 15 of the Letters Patent? 10. The information available before this Court in lucid and unequivocal terms, reveals that pursuant to the charge memo dated 03.02.2000, the disciplinary authority appointed an enquiry officer in the month of September, 2000 and the said enquiry officer submitted a report on 20.03.2006, holding that the charges framed against the writ petitioner-writ appellant could not be proved by the department. Obviously, disagreeing with the said findings of the enquiry officer, the disciplinary authority issued notice on 29.04.2015, asking the writ petitioner-appellant herein to submit her explanation. In this context, it may be appropriate and apposite to refer to Rule 21(2) of the A.P.C.S. (CC&A) Rules, 1991. Rule 21 of the said Rules deals with the action on the enquiry report. Sub-section (2) of Section 21 deals with the procedure to be followed after submission of the enquiry report in the event of there being any disagreement on the same. Rule 21(2) of the A.P.C.S. (CC&A) Rules, 1991, reads as follows: “The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.” 11. It is very much evident from a reading of the above said provision of law that it is obligatory and mandatory on the part of the disciplinary authority to assign tentative reasons for disagreement. The issue, which needs consideration, is whether the disciplinary authority adhered to the said provision of law. A perusal of the aforesaid notice dated 29.04.2015 shows that except stating that the Government provisionally decided to impose a punishment and that the acquittal in Sessions Case cannot be construed as a clean acquittal, the disciplinary authority did not assign any reasons for disagreement. It is required to be noted that the department also initiated criminal prosecution against the writ petitioner-appellant herein vide Sessions Case No.420 of 2000 on the file of the Court of the Additional Assistant Sessions Judge, Eluru. A copy of the Judgment in the aforesaid Sessions Case is placed on record. A perusal of the said Judgment reveals, in clear and candid terms, that the learned Additional Assistant Sessions Judge acquitted the appellant on the ground that all the witnesses turned hostile and the prosecution failed to prove the guilt of the accused. As the learned Sessions Court cleanly acquitted the writ petitioner-appellant herein in the Sessions Case, the disciplinary authority in the show-cause notice dated 29.04.2015 ought not to have observed in the manner as indicated supra. It is also pertinent to note in this context that, as observed supra, pending disciplinary proceedings pursuant to the charge memo dated 03.02.2000 which culminated in the order impugned in the Writ Petition, substantially on the same charges, an enquiry was contemplated and the appellant herein approached the Andhra Pradesh Administrative Tribunal by way of filing O.A.No.2492 of 2011. The Tribunal vide order dated 02.09.2013, allowed the said O.A., setting aside G.O.Rt.No.95, dated 22.03.2011, with a direction to the respondent-authorities not to proceed with the enquiry on the basis of the said charge memo and also directed the respondents to regularise the period of suspension of the appellant. It is also not in dispute that the order of acquittal in S.C.No.420 of 2000 on the file of the Court of the Additional Assistant Sessions Judge, Eluru, and the order of the Andhra Pradesh Administrative Tribunal in O.A.No.2492 of 2011, have attained finality. It is also not in dispute that the order of acquittal in S.C.No.420 of 2000 on the file of the Court of the Additional Assistant Sessions Judge, Eluru, and the order of the Andhra Pradesh Administrative Tribunal in O.A.No.2492 of 2011, have attained finality. It is also required to be noted that though the writ petitioner-appellant therein submitted an elaborate explanation on 30.06.2015, except indicating the said explanation as one of the references to the order of punishment, the disciplinary authority did not make any endeavour to consider the contents of the same, while passing the order of punishment. In the considered opinion of this Court, having regard to the nature of controversy and the factual scenario, the learned Single Judge ought not to have given liberty to the respondents herein to conduct enquiry afresh. 12. For the aforesaid reasons, the Writ Appeal is allowed and the order of the learned Single Judge dated 23.11.2022 in W.P.(AT) No.60 of 2022 is set aside to the extent of permitting the respondents to re-enquire and re-examine the matter and pass a reasoned order. Consequently, W.P.(AT) No.60 of 2021 is allowed, setting aside G.O.Rt.No.167, Dept., for Women, Children, Disabled & Senior Citizens (Estt.A3), dated 06.10.2015. It is needless to observe that the writ petitioner-appellant herein is entitled for all the consequential benefits. No order as to costs. 13. As a sequel, pending miscellaneous petitions, if any, stand closed.