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2024 DIGILAW 1084 (AP)

Krishnadevaraya University v. K. Seshaiah

2024-08-12

G.NARENDAR, KIRANMAYEE MANDAVA

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JUDGMENT : (G. Narendar, J.) 1. Heard the learned Additional Advocate General along with the counsel for the University and the learned counsel for the respondent and also the Amicus curiae. 2. This intra Court appeal is directed against the order of the learned Single Judge passed in I.A.No.2 of 2023 in W.P.No.11373 of 2023, whereby, learned Single Judge has been pleased to grant an interim relief directing the appellants-respondents to pay the subsistence allowance to the petitioner from the date of his dismissal i.e., from 24.03.2016 and continue to pay the subsistence allowance till the completion of the disciplinary enquiry. 3. Having heard and bestowed our detailed attention to the facts and the law in this regard, we deem it proper to pass following order: 4. The case facts in a nut-shell are that the respondent-petitioner herein along with four others are alleged to have indulged in acts of gross misappropriation whereby, amounts in the banking account of the University were diverted to their own personal accounts and also into the accounts of family members and friends, which in the case of the respondent-petitioner herein resulted in diversion of huge amounts from the banking account of the University into the banking account of the respondent-petitioner’ s wife. 5. In fact a perusal of the compilation of papers annexed along with affidavit filed into this Court and on perusal of a document marked as Annexure-I would reveal that a sum of rupees in excess of Rs.7.5 lakhs is alleged to have been diverted by the respondent-petitioner into his own account and that apart, it is stated that it has been discovered that sum of Rs. 21.00 lakhs has been diverted by the respondent-petitioner from the banking account of the university into the account of his wife by name Smt.K.Bhagya Lakshmi. 6. The learned counsel for the respondent would vehemently oppose and deny the same. He would contend that such a case was never canvassed at any point of time. The amounts subjected to misappropriation were said to have been in the range of only about Rs.4.00 lakhs in respect of the appellants and a sum, little in excess of Rs.8.00 lakhs in favour of his wife and he would contend that it was on this basis that charges were framed and that it is not open for the appellants to go beyond the same. 7. 7. As noted above, the mystery deepens further. The respondent on being visited with the punishment of dismissal from service has approached this Court in W.P.No.14548 of 2016 and the learned Single Judge of this Court was pleased to grant relief as under: “8. The charge must assume each of the allegations made in the Charge sheet to be factually correct and examine ingredients of the offence without adding or subtracting anything there from. The charge itself shows that the petitioner has committed irregularities. The charges framed manifest that as if the case has been proved which is no short of the final proceedings and the charge sheet itself shows that the petitioner has committed an offence. That the enquiry report also does not disclose that any opportunity was given to the petitioner for cross examination of the witness, though, strictly Indian Evidence Act is applicable. The respondents herein have not followed the procedure for conducting enquiry, hence the charge and enquiry itself vitiated. In view of the same, this Court is inclined to set aside the impugned order and remand back to the Enquiry Authority to conduct enquiry as per the procedure of law by framing proper charge and calling explanation by following due procedure of law.” 8. We find it hard to subscribe the reasoning of the learned Single Judge that the charge is vague and the delinquent ought to have been given an opportunity for cross examination of the witness. The fact remains that a show cause notice had been issued, articles of charges framed, parties had participated in the enquiry and thereafter, the punishment came to be imposed. Hence, the question of charge being vague or factually incorrect or otherwise is something that does not appeal to us, as the fact remains that the respondent understood the charges and set out his defence in the replies filed by him. Be that as it may, the said order having become final we do not intend to proceed further. 9. The limited purpose for which, we have referred to the said order is that, we have nowhere noticed, either during the pendency of the enquiry or hearing of the Writ Petition., even a whisper much less a protest or demand for payment of subsistence allowance. That apart, we have seen that the challenge to the punishment imposed was on grounds other than non payment of subsistence allowance. That apart, we have seen that the challenge to the punishment imposed was on grounds other than non payment of subsistence allowance. In all these years, the petitioner has never felt the financial crunch to demonstrate his defence against the charges levelled against him. This Court probablises and would hold it relatable to the total quantum of the amount swindled from the accounts of his employer, the University, which is said to be in the realm of more than Rs.3.00 crores. The amounts that have been seized even according to the respondent-petitioner is about 30.00 lakhs and the fact is that the property has not been handed over to its original owner i.e., the University and we are also astounded by the inaction of the trial Court which appears to have turned a blind eye to the application by the University, praying to consider the delivery of the property which originally belongs to it. Be that as it may, we have queried the learned counsel for the respondent-petitioner, as to when the respondent demanded for payment of subsistence allowance, to which the learned counsel would take us to the representation, dated 01.04.2023, addressed to the Registrar of the University. The subject is recorded as under: “Sub: K. Sesaiah, Superintendent - Order of dismissal from service dated 24.03.2016 - Filing of Writ Petition No.14548/2016 - orders of High Court dated 01.12.2022 setting aside Charge Memo and punishment - Non-payment of salaries from the date of suspension to date of dismissal till date - Issuance of Show Cause Notice cum Charge Memo- Payment of salaries for the period of suspension and from the date of dismissal from service to till date - Requested - Regarding. 10. On a close reading of the representation, it is seen that the petitioner has placed a demand to consider the ‘period of suspension’ prior to his dismissal as ‘period spent on duty’ to pay the allowance from the date of dismissal from service till the date of passing of reinstatement orders, i.e., pursuant to the order of the learned single judge, dated 01.12.2022. That apart, it is seen that the petitioner has also placed a demand that unless and until the period of suspension is treated as period spent on duty and the entire salary is paid, he would not be in a position to travel from his residence in Ananthapur to attend the enquiry. 11. That apart, it is seen that the petitioner has also placed a demand that unless and until the period of suspension is treated as period spent on duty and the entire salary is paid, he would not be in a position to travel from his residence in Ananthapur to attend the enquiry. 11. Thus, in the entire saga, it is for the first time on 01.04.2023, a demand is raised to treat the period of suspension as period spent on duty. There is no whisper with regard to the non payment of subsistence allowance much less was there any protest by the petitioner against the non payment of the subsistence allowance pending the suspension and completion of enquiry and imposing punishment of order of removal. Even the so called representation is only a demand to treat the period of suspension as period spent on duty but not a demand for payment of subsistence allowance. 12. Be that as it may, we have perused the order of the learned Single Judge, dated 01.12.2022. The learned Single Judge neither directed reinstatement nor payment of any financial benefits. The fact remains that the order of dismissal was not challenged on the ground of being violative of provisions of article 311 (2) of the Constitution of India. It has never been the case of the respondent-petitioner that the non payment of the subsistence allowance has prevented him from effectively participating and conducting the enquiry or the prosecution set in motion before the jurisdictional Criminal Court. The instant representation also is not one for payment of subsistence allowance but for payment of full salary. Be that as it may, as pointed out by the learned counsel for the respondent-petitioner, the petitioner has been out of service for the last eight years and though a payment is made belatedly, the appellants-respondents were not required to address the issue of payment of subsistence allowance. 13. The learned Additional Advocate General would vehemently oppose and would submit that an amount in excess of Rs.3.00 crores have been swindled by the petitioner and likeminded colleagues. 13. The learned Additional Advocate General would vehemently oppose and would submit that an amount in excess of Rs.3.00 crores have been swindled by the petitioner and likeminded colleagues. That the sums are yet to be recovered and if at this juncture, the appellant is forced to pay the subsistence allowance and in the event of the de novo enquiry going against the respondent-petitioner, there is no way in which the loss to the University can be compensated nor there is any other way the University compensated for the amounts already swindled and hence prays that the appeal be allowed and the order of the learned Single Judge be set-aside. 14. The fact remains that the respondent-petitioner has been out of job for the last eight years. The fact also remains that there has been no demand for payment of subsistence allowance till date. The only demand that is placed before the Court is a demand to pay the entire salaries and to treat the period of suspension as period spent on duty. 15. The said aspect cannot be used, by the respondent-petitioner, as a stick to beat the appellant and he ought not be permitted to hold the appellant to ransom. In the event the respondent-petitioner is successful in demonstrating that he is not guilty of the misappropriation certainly all the amounts due to him will be settled in a time bound manner. But, in the event of the respondent petitioner being found guilty of the offences then, therein lies the problem. The misappropriation amount is more than Rs.3.00 crores. Whether it is the petitioner alone who is responsible or is the master minded or whether there are any others, are all matters that would be subject matter of the enquiry to be conducted. Be that as it may, as contended by the learned counsel for the respondent-petitioner, the petitioner could possibly be short of funds for diligently prosecuting the enquiry proceedings and other pending proceedings and hence it cannot be said that the said claim is without an element of truth and the said contention also cannot be brushed aside. 16. In that view we deem it appropriate to allow the appeal in part and modify the interim order as under: “The appellant shall pay subsistence allowance calculated at the rate of 75 % of the entitlement. 16. In that view we deem it appropriate to allow the appeal in part and modify the interim order as under: “The appellant shall pay subsistence allowance calculated at the rate of 75 % of the entitlement. The same shall be released to the petitioner within two (02) weeks from the date of receipt of this order. The enquiry shall be commenced thereafter. The question of issue regarding his entitlement to have the period spent on suspension or post the order of dismissal as time spent on duty is a subject matter of the enquiry and lies only in the domain of the enquiry officer and the disciplinary authority. Till such period is held to have been spent on duty, the claim for salary in our prima facie opinion is premature.” 17. In that view of the matter, it is made clear that the petitioner is entitled for the payment of subsistence allowance from 01.04.2023. The amount shall be calculated and released to the petitioner within the stipulated period as mentioned above. It is also made clear that the enquiry shall be concluded within an outer limit of six (06) months from the date of receipt of the order. Learned Additional Advocate General has placed on record a compilation of papers. On perusal of the same, it is seen that the University Registrar had issued articles of charges in respect of Audit Officers from the State Accountant General Office. On a query as to whether the Registrar has the competency to issue such articles of charges and initiate enquiry, learned additional advocate general, on instructions, submits that it is the Regional Deputy Director of State Audit, who is the competent authority to issue the articles of charges and initiate the enquiry and he would submit that the error would be rectified and the enquiry would be completed in a time bound manner. The submission is placed on record. In that view of the matter we permit the competent authority i.e., the regional deputy director of State Audit to take up the process of initiation of enquiry etc., in accordance with Rules. At any rate, enquiry shall be completed within an outer time limit of six months from the date of receipt of this order, in so far as it relates to the officers of the State Government and attached to the State Department. At any rate, enquiry shall be completed within an outer time limit of six months from the date of receipt of this order, in so far as it relates to the officers of the State Government and attached to the State Department. We also hope the University would also endeavour to complete the enquiry in all respects within time. The University shall also take steps to have an application for release of property. On such application the trial Court shall also endeavour to hear and dispose of the application within six weeks from the date of receipt of the order. 18. With the above directions, the Writ Appeal is partly allowed. As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Appeal shall stand closed.