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2023 DIGILAW 392 (TS)

A. Surender v. Government of Telangana

2023-06-05

SUREPALLI NANDA

body2023
ORDER: Heard learned counsel for the petitioner and learned Government Pleader for Social Welfare. 2. This petition is filed by the petitioner to issue an order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the 1st respondent in not disposing of the petitioner’s representation in setting aside the order passed by the disciplinary authority vide proceedings Rc No.Z-V/Estt./8118/2004, dated 01.10.2010 in dismissing the petitioner from service and appellate authority in confirming the same in Agenda No.14 of the 56th Board of Governors, Meeting held on 12.09.2011 as illegal, arbitrary and unconstitutional and consequently direct the respondents to reinstate the petitioner into service forthwith with all consequential benefits. 3. The case of the petitioner in brief, is as follows: a) Petitioner had been kept under suspension vide order dt. 08.06.2004 vide Proceedings Rc.No.Prl.Estt/8118/2004 on the alleged ground that the preliminary enquiry conducted by the Deputy Secretary on 30.05.2004 found out there are financial irregularities and other administrative lapses. b) Petitioner was reinstated into service on 14.04.2005 after 11 months without conducting any enquiry. Respondents issued a 8 charge, articles of charges against the petitioner. c) The petitioner submitted a detailed explanation denying all the 8 alleged charges framed against the petitioner by the respondents. d) Without considering the said explanation, respondents appointed one of petitioner’s junior Smt C.V.B.Laxmi, who holds 12th rank in the Principals seniority list, (while the petitioner is a 11th rank holder in the principals seniority list dated 30.08.2008), as Enquiry Officer, which is against the Rule 20 of CCS (CC&A) Rules, 1996 and as per Sub-rule 6, competent authority shall appoint Enquiry Officer, who shall be superior in rank to the delinquent employee as an Enquiry Officer. e) The Enquiry Officer without conducting any enquiry submitted enquiry report which has no validity. The enquiry officer had questioned the genuineness of the bills submitted by the petitioner and held the charges against the petitioner as proved. f) On 06.06.2007 petitioner requested the authorities to provide an opportunity to trace out some of the bills and vouchers which were not traced during the enquiry. But, the authorities issued a memo vide Rc.No.CO.I/PROLS/8118/2004 dt. 08.01.2008 instructing the petitioner to submit the vouchers/bills on or before 25.01.2008. Petitioner attended the Head Office on 25.01.2008 and only then the above dated memo was handed over to the petitioner. But, the authorities issued a memo vide Rc.No.CO.I/PROLS/8118/2004 dt. 08.01.2008 instructing the petitioner to submit the vouchers/bills on or before 25.01.2008. Petitioner attended the Head Office on 25.01.2008 and only then the above dated memo was handed over to the petitioner. g) When the petitioner had gone to APSWRIS/JC, Mallapur, Karimnagar, to trace out the bills the incharge Principal denied to show the records as the Principal did not receive any instructions from the authorities. h) The 3rd respondent issued orders vide Proc. Rc.No.Zone-V/Estt/8118/2004, dt. 01.10.2010 imposed the major punishment of dismissal from service without issuing show cause notice, even though the same has been mandated by the Rules. i) Pending proceedings the petitioner was posted at APSW RS/JC (Boys) Koheda and the said Institution had a section of intermediate MPC students along with the students of school section and later on the Institution was upgraded to a college with both MPC and BiPC groups, due to which the strength of Institution enhanced from 414 to 640 students. j) The petitioner was later dismissed based on the submissions of the enquiry officer vide Proc. Rc.No.Zone-V/Estt/8118/2004, dt. 01.10.2010. Aggrieved by the same, petitioner preferred an Appeal before the Appellate Authority, but the Appellate Authority without taking into consideration any of the grounds raised by the petitioner rejected the Appeal relying on the enquiry officer’s report. k) The petitioner also made an appeal to the Chief Minister’s Office, Hyderabad and the said office issued a note No.14671/GEN-GP/2011, dated 21.11.2021 and vide Note No.635/GEN-EM/2012, dated 05.09.2012 directed the Principal Secretary to circulate the file to CM for his orders, but neither the Social Welfare Department nor Secretary, APSWREI Society circulated the same to the respondent authorities. Hence, this writ petition is filed. 4. The counter affidavit filed by the 1st respondent, in brief, is as follows: a) The Government issue G.O.Ms.No.118 Social Welfare (Q) Department, dated 17.11.1983 establishing the A.P. Social Welfare Residential Schools in the State to provide ‘quality education’ to the talented children belonging to scheduled caste community coming mainly from the rural areas. By virtue of G.O.Ms.No.245 Social Welfare (Q) Department, dated 03.10.1986 the State level Society was constituted under the name and style of ‘The A.P. Social Welfare Residential Educational Institutions Society’ (hereinafter referred to respondent society) to supervise, control and manage the Social Welfare Residential Institutions in the State. By virtue of G.O.Ms.No.245 Social Welfare (Q) Department, dated 03.10.1986 the State level Society was constituted under the name and style of ‘The A.P. Social Welfare Residential Educational Institutions Society’ (hereinafter referred to respondent society) to supervise, control and manage the Social Welfare Residential Institutions in the State. The respondent society was registered under the A.P. Public Societies Registration Act, 1350 fasli. The management of the society is vested in Board of Governor’s with Minister for Social Welfare as Chairman and Principal Secretary to Government, Social Welfare Department as Vice Chairman and other Government officials as members. The APSWREI Society is an autonomous body and it is fully funded by the Government and it functions as per provision contained in the Memorandum of Association and Bye-laws, which is a distinct entity and not departmental wing of the State Government. It is instrumentally of a State within meaning of Article 12 of the Constitution of India. b) Certain allegations of financial irregularities and administrative lapses were received against the petitioner and the then Principal APSWRS/JC (G), Mallapur, Karimnagar District and was subsequently was placed under suspension. The Chairman APSWREIS placed the petitioner under suspension and the petitioner submitted detailed explanation to the government and after examination on merits the petitioner was reinstated into duty pending further enquiry and was posted to APSWRS/JC (G) Garrepally, Karimnagar District. c) Based on the preliminary enquiry report article of charges were framed against the petitioner and the petitioner submitted written statement of defence which was not found to be convincing and accordingly as per the disciplinary procedure specified in APCS (CCA) Rules, 1991, Smt. C.V.B. Laxmi was appointed as Enquiry Officer to conduct detailed enquiry into the charges framed against the petitioner. d) Disciplinary authority after going through the charges, written statement of defence of the petitioner, had felt that the petitioner is habituated to committing serious misconduct and after careful examination of the case it was observed, petitioner misappropriated huge amounts of money. The enquiry report had been communicated to the petitioner but petitioner did not submit any further representation even after providing opportunity to furnish further representations. e) As per the instructions issued vide G.O.Ms.No.2, General Administration Dept., dt. The enquiry report had been communicated to the petitioner but petitioner did not submit any further representation even after providing opportunity to furnish further representations. e) As per the instructions issued vide G.O.Ms.No.2, General Administration Dept., dt. 04.01.1999 in all the proved cases of misappropriation, bribery etc., the penalty of dismissal of service should be imposed and thus the petitioner has been placed under suspension at APSWRS/JC (B), Koheda, Karimnagar District, was imposed with punishment of dismissal from service along with recovery of the misappropriated amount of Rs.6,03,398/-. But the petitioner herein denies all the charges and the punishment imposed against him. PERUSED THE RECORD 5. The main prayer as sought for by the petitioner is as follows: (a) declare the action of the 1st respondent in not disposing of my representation in setting aside the order passed by the disciplinary authority vide proceedings Rc.No.ZV/Estt./8118/2004, dated 01.10.2010 in dismissing me from service and appellate authority in confirming the same in Agenda No.14 of the 56th Board of Governors, Meeting held on 12.09.2011 as is illegal, arbitrary and unconstitutional, and the same are liable to be set aside; and (b) consequently direct the respondents to reinstate the petitioner into service forthwith with all consequential benefits in the interest of justice and pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 6. The relevant paras 94, 99 and 104 of the counter affidavit filed by the respondents reads as under: “94. While he was working as Principal at Koheda, Karimnagar District, several complaints have been received to the Secretary, APSWREIS regarding irregularities in financial and administrative matters. Accordingly, as per the orders of the Secretary, APSWREIS, the Special Audit Party of APSWREIS has conducted the audit on the accounts of APSWRS/JC Koheda, Karimnagar District, for the year 2009-10 and submitted their report. As per the Audit Report, it was noticed that Sri A.Surender, Principal, APSWRS/JC, Koheda, Karimnagar District has involved in serious irregularities of financial matters, huge mismanagement and misappropriation of funds of the said Institution to a tune of Rs.55.76 lakhs. 99. After issue of dismissal orders to the petitioner he preferred an appeal petition to the Appellate Authority i.e., Board of Governors, to quash the dismissal orders. 99. After issue of dismissal orders to the petitioner he preferred an appeal petition to the Appellate Authority i.e., Board of Governors, to quash the dismissal orders. Accordingly, as per the orders of the appellate authority, Appeal was placed before the 56th Board of Governors meeting held on 12.09.2011, and the same was examined and rejected by the Board in its meeting (Copy enclosed). The decision of the BG was informed to the petitioner vide proceedings Rc. No. Z-V/Estt/8118/2004, dated: 02.11.2011 (Copy enclosed). 104. It is also submitted that on receipt of the representation received from the petitioner, the file has been processed to the higher authorities from time to time, it shows there is no ill intentin of the respondents as well as Secretary, APSWREIS in examining/considering his requests.” DISCUSSION AND CONCLUSION 7. The petitioner approached this Court aggrieved by the orders of the 3rd respondent vide proceedings No. Rc No.Z-V/Estt./8118/2004, dated 01.10.2010 in dismissing the petitioner from service and consequently rejecting the appeal filed by the petitioners by the 2nd respondent in its 56th Board of Governors Meeting held on 12.09.2011 vide agenda Item No.14. 8. The petitioner in the present writ petition challenged the impugned proceedings on several grounds which are enlisted as follows: 1. that the respondent officials have not followed the mandatory principles to conduct an enquiry. 2. Principles of natural justice has not been followed. 3. The petitioner alone was victimised and surprisingly other officers along with the petitioner were not served with any memo or punishment. 4. There was no valid material on record to justify the impugned orders. 5. The appellate authority mechanically confirmed the orders passed by the disciplinary authority in a routine manner without application of mind. 6. The respondents took seven years time to conclude departmental proceedings resulting grave injustice to the petitioner. 7. That the impugned order of the Respondents is contrary to law and weightage of evidence on record. 8. That the impugned order of the Respondents is liable to be set-aside on the ground the petitioner was not guilty of the alleged misconduct against the petitioner. 9. That the Respondents failed to note that the impugned order is liable to set-aside on the ground that the disciplinary action of dismissal from service is very excessive and disproportionate to the alleged misconduct of the petitioner. 10. 9. That the Respondents failed to note that the impugned order is liable to set-aside on the ground that the disciplinary action of dismissal from service is very excessive and disproportionate to the alleged misconduct of the petitioner. 10. That the Respondents failed to note that in the departmental enquiry initiated against the petitioner, no reasonable opportunity was provided to the petitioner to prove his innocence i.e., to peruse the records, to produce witnesses, to cross examine witnesses etc. 11. That the Respondents ought to have set-aside the impugned order and grant the relief of reinstatement of the petitioner in to service with continuity of service, by paying all the consequential attendant benefits including seniority and promotions etc. 12. That the Hon'ble Apex Court and various High courts in catena judgments held that the Respondent authorities ought to reinstate the petitioner in to service with continuity of service with full back wages and all consequential attendant benefits on the ground that mandatory principles of enquiry had not been followed. 9. The comprehensive counter affidavit filed by the 1st respondent clearly states that the petitioner involved in serious irregularities in financial matters i.e.mis-management and mis-appropriation of funds to a tune of Rs55.76 lakhs and therefore, following due procedure detailed enquiry was conducted and dismissal orders were issued to the petitioner. Aggrieved by the same, the petitioner preferred appeal before the appellate authority i.e. Board of Governors to quash the orders and the 56th Board of Governors meeting held on 26.09.2011, the same was examined and rejected by the board and the decision was also informed to the petitioner vide proceedings dated 02.11.2011 and therefore, the case of the petitioner warrants no interference. 10. The reply affidavit filed by the petitioner to the counter affidavit filed by the 1st respondent, a bare perusal of the same indicates that the petitioner superannuated on 30.04.2017 and the petitioner has made several representations requesting the respondents for their indulgence. But however, the 1st respondent had not disposed of the petitioner’s representation dated 18.11.2011. 11. 10. The reply affidavit filed by the petitioner to the counter affidavit filed by the 1st respondent, a bare perusal of the same indicates that the petitioner superannuated on 30.04.2017 and the petitioner has made several representations requesting the respondents for their indulgence. But however, the 1st respondent had not disposed of the petitioner’s representation dated 18.11.2011. 11. Without going into the merits and demerits of the case, taking into consideration the main prayer of the petitioner in the writ petition and also para 104 of the counter affidavit filed by the 1st respondent which clearly indicates that the file of the petitioner after receipt of representation of the petitioner had been processed to the higher authorities from time to time and there is no ill intention of the respondents as well as Secretary, APSWREIS in examining and considering the petitioner’s representation and also the fact that `no orders have been passed on the petitioners representation dated 18.11.2011, the writ petition is disposed of directing the 1st respondent to consider the petitioner’s representation dated 18.11.2011, in accordance to law within a period of four weeks from the date of receipt of copy of the order and pass appropriate orders in accordance to law inconformity with principles of natural justice and communicate the decision to the petitioner. However, there shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand dismissed.