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2023 DIGILAW 181 (AP)

Tirumalla Durga Rao v. State of Andhra Pradesh

2023-01-24

K.MANMADHA RAO

body2023
ORDER : This petition is filed under Article 226 of the Constitution of India for the following relief :- “…to Call for records relating to and connected with impugned punishment order issued by the 1st respondent vide G.O.Rt.No.226, dated 13.03.2015 and set aside quash the same duly declaring it, as illegal, arbitrary, unjust discriminatory and violative of Articles 14, 16 and 21 of Constitution of India and contrary to APCS (CCA) Rules consequently direct the respondents to regularize the period of suspension and pay pension and other retiremental benefits including arrears with interest and pass such other order or orders…….” 2. The claim of the petitioner is that initially he was appointed as Library Assistant in Panchayat Raj Department in the year 1968 and since then he has been discharging his duties to the utmost satisfaction of the superiors, and also, he has been transferred to various places. It is further stated that he was entrusted with the work of establishment section and he is no way concerned with the education section. Thereafter, in the year 1997, he was deputed to the education section. After completion of one year of service, a news item was published in daily news paper alleging that certain candidates obtained bogus appointment orders. Basing on that the 2nd respondent has issued proceedings dated 02.09.1998 suspended the petitioner from service along with other employees. Subsequently, the 3rd respondent has issued Charge Memo vide Memo No.345/B-1/98 dated 27.09.1998. Thereafter, the petitioner had submitted his detailed explanation dated 05.10.1999 to the 3rd respondent. Without considering explanation, the petitioner was issued suspension orders and thereafter a criminal case was also lodged against him with some employees vide CC No.110/2000 on the file of JFCM, Kovvur and the same was ended with acquittal. Surprisingly, the 2nd respondent had issued another charge memo vide Rc.No.H3-8906/98, dated 7.5.2001. Thereafter, the petitioner has submitted his explanation. It is stated that after prolonged period of four years, the 1st respondent has referred the case of the petitioner along with others to the Enquiry Officer vide G.O.Rt.No.176, dated 13.10.2005 for conducting departmental enquiry. However, the 1st respondent again cancelled the said orders and issued another orders vide G.O.Rt.No.1809, whereunder directed the 2nd respondent to appoint and conduct enquiry. Accordingly, the enquiry officer conducted enquiry behind back of the petitioner and without providing any opportunity of hearing. However, the 1st respondent again cancelled the said orders and issued another orders vide G.O.Rt.No.1809, whereunder directed the 2nd respondent to appoint and conduct enquiry. Accordingly, the enquiry officer conducted enquiry behind back of the petitioner and without providing any opportunity of hearing. While paying subsistence allowance, contrary to F.R.24 to the utter violation of the settled law by the DB of this Court in a catena of decisions including orders in WP No.7422 of 2005 and WP No.6617 of 2004 the respondents withhold the periodical increments during suspension period and they have not revised pay scales of the petitioner from time to time. Meanwhile, when the enquiry is pending the petitioner retired from service w.e.f. 30.06.2007. Thereafter, after lapse of more than two yeas of conducting enquiry, the authorities woke up and issued proceedings dated 01.07.2008 duly directed the petitioner to submit explanation. It is further stated that the petitioner exonerated from the criminal case in CC No.110/2000 in Cr.No.63/1998 on the file of II AJCM, Kovvur. Again, the petitioner submitted his representation for consideration of his case to drop all further proceedings against him. However, the Government has issued show cause notice dated 05.03.2010 calling explanation. In reply, the petitioner submitted detailed explanation on 27.3.2010. Though the petitioner retired from service in the year 2007 the respondents did not choose to grant provisional pension and other pensionary benefits. Hence, the present writ petition has been filed. 3. The counter affidavits have been filed by the 1st and 2nd respondents denying all the allegations made in the petition and mainly contended that the Government after examining the material on record had decided to take further action as per A.P. Revised Pension Rules 1980 (for short “the Rules”) to impose penalty of withholding pension and gratuity in full and permanently against the petitioner as the charges held proved against the petitioner. A show cause notice was issued to the petitioner under Rule 9 of the Rules vide Govt Memo No.3531/Vig.IV/A1/2004-24, dated 05.03.2010. Thereafter, the petitioner has submitted his explanation dated 27.03.2010 requesting to drop further action against the petitioner stating that he was acquitted from penal case in CC No.110/2000. The petitioner also submitted that the criminal charges and the charges framed by the Government are one and same, he had acquitted from the criminal charges, as such, he had not committed any offence and requested to drop the charges. The petitioner also submitted that the criminal charges and the charges framed by the Government are one and same, he had acquitted from the criminal charges, as such, he had not committed any offence and requested to drop the charges. After examining the explanation of the petitioner, the Government had decided to impose the penalty of withholding Pension and gratuity in fully and permanently against the petitioner under Rule 9 of the Rules. Thereafter, the APPSC have given their concurrence for imposing the proposed penalty against the petitioner through Lr.No.77/Rt/3/2011, dated 14.11.2011. It is also stated that the Government in G.O.Rt.No.266, PR&RD (Vig.III) Department, dated 13.03.2015 have issued orders imposing the penalty of withholding of pension and gratuity in full shape and permanently against the petitioner herein under Rule 9 of the Rules. Hence, the punishment imposed against the petitioner is just and proper and in accordance with the provisions laid down under Rule 9 of the Rules. 4. Heard Sri Mangina Sree Rama Rao, learned counsel appearing for the petitioner and learned Government Pleader for Services-IV, Sri G. Srinivasula Reddy, learned Standing Counsel for ZPP & MPP appearing for the respondents. 5. During hearing, learned counsel for the petitioner while reiterating the contents made in the petition submitted that the respondents have denied releasing of increments and revised pay scales contrary to the rules and settled law while paying subsistence allowance during suspension period and also calculating provisional pension. He further submits that the petitioner has suffered with irreparable loss and financial crunch during the period of prolonged disciplinary proceedings, which are pending for more than a decade. He also submits that, earlier, the petitioner has approached the A.P Administrative Tribunal by way of filing O.A.No.2816 of 2000, and the Tribunal vide order, dated 12.06.2000, directed the respondents to reinstate the petitioner forthwith. However the respondents intentionally slept over the subject matter for decades together and passed the impugned order, which is under challenge. Hence, prayed to set aside the same and pass appropriate orders. 6. Whereas, learned Government Pleader and Standing Counsels also reiterated the contents made in the counter and also contended that the respondents after examining the entire material on record, have issued the proceedings imposing punishment. Hence, prayed to set aside the same and pass appropriate orders. 6. Whereas, learned Government Pleader and Standing Counsels also reiterated the contents made in the counter and also contended that the respondents after examining the entire material on record, have issued the proceedings imposing punishment. Learned counsel also submits that the respondents have followed the procedure and the provisions laid down under Rule 9 of the A.P. Revised Pension Rules 1980 and therefore prayed to dismiss the present petition. 7. Upon perusing the entire material available on record, this Court observed that the respondents cannot discriminate while imposing punishment when the same disciplinary authority find fault with several persons. In the instant case, the discrimination is contrary to the law laid down by the Hon’ble Apex Court in a case of Man Singh vs State of Haryana & Others, Appeal (civil) 3186 of 2008, wherein the Apex Court held that : “We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair-play' and reasonableness As per Rule 9-A, the enquiry has to be initiated against all of them and specific mandate as per Rule 9-A is that the disciplinary proceedings against all of them shall be taken together. The administrative action is to be just on the test of 'fair-play' and reasonableness As per Rule 9-A, the enquiry has to be initiated against all of them and specific mandate as per Rule 9-A is that the disciplinary proceedings against all of them shall be taken together. This Rule 9-A was interpreted by me in W.P.(MD).No.7828 of 2009 dated 23.12.2009 in the case of R.NEETHIRAJAN v. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PROMOTION COMMITTEE and held that unless the disciplinary proceedings are initiated against all the co-delinquents together, it amounts to violation of Rule 9-A and therefore, the charge memo issued by the authority is not in accordance with law. 8. The principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also, as already pointed out, there is a clear discrimination in awarding punishment to the petitioner. it is also pertinent to mention here that the similarly situated person one Sri K.V.V. Satyanarayana, who also placed under suspension along with the petitioner on the same allegations, he has been exonerated from criminal case taking into consideration the same the said person reinstated into service by the very same G.O.Rt.No.289, dated 17.02.2012 issued by the 1st respondent and released all consequential monetary benefits. 9. In a case of Prem Nath Bali Vs Registrar, High Court of Delhi, Civil Appeal No.958 of 2010, dated 16.12.2015, wherein the Hon’ble Apex Court held that the disciplinary proceedings should be concluded that against the delinquent employee within a reasonable time as far as possible within six months, if not possible due to certain unavailable causes arising in the proceedings with the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year” 10. This Court observed that the alleged charge pertaining to the year 1998, the charge memo issued in the year 2001. It seems that there is inordinate and unexplained delay of 3 years in issuing chare memo itself, it is settled law that the delay defeats justice and hence the same is liable to be set aside. This Court observed that the alleged charge pertaining to the year 1998, the charge memo issued in the year 2001. It seems that there is inordinate and unexplained delay of 3 years in issuing chare memo itself, it is settled law that the delay defeats justice and hence the same is liable to be set aside. It is also observed that there is inordinate and unexplained delay in concluding the disciplinary proceedings for more than above 16 years, further the impugned punishment orders issued on the petitioner after 8 years of retirement, due to belated enquiry the petitioner did not put forth his evidence effectively, the inordinate delay in issuing charge memo itself amounts to denial of opportunity as such the entire disciplinary proceedings are vitiated. Since the charges framed against the petitioner in departmental enquiry are similar to the charges alleged in the charges in criminal case, as the petitioner has already acquitted from the criminal charges the departmental proceedings based on the same charges are liable to be quashed. 11. In view of the above discussion, this Court observed that the respondents while imposing a major penalty of withholding of pension and gratuity in full and permanently against the petitioner vide impugned G.O.Rt.No.266, dated 13.03.2015, the procedure as contemplated under Rule 20 of APCS (CC&A) Rules 1991 was not followed and hence the same is declared as illegal and liable to be quashed. 12. Accordingly, the Writ Petition is allowed. The impugned G.O.Rt.No.266 dated 13.03.2015 issued by the 1st respondent against the petitioner is hereby quashed. The respondents are directed to release the pension and gratuity and other pensionary benefits to the petitioner from the date of his retirement till the date of realization of the amounts due to him. The entire exercise shall be completed within eight (08) weeks from the date of receipt of a copy of this order. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.