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2025 DIGILAW 140 (AP)

P. Govardhana v. State Of A. P.

2025-01-24

K.MANMADHA RAO

body2025
ORDER : K MANMADHA RAO, J. The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “….. to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the G.O.Rt.No.477, MA and UD (Vig.III-1) department, dated 31-07-2019 of the 1 st respondent and consequential orders in Roc.No.7999/08/C1, dt.16-10-2019 of the 3 rd respondent in imposing a punishment of stoppage of one annual grade increment with cumulative effect without conducting enquiry and encroaching in to the powers the 2 nd respondent as illegal, unjust and arbitrary and in violation of the procedure prescribed under Rule 20 of APCCA Rules and totally disproportionate to the alleged charge ….” 2. Brief facts of the case are that the petitioner was initially appointed as Health Assistant at Tirupathi on 30.12.1985 and worked in different municipalities. Later the petitioner was promoted as Sanitary Inspector on 11.10.1991 and further promoted as Sanitary Supervisor by the 2 nd respondent on 22.07.2015. The post of Health Assistant/Sanitary Inspector/Sanitary Supervisor are governed by AP Municipal Health (Municipalities) Sub-ordinate service rules issued in G.O.Ms.No.84, MA & UD (G.1) Department, dated 14.02.2012. The post of Sanitary Inspector comes under Category-1 at S.No.2 and the post of Sanitary Supervisor s comes under Category-1 at S.No.1 and for both posts, the 2 nd respondent is the appointing authority and as per CCA rules, the appointing authority will be the disciplinary authority. As per Rules, the disciplinary authority shall issue charge Memo against any accused officer inviting his explanation if any and the 2 nd respondent has to examine the explanation and if he satisfies the explanation, he shall drop the charges or else he should appoint a enquiry officer to conduct enquiry as per the procedure prescribed under Rule 20 of APCCA Rules. In the present case, the petitioner working in 3 rd respondent corporation. The 2 nd respondent appointed the 4 th respondent as an enquiry officer in Roc.No.7999/08/C1, dated 06.10.2008 to conduct an enquiry against the petitioner. In the present case, the petitioner working in 3 rd respondent corporation. The 2 nd respondent appointed the 4 th respondent as an enquiry officer in Roc.No.7999/08/C1, dated 06.10.2008 to conduct an enquiry against the petitioner. Later, the enquiry officer has issued a charge memo to the petitioner vide Roc.No.7999/2008/C1, dated 30.01.2010 framing charges as the petitioner failed to submit annual property returns from the date of his joining into service i.e., 30.12.1985 to till 27.06.2007 to the competent authority and violated Rule 9(7) of APCS (Conduct) Rules, 1964 and the petitioner failed to obtain previous sanction or intimation to the competent authority while purchasing the immovable properties in his name and in the name of his mother and failed to obtain previous sanction or intimation to the competent authority and violated Rule 9(1) of APCS (Conduct) Rules, 1964. The petitioner has submitted explanation on 06.02.2010 denying the charges made against him. The enquiry officer without conducting enquiry, submitted report on 03.10.2012 holding that the charges are held proved against the petitioner. The 2 nd respondent being disciplinary authority failed to issue show cause notice along with alleged enquiry report dated 03.10.2012 asking explanation of the petitioner on the report of the 4 th respondent. Further, the 2 nd respondent has abdicated his power to 1 st respondent, who is appellate authority and the 1 st respondent has encroached into the jurisdiction of the 2 nd respondent and issued punishment vide G.O.Rt.No.477, MA & UD (Vig.III-1) Department, dated 31.07.2019 imposing a punishment of stoppage of one annual grade increment with cumulative effect. Further, the 3 rd respondent has issued orders vide Roc.No.7999/08/C1, dated 16.10.2019 implementing the punishment orders of the 1 st respondent. Aggrieved by the same, the present writ petition has been filed. 3. The 3 rd respondent filed counter affidavit denying the allegations made in the writ petition and stated that the petitioner submitted explanation to the 4 th respondent on 06.02.2010. The charge memo and the explanation of the petitioner were furnished to the 2 nd respondent, as per the directions of the 1 st respondent along with necessary documents vide Letter Roc.No.799/2008/C1, dated 26.10.2012. It is further stated that the 4 th respondent has conducted personal enquiry on 06.02.2010 and submitted his enquiry report to 3 rd respondent on 03.10.2010. The charge memo and the explanation of the petitioner were furnished to the 2 nd respondent, as per the directions of the 1 st respondent along with necessary documents vide Letter Roc.No.799/2008/C1, dated 26.10.2012. It is further stated that the 4 th respondent has conducted personal enquiry on 06.02.2010 and submitted his enquiry report to 3 rd respondent on 03.10.2010. The 1 st respondent authorized the 3 rd respondent to conduct enquiry and to submit enquiry report through the 2 nd respondent. Hence, the allegation of the 1 st respondent has encroached into jurisdiction of the 2 nd respondent and issued punishment vide G.O.Rt.No.477, MA & UD (Vig.III-1) Department, dated 31.07.2019 is incorrect. It is further stated that the procedure adopted in issuing charge memo and forwarding his explanation to the 1 st respondent, who is the disciplinary authority and imposition of punishment by the 1 st respondent are all in accordance with the rules framed under A.P.C.S.(CCA) Rules, 1991. 4. The 1 st respondent filed counter affidavit denying the allegations made in the writ petition and stated that the 1 st respondent in its Memo No.9232/Vig.IV-2/2018-1, dated 26.07.2008 and 20.08.2008 has informed the 3 rd respondent that the petitioner has not obtained prior permission in acquisition of immovable properties and not filed annual property returns and thus violated Andhra Pradesh Civil Services Conduct Rules, 1964 and recommended for departmental action and requested to initiate departmental action against the petitioner and send the enquiry report with record of enquiry to Government for final decision. Accordingly, the 3 rd respondent framed charges against the petitioner and appointed the 4 th respondent as Enquiry Officer. In turn, the Enquiry Officer has conducted the enquiry and submitted his findings holding that the charges are held as “proved” in the enquiry. On receipt of the said findings of the Enquiry Officer and after following the due procedure, the Government has issued orders imposing the punishment of “Withholding of one annual grade increment with cumulative effect” against the applicant vide G.O.Rt.No.477, MA & UD (Vig.III) Department, dated 31.07.2019. 5. Heard Mr.G.Seena Kumar, learned counsel for the petitioner and learned Assistant Government Pleader for Municipal Administration and Urban Development, for respondent Nos.1 and 2. 6. 5. Heard Mr.G.Seena Kumar, learned counsel for the petitioner and learned Assistant Government Pleader for Municipal Administration and Urban Development, for respondent Nos.1 and 2. 6. On hearing, learned counsel for the petitioner while reiterating the contents urged in the writ petition, submits that, the 1 st respondent failed to see that, as per Memo No.991/SC.E1/98-5/GAD(SC-E) Department, dated 17.12.1998 and another Memo No.623/SPL.C/2008-2, dated 15.10.2008 even if the assets acquired by the Accused Officer are over and above 20% of his total income, it was decided to take a liberal view of the excess of the assets over the receipts of the known sources of income and a reasonable margin up to 20% of the total income of the Accused Government Servant may be allowed, while computing the disproportionate assets. But in the present case, it is not the case of the respondents that the petitioner possess the disproportionate assets which is more than petitioner’s known source of income, but the charge is the petitioner has not obtained prior permission or intimated the superiors before acquiring the above properties is only a irregularity and which is curable one and imposing major punishment for said irregularity is totally disproportionate punishment to the alleged charges and unwarranted and liable to be set aside. Therefore, learned counsel requests this Court to pass appropriate orders. 7. Per Contra, learned Assistant Government Pleader while reiterating the contents made in the writ petition, submits that, the charge on the petitioner is that he has not obtained prior permission or intimated the superior officers before acquiring properties and there by violated Rule 9(1) of the APCS(C) Rules 1964 and the petitioner also not submitted annual property returns in time and thus violated Rule 9(7) of the APCS(C) Rules, 1964. He further submits that, as per the provision of Rule 9(7) of the APCS (Conduct) Rules, 1964, every Government employee, other than the member of A.P. Last Grade Service and Record Assistants in the AP General Subordinate Service, shall on first appointment to the Government service submit to the Government, a statement of all immovable property irrespective of its value and movable property to Government before 15 th January of each year through proper channel. He further submits that the Government has issued a show cause notice vide Memo No.9232/Vig.IV/2008, dated 22.05.2013 calling for explanation of the petitioner on the findings of the Enquiry Officer, within a period of 15 days from the date of receipt of the said show cause notice and the same was acknowledged by the petitioner. But the petitioner failed to submit his explanation as called for. Therefore, the Government consequent upon expire of time limit fixed in the said show cause notice, have taken an independent decision to conclude the case and after duly following the due procedure contemplated, has issued orders imposing the punishment against the petitioner. Therefore, learned Assistant Government Pleader prays to dismiss the writ petition. 8. Perused the record. 9. On a perusal of the material on record, this Court observed that, while the petitioner was working as Sanitary Inspector, charge memo was issued to the petitioner alleging that he has failed to submit annual property returns and failed to obtain prior permission for purchasing immovable properties. The petitioner submitted explanation to the charge memo dated 06.02.2010 requesting to excuse for the lapses, which are only technical and he may be pleased to exonerate of the charge and further action may be dropped in the matter. Thereafter, the enquiry officer submitted report on 03.10.2012 holding that charges are proved. 10. It is the contention of the learned counsel for the petitioner that the 2 nd respondent being disciplinary authority failed to issue show cause notice along with alleged enquiry report dated 03.10.2012 asking the explanation on the report of the 4 th respondent and the 2 nd respondent has abdicated his power to 1 st respondent, who is appellate authority and the 1 st respondent encroached into the jurisdiction of the 2 nd respondent and issued the impugned punishment without conducting regular enquiry and without following the procedure prescribed under the service rules as well as the conduct rules. 11. It is the contention of the learned Assistant Government Pleader that the Government has issued show cause notice to the petitioner dated 22.05.2013 calling for the explanation of the petitioner on the findings of the enquiry officer. As the petitioner fails submit explanation, the Government proceeded further and imposed the impugned punishment. 12. 11. It is the contention of the learned Assistant Government Pleader that the Government has issued show cause notice to the petitioner dated 22.05.2013 calling for the explanation of the petitioner on the findings of the enquiry officer. As the petitioner fails submit explanation, the Government proceeded further and imposed the impugned punishment. 12. In view of a close scrutiny of the impugned order dated 31.07.2019 shows, as rightly argued by learned counsel for the petitioner, the1 st respondent has issued proceedings, without conducting any enquiry. 13. Therefore, it is needless to emphasize the order is devoid of reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that no opportunity of hearing was afforded to the petitioner therein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand. 14. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others , AIR 1999 SC 22 = MANU/SC/0664/1998 regarding maintainability of writ petition in the context of availability of alternative and efficacious remedy, the Apex Court held thus: “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in atleast three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied).” The instant case falls in one of the exceptions carved out by the Apex Court, the principles of natural justice is a casualty here. 15. On considering the submissions of both the learned counsels and upon perusing the entire material on record, this Court is of the opinion that, the respondents ought to have given an opportunity of personal hearing to the petitioner, while passing the impugned proceedings vide G.O.Rt.No.477, Municipal Administration and Urban Development (Vig.III-1) Department, dated 31.07.2019. Hence, this Court is inclined to dispose of the present writ petition. 16. Having regard to the facts and circumstances of the case and submissions of both the counsel, the impugned proceedings vide G.O.Rt.No.477, Municipal Administration and Urban Development (Vig.III-1) Department, dated 31.07.2019 issued by the 1 st respondent is hereby set aside. Further, the matter is remanded back to the 1 st respondent with a direction to conduct fresh enquiry and pass appropriate reasoned orders, by giving opportunity of personal hearing to the petitioner, in accordance with law, within a period of three (03) months from the date of receipt of a copy of this order. 17. With the above directions, the Writ Petition is disposed of. No costs. 18. As a sequel, miscellaneous applications pending, if any, shall stand closed.