WP/14/2009 of K.Vinodhar Vs The Nizam,s Institute of Medical Sciences on 30 December 2009

ORDER :

THE HON’BLE Ms. JUSTICE G. ROHINIWRIT PETITION No.14 OF 2009

This writ petition is filed seeking a declaration that the orderpassed by the 1[st] respondent dated 30.12.2008 imposing the majorpunishment of reduction to the lower post of Assistant Registrar fromthe post of Deputy Registrar w.e.f. 23.10.2008 as arbitrary, illegal andviolative of Rule 20 of A.P. Civil Services (Classification, Control &Appeal) Rules, 1991 (for short, ‘CCA Rules’).

The facts, in brief, are as under :

The petitioner joined the services of the 1[st] respondentInstitution –Nizam’s Institute of Medical Sciences (herein after referredto as ‘NIMS’) in the year 1969. He was promoted to the Post of DeputyRegistrar in the year 1996. While he was working as Deputy Registrarin Finance & Audit Section, by order dated 16.10.2008 he wastransferred to I.P. Billing & Cash Counter. The petitioner made arepresentation on 22.10.2008 stating that he was due to retire on31.5.2009 and that apart on account of health reasons he would notbe in a position to cope up with the heavy work load in I.P. BillingSection and requested to shift him to any other section other than I.P.Billing/Cash Counter. On 23.10.2008 he also applied for preparatory leave upto 1.1.2009. However, his request for leave was rejectedand that apart by order 30.10.2008 the 1[st] respondent informed thepetitioner that an enquiry under Rule 20 of A.P. Civil Services (CCA)Rules, 1991 was being held against him regarding his non-compliance with the order of transfer to I.P. Billing as well asunauthorized absence from 23.10.2008 onwards. He was alsoinformed that an Enquiry Officer was appointed to enquire into theallegations and submit a report within 15 days. By a separate memodated 30.10.2008 the petitioner was also called upon to explain thealleged misconduct under NIMS Standing Order No.30 Para 4 (ii) (a)(i) Explanation-II (i) within 3 days. On 4.11.2008 itself the petitionersubmitted a detailed explanation denying the allegations ofunauthorized absence and the alleged disobedience to the transferorder. Though no further enquiry was conducted, it appears that theEnquiry Officer submitted a report and on the basis of the same the 1[st]respondent by proceedings dated 27.11.2008 informed the petitioner that it was proved that he had unauthorizedly absented to duty from23.10.2008 and as such the misconduct/disobedience was proved.Accordingly the petitioner was directed to show-cause as to why apunishment of reduction to a lower time scale of pay, grade, postshould not be awarded. The petitioner submitted his explanation on8.12.2008 stating that no charge-sheet was communicated to him andno enquiry was conducted and therefore the proposed penalty on thebasis of the enquiry report said to have been submitted by the EnquiryOfficer was unwarranted.

While so, by letter dated 29.12.2008 the petitioner was directed to present before the Medical Board for medical examination on30.12.2008 with all medical records without fail. On the next day i.e.,30.12.2008 the impugned order came to be passed stating that thepetitioner’s explanation dated 8.12.2008 was not satisfactory andtherefore the Medical Board was constituted on 29.12.2008 toevaluate the alleged loss of vision in the right eye of the petitioner and

that the Medical Board opined that the petitioner was in a position todischarge the normal duties assigned to a Deputy Registrar. It isfurther stated that in view of the said medical report, in exercise of thepowers conferred upon Rule 7(2) of NIMS Employees Control andAppeal Rules, a major punishment of reduction to the lower post of Assistant Registrar with minimum pay in the scale of pay of Rs.8000-275-13500 has been awarded with effect from the date of hisunauthorised absence i.e., 23.10.2008. Aggrieved by the said order,the present writ petition is filed.

A counter-affidavit has been filed on behalf of the respondentsin which apart from reiterating the allegations of unauthorizedabsence and disobedience with the order of transfer, it is contendedthat the Director and Executive Registrar of NIMS are the authorities tomaintain this Scheme by taking action if circumstances so warrantagainst the employees who commit misconduct or for dereliction ofduties vide Rule 52 (iv) and 56 (iv) of the NIMS Rules, 1989 andtherefore the impugned order has rightly been passed. It is alsocontended that against the impugned order since an alternativeremedy of appeal is available, the petitioner cannot maintain this writpetition without exhausting such remedy.

I have heard the learned counsel for both the parties.

It is not in dispute that the Nizams Institute of Medical SciencesEmployees (Control & Appeal) Rules, 1986 were made by the Boardof the NIMS in exercise of the powers conferred by the GoverningCouncil and the same came into force on 28.6.1986. However, it wasresolved by the Executive Board of the Institute vide ResolutionNo.741 in its 36[th] meeting to adopt the Rules issued inG.O.Ms.No.487, G.A.D., dated 14.9.1992 until Rules are framed afreshby the NIMS to deal with the disciplinary cases arising in the Instituteand that the A.P. Employees (Classification, Control & Appeal) Rules,1991 as amended from time to time shall be applicable to all theemployees of the NIMS.

It is also clear from the proceedings of the 1[st] respondent dated30.10.2008 that the Enquiry Officer was appointed to enquire into theallegations levelled against the petitioner in exercise of powersconferred under Rule 20 (2) of the CCA Rules, 1991. In thecircumstances, the impugned order dated 30.12.2008 has to be tracedonly to the power conferred under CCA Rules, 1991 and Rule 7(2) ofthe NIMS Employees (Control & Appeal) Rules referred to in theimpugned order has no relevance.

The learned counsel for the petitioner while submitting that themajor penalty of reduction to the lower post cannot be imposed without conducting the detailed enquiry as contemplated under Rule20 of the CCA Rules, vehemently contended that the impugned orderis liable to be set aside since no enquiry at all was conducted beforeissuing the impugned order. In support of his submission, the learnedcounsel for the petitioner relied upon a decision of the Full Bench ofthis Court in GOVERNMENT OF A.P. v. M.A. MAJEED[[1]].

On the other hand, the learned counsel appearing for therespondent contended that since it is an admitted fact that the writpetitioner was unauthorizedly absent and the said fact was also borneout of the record, no separate charge-sheet as contended by the writpetitioner is required. The learned counsel also pointed out from theenquiry report dated 17.11.2008 that the petitioner had appearedbefore the Enquiry Officer on 14.11.2008 and admitted the guilt.

The penalty imposed against the petitioner under the impugnedorder i.e., reduction to the lower post of Assistant Registrar is a majorpenalty as specified in Rule 9 (vi) of CCA Rules, 1991. Rule 20 whichprovides the procedure for imposing the major penalties states that nomajor penalty shall be imposed except after an enquiry is held inaccordance with Rules 20 & 21. Rule 20 (3) mandates that thedisciplinary authority himself has to draw up the substance ofimputations of misconduct into definite articles of charge and the sameshall be served on the delinquent along with the statement of imputations of misconduct and a list of documents and witnessesrequiring the delinquent to submit a written statement of his defenceand whether he desires to be heard in person. After receiving thewritten statement of defence from the delinquent, the disciplinaryauthority may itself inquire into the articles of charge or appoint aninquiring authority for the said purpose. Rule 20 (7) further made itclear that the Inquiring Authority has to give a notice in writing as tothe date fixed for enquiry and an opportunity should be given to thedelinquent to avail the assistance of any other Government Servant topresent the case on his behalf. Rule 21 also provides in detail theaction to be taken by the disciplinary authority on receipt of the enquiryreport.

Admittedly no such procedure was followed in the present case.As noticed above, no opportunity was given to the petitioner to submithis written statement in defence before appointing the Enquiry Officerand the so-called enquiry was conducted without any notice in writingto the petitioner. Thus it is clear that there was a clear violation ofthe procedure prescribed under the CCA Rules and therefore theimpugned order dated 30.12.2008 is liable to be set aside.

Nothing could be placed before this Court by the 1[st]respondent to show that any fresh Rules have been framed by theNIMS to deal with the disciplinary cases arising in the Institute. Hence,the procedure prescribed in CCA Rules alone is applicable.

It is also relevant to notice that during the pendency of this writpetition the petitioner retired from service on 31.5.2009 on attaining theage of superannuation. In the circumstances, while setting aside theimpugned order dated 30.12.2008, it is made clear that this shall notpreclude the respondents to take appropriate action as permissibleunder law against the petitioner for the alleged irregularities, if soadvised.

Writ Petition is accordingly disposed of. No costs.

Dt. 30.12.2009 gbs

[1]2006 (1) ALT 661 (F.B.)

____________G. ROHINI,J.