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2023 DIGILAW 483 (TS)

Koduri Suresh Babu v. State of Telangana

2023-07-04

SUREPALLI NANDA

body2023
ORDER : Heard Mr. K. M. Krishna Reddy the Learned Counsel for the Petitioner and the Learned Government Pleader for Medical Health and Family Welfare. 2. This Writ Petition is filed praying to issue a Writ of Mandamus declaring the action of the 6th respondent in Writing a letter vide Rc.No.SPL/PLG/NH/2020/1544 dated 25.11.2020 without furnishing the diet indents and without following any procedure contemplated under law as illegal, arbitrary, violation of principles of natural justice and violation of Article 14 of the Constitution of India and consequently direct the 6th respondent to provide diet indents to the petitioner by setting aside the letter vide Rc.No.SPL/PLG/NH/2020/1544 dated 25.11.2020. 3. The case of the petitioner, in brief, is as follows: a) Petitioner has been in the service of Diet Supply for the last 20 years and had been supplying diet to the doctors and in-patients. b) Petitioner participated in the bidding for the diet supply for Niloufer Hospital and was awarded the diet supply contract for a period of 2 years i.e., from 01.04.2017 to 31.03.2019 and has entered into agreement with Hyderabad District Diet Management Committee and Diet Management Committee on 01.04.2017 and has been supplying diet in Niloufer Hospital. c) A Writ Petition Public Interest Litigation (WP PIL) 149 of 2020 has been filed against the petitioner, before this court for alleged illegalities in diet supply in Niloufer Hospital. This Court vide its order had directed the respondents to conduct an enquiry in both the Gandhi Hospital and Chest Hospital. This Court on 19.08.2020 directed the 1st respondent to take action in accordance to law. d) The Enquiry against the petitioner has been conducted behind the back of the petitioner and no notice has been given to the petitioner in the enquiry. e) The Superintendent, Niloufer Hospital, Red Hills, Lakdikapul, Hyderabad (6th Respondent herein), had issued show cause notice vide Rc.No.SPL/PLG/NH/2020/1258 dated 29.09.2020 directed the petitioner to remit an amount of Rs. 1,13,28,320/- (One Crore Thirteen Lakhs Twenty Eight Thousand Three Hundred and Twenty only) and further to submit explanation to the show cause notice within 7 days. e) The Superintendent, Niloufer Hospital, Red Hills, Lakdikapul, Hyderabad (6th Respondent herein), had issued show cause notice vide Rc.No.SPL/PLG/NH/2020/1258 dated 29.09.2020 directed the petitioner to remit an amount of Rs. 1,13,28,320/- (One Crore Thirteen Lakhs Twenty Eight Thousand Three Hundred and Twenty only) and further to submit explanation to the show cause notice within 7 days. f) The petitioner vide letter dated 06.10.2020 had requested, the Superintendent, Niloufer Hospital, Red Hills, Lakdikapul, Hyderabad (6th respondent herein), to provide the Enquiry report and all other documents verified by the Enquiry Committee for submitting explanation to the Show cause notice and the 6th respondent has served the copy of enquiry findings. g) Again the petitioner, vide letter dated 30.10.2020 requested to provide the details of the basis for findings of the enquiry report for submitting explanation. The 6th respondent vide letter dated 16.11.2020 asked the petitioner to submit explanation. h) Petitioner brought to the notice of the 6th respondent that information sought by the petitioner has not been considered and requested for the basis of the findings of the Enquiry Committee vide letter dated 18.11.2020 and on the same day, the 6th respondent had served some diet indents to the petitioner. i) Upon verification of the served diet indents, it was found by the petitioner that the Enquiry Committee had not verified all the day to day indents issued by the hospital wards. Petitioner immediately addressed a letter to the 6th respondent on 27.11.2020 bringing the said lacuna to the notice and requested for a joint verification of all day to day diet indents for a period of 3 years and further requested to verify and provide the balance diet indents for submitting explanation. j) The petitioner again on 28.01.2021 addressed a letter to 6th respondent, reminding about the earlier letters and also requested to provide the balance diet indents for submitting explanation to the Show Cause Notice dated 29.09.2020 but there was no response from the 6th respondent. k) Respondents are not empowered to initiate action under the Revenue Recovery Act and that the 6th respondent cannot request the District Collector to initiate the proceedings under the Revenue Recovery Act, in violation to the provisions of the Revenue Recovery Act. Though the enquiry report constitutes for initiation of action, it is not a conclusive document which can be used against the petitioner. The respondents are predetermined to punish the petitioner. Though the enquiry report constitutes for initiation of action, it is not a conclusive document which can be used against the petitioner. The respondents are predetermined to punish the petitioner. l) On 25.02.2021, when the WP PIL No. 149 of 2020 has been listed before this court for hearing, the 6th respondent had addressed a letter to the petitioner stating that the diet indent supplies as requested by the petitioner had already been served upon the petitioner despite not serving the same on the petitioner. m) The Government Pleader appearing on behalf of the respondents during the hearing of the WP PIL had submitted that the 6th respondent had already addressed a letter to the 5th respondent requesting to initiate recovery under Revenue Recovery act. The said letter had not been served upon the petitioner and the petitioner had rushed to the office of the 6th respondent to enquire about the letter addressed to the 5th respondent. n) The action of 6th respondent, directing the 5th respondent to recover the amounts under the provisions of Revenue Recovery Act is in violation of the orders of this court dated 19.08.2020 passed in WP PIL No. 149 of 2020. Hence the said Writ Petition. 4. The Counter Affidavit filed by the 6th respondent reads as under: a) A committee had been constituted by the Director of Medical Education, Hyderabad, Telangana vide ref no Spl/VCA/2020 dated 27.02.2020 on diet at Niloufer Hospital to enquire into the allegation of irregularities and misappropriation of funds in respect of diet for 3 years from March, 2017 to February 2020. b) The Enquiry Committee had submitted its report to the Head of the Department i.e., 3rd respondent herein and the 3rd respondent had forwarded the same to the 1st respondent on 27.02.2020 for taking further action. c) Further, the Enquiry Report had been submitted to the Government on 27.02.2020, which revealed, misappropriation of funds to a tune of Rs. 1,13,28,320/- (One Crore Thirteen Lakhs Twenty Eight Thousand Three Hundred and Twenty only) for diet supplied for the 3 years by the Petitioner. d) Meanwhile, WP PIL No. 149 of 2020 had been filed before this court and basing on the Enquiry report and the orders of this court, Show Cause notice was issued to the petitioner on 29.10.2020. 1,13,28,320/- (One Crore Thirteen Lakhs Twenty Eight Thousand Three Hundred and Twenty only) for diet supplied for the 3 years by the Petitioner. d) Meanwhile, WP PIL No. 149 of 2020 had been filed before this court and basing on the Enquiry report and the orders of this court, Show Cause notice was issued to the petitioner on 29.10.2020. e) Upon the request of the petitioner, Enquiry report and other documents were issued to the petitioner vide RC.No: plg/NH/2020 dated 19.11.2020. Subsequently another notice had been issued against the petitioner to remit the misappropriated amount. f) A letter dated 11.11.2020 had been served upon the petitioner to collect the indents and to submit the petitioner’s explanation to the show cause notice at the earliest and the diet indents were issued to the petitioner on 18.11.2020 and also a letter had been sent on 19.11.2020, reminding the petitioner to submit the explanation to the show cause notice. g) Action taken report had to be submitted before this court in the WP PIL No. 149 of 2020, as the matter had been posted on 25.11.2020. Despite many reminders on Email and whatsapp, the petitioner had not submitted the explanation. h) The Director of Medical Education has instructed to recover the misappropriated amount from the petitioner vide Rc.No.44036/VCA/2019 dated 26.09.2020. Action taken report of the 6th respondent has been communicated to the 3rd respondent vide Rc.No.Spl/Plg/NH/2020/1546 dated 25.11.2020. i) The 3rd respondent vide Rc.No.44036/VAC/2019 dated 27.11.2020 had submitted the compliance report to the Government, H.M & F.W Department, Telangana, Hyderabad. Government, H.M & F.W Department, Telangana, Hyderabad vide Lr.No.698/C2/2020-11 dated 27.11.2020 had requested the Advocate General to apprise the action taken. j) As the petitioner neither remitted the recovery amount nor submitted any explanation, a letter has been addressed to the 4th respondent on 25.11.2020 to recover the misappropriated amount under the Revenue Recovery Act. Hence, there are no merits in the case and the orders passed in I.A. 1 of 2021 in W.P. No. 7302 of 2021 is liable to be set aside. PERUSED THE RECORD 5. The interim order dated 24.03.2021 passed in I.A. 1 of 2021 in W.P.No. 7302 of 2021 reads as under: “There shall be an interim direction not to take any coercive steps. PERUSED THE RECORD 5. The interim order dated 24.03.2021 passed in I.A. 1 of 2021 in W.P.No. 7302 of 2021 reads as under: “There shall be an interim direction not to take any coercive steps. However, it is made clear that the respondent is at liberty to proceed with the matter in accordance with law for determination of liability against the petitioner.” 6. Paras 6 and 7 of the Counter Affidavit filed by Respondent No. 6 reads as under: “6. In Reply to Para Nos.8 to 11 of the petitioner affidavit, it is submitted that as per the request of then diet contractor the diet indents were provided for the period of 3years 2017-18, 2018-19, 2019-2020 vide reference Rc.No.plg/NH/2020 dated: 16/11/2020 (Copy Enclosed). 7. In Reply to Para No.12 of the petitioner affidavit, it is submitted that the Director of Medical Education has instructed to recover the misappropriated amount from the Diet Contractor M/s K.Suresh Babu, Rc.No.44036/VCA/2019, dt: 26-09-2020.As neither the explanation was received nor the amount was remitted by the Diet Contractor, thus action was initiated under the Revenue Recovery Act to recover the misappropriated amount from the Diet Contractor.” 7. The order impugned issued by the 6th respondent (Superintendent, Niloufer Hospital) vide Rc.No.Spl/Plg/NH/2020/1546, dated 25.11.2020 to the Director of Medical Education, Government of Telangana, reads as under: “I invite the immediate attention of the Collector and District Magistrate, Hyderabad towards subjected cited. I am to inform that a case of misappropriation of Government funds in the Diet Supply bills for Rs.1.13,28,320/- against M/s.K.Suresh Babu, the then Private Diet Contractor at Niloufer Hospital, Hyderabad. As per reference 1, 2 & 3 cited, the issue of misappropriation of Government funds was reported and enquired against Sri.K.Suresh Babu the then Private Diet Contractor and accordingly a Show Cause Notice prior to initiating recoveries and a complaint against him was issued. The said individual in the reference 4 cited with clear instructions to submit his response within 7 days of receipt of the said orders had been issued the Diet Indents for last three years in obedience to the Orders of the Hon'ble High Court of Telangana. Mr.K.Suresh Babu has not submitted his explanation till to date. The said individual in the reference 4 cited with clear instructions to submit his response within 7 days of receipt of the said orders had been issued the Diet Indents for last three years in obedience to the Orders of the Hon'ble High Court of Telangana. Mr.K.Suresh Babu has not submitted his explanation till to date. In view of the above I am referring the above case to your office towards processing for initiating recoveries against Sri.K.Suresh Babu, formerly Private Diet Contractor at Niloufer Hospital, Hyderabad under RR Act as per rule in force. This is for your kind information and further necessary action.” 8. The Order dated 11.08.2021 of the Division Bench of this Court in W.P. (PIL) No. 149 of 2020, reads as under: 1. Mr. Radhive Reddy, learned Special Government Pleader appearing for the State refers to a counter affidavit filed by the respondent No.5/Superintendent, Niloufer Hospital dated 21.06.2021 wherein, it has been submitted that the respondent No.5 has lodged a criminal complaint against the respondent No.6 vide FIR.No.98 of 2021 dated 17.06.2021 under Sections 403, 406, 420, 465, 468 and 471 IPC at Central Crime Station, Hyderabad and we are informed that investigations are being conducted by the Police in respect of the said FIR. Learned Special Government Pleader states that the services of the respondent No.6 as Diet Contractor have already been terminated and aggrieved by the initiation of Revenue Recovery Act proceedings, he has filed W.P.No.7302 of 2021 wherein an ex-parte interim order was granted in his favour. Vacate stay application has been filed by the Department and the same is listed on 07.07.2021. 2. In view of the aforesaid Status Report, the present petition is closed along with the pending applications, if any. Needless to state that the Police shall complete the enquiry proceedings in respect of the subject FIR at the earliest and take further steps pursuant thereto in accordance with law. As the Police Department has not been made a party in the present proceedings, a copy of this order shall be conveyed by the respondent No.5 to the Police Department for perusal and compliance. 9. As the Police Department has not been made a party in the present proceedings, a copy of this order shall be conveyed by the respondent No.5 to the Police Department for perusal and compliance. 9. The last para of the Order dated 06.10.2020 passed in W.P.No.15053 and 15054 of 2020 passed by the Division Bench of this Court, reads as under: “However, it is made abundantly clear that the respondents shall be free to take action against the petitioner, but strictly in accordance with the procedure established by law. The respondents are directed to take action against the petitioner, if necessary, but uninfluenced by any observations made by this Court in the orders passed by this Court in W.P.(PIL) No.149 of 2020. In case, the petitioner continues to be aggrieved by any action taken by the respondents in violation of the law, the petitioner shall be free to challenge the same.” DISCUSSION AND CONCLUSION 10. It is the specific case of the petitioner that in pursuance to the show cause notice dated 29.09.2020 issued vide Rc.No.SPL/PLG/NH/2020/1258, the petitioner vide detailed representations dated 06.10.2020, 30.10.2020, 18.11.2020, and 27.11.2020 requested the 6th respondent to fix up a date for joint verification of all day to day diet indents for the period of three years 2017-18, 2018-19 and 2019-20 i.e. from 01.04.2017 to 28.02.2020 and further requested for providing the balance diet indents to the petitioner for submitting his detailed explanation within (7) days from the date of receipt of the said orders and further observing that the petitioner has not submitted his explanation till as on 25.11.2020, the date when the order impunged dated 25.11.2020 vide Rc.No.Spl./Plg./NH/2020/544 had been passed unilaterally and hastily. 11. This Court on perusal of the material documents filed in support of the present writ petition opines that though the representations of the petitioner dated 06.10.2020, 30.10.2020, 18.11.2020 addressed to the 6th respondent had been even acknowledged by the 6th respondent, the 6th respondent vide his letter Rc.No.Spl/plg./NH/2020/1481, dated 11.11.2020 provided only certain diet indents to the petitioner herein, which were acknowledged by the petitioner on 18.11.2020. The petitioner, in fact vide his detailed letter dated 27.11.2020 addressed to the 6th respondent requested the 6th respondent to provide the balance diet indents as soon as possible to enable the petitioner to submit detailed explanation in the matter, very clearly stating in the said letter dated 27.11.2020, that the 6th respondent had served the diet indents only for a limited period and all the day to day diet indents are essential and very much required for ascertaining the factual position and further that only then the petitioner would be able to submit his detailed explanation to the show cause notice. In fact, a specific request is made vide the said letter dated 27.11.2020 by the petitioner to the 6th respondent reiterating the petitioner’s request to fix up a date for joint verification of all day to day diet indents for the period of three years from 01.04.2017 to 28.02.2020 which are the essential documents for the petitioner for preparing food on daily basis and raising petitioner’s bills, which is in turn the basis for sanctioning of the petitioner’s bills. A bare perusal of the letter dated 28.01.2021 of the petitioner addressed to the 6th respondent and even acknowledged by the 6th respondent indicates a similar request for providing the balance diet indents as soon as possible to enable the petitioner to submit petitioner’s detailed explanation for the show cause notice dated 29.09.2020 issued to the petitioner herein. 12. This Court opines that the finding in the order impugned dated 25.11.2020 vide Rc.No.Spl./plg./NH/2020/544, of the 6th respondent that though diet indents for last three years in obedience to the orders of the High court of Telangana, had been issued to the petitioner, yet the petitioner has not submitted petitioner’s explanation till as on 25.11.2020 i.e. the date on which the impugned order dated 25.11.2020 vide Rc.No.Spl/Plg/NH/2020/544, had been passed by the 6th respondent is not tenable and cannot be sustained since the material documents at pages 38 to 49 filed by the petitioner in support of the present writ petition, clearly indicate the details of the missing indents for the said period 2017 to 2020, which had not been furnished to the petitioner, and petitioner requested for the same vide petitioner’s letters dated 27.11.2020 and 28.01.2021, addressed to the 6th respondent herein. 13. 13. This Court opines that the order impugned passed by the 6th respondent dated 25.11.2020 vide Rc.No. Spl/Plg/NH/2020/1544 is totally contrary to the spirit of the orders of High Court dated 24.03.2021 passed in I.A.No.1 of 2021 in W.P.No.7302 of 2021, since liability had been fixed against the petitioner without following due procedure under law, in clear violation of principles of natural justice unilaterally, irrationally without the petitioner even furnishing petitioner’s explanation to the show cause notice dated 29.09.2020. 14. Taking into consideration the above referred facts and circumstances and also the interim orders of this Court dated 24.03.2021 passed in I.A.No.1 of 2021 in W.P.No.7302 of 2021 the impugned order dated 25.11.2020 passed by the 6th respondent vide Rc.No.SPL/PLG/NH/2020/1544 is hereby set aside. The respondents are directed not to take coercive steps against the petitioner. But however, it is made clear that the respondents are at liberty to proceed in the matter afresh, in accordance to law, in conformity with principles of natural justice for determination of liability against the petitioner. 15. Accordingly, the writ petition is allowed. However, there shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.