WP/1639/2003 of A. Shankar, Vs Society for Training AND Employment Promotion (Step) on 31 December 2012

ORDER:

In this writ petition under Article 226 of the Constitution, petitioneris questioning the proceedings Rc.No.SES/977/ 2001-02 dated05.01.2003 of the second respondent (District Collector & Chairman,Nizamabad) dismissing him from service as illegal.

2. The petitioner earlier worked as a Junior Assistant in the office ofthe Chief Executive Officer, Society for Training & EmploymentPromotion at Nizamabad. The record would disclose that by memodated 27.03.2001 in all 15 charges were framed and disciplinaryenquiry was initiated. After conducting enquiry, the Deputy Director ofAdult Education & Enquiry Officer, Nizamabad, submitted his reportdated 02.11.2002 holding that 4 charges were not proved and ascriminal cases were pending in respect of 4 other charges he did notrecord any finding on those charges. He further held that one of thecharges was partly proved and the remaining charges were proved. Basing on the above enquiry report and calling for the explanation ofthe petitioner the District Collector, Nizamabad, who is said to be thecompetent authority by his order dated 05.01.2003 dismissed thepetitioner from service.

3. Thereafter the petitioner made a representation dated04.09.2006 before the Hon’ble Minister for Revenue and YouthServices. Following that representation the Government of AndhraPradesh in its memo dated 07.04.2007 directed the District Collector,Nizamabad, to re-enquire into the matter and submit a report.

4. Thereafter the District Collector appointed the District RevenueOfficer, Nizamabad, to conduct a fresh enquiry. Accordingly, heconducted enquiry afresh and submitted report dated 30.09.2009

holding that Charge Nos.3 to 7 & 9 were proved, Charge Nos.1, 2, 8and 11 were not proved and Charge No.15 partly proved. He pointedout that criminal cases are pending against Charge Nos.10 and 12 to14 and therefore he did not record any finding on those charges.

5. Thereafter the petitioner again submitted a representation dated26.02.2010 to the Government. It appears that this representation wasmade after the criminal case i.e. C.C.No.602 of 2009 on the file of theSpecial Judicial Magistrate of First Class for trial of Prohibition &Excise Offences, Nizamabad, ended in acquittal by judgment dated26.03.2010. In that representation the petitioner prayed forreinstatement. The Government however by memo dated 12.01.2011considered that representation as an appeal from the original orderdated 05.01.2003 of the District Collector and after considering thematter, as the memo reads, rejected that representation holding thatthere were no grounds to interfere. All this is subsequent history but inthe writ petition the petitioner is questioning only the District Collector’sorder dated 05.01.2003.

6. The contention of Sri S.Satyam Reddy, the learned counsel forpetitioner, is that initially the enquiry officer who conducted an enquiryand submitted his report dated 02.11.2002 did not examine anywitness in proof of the charges which were held proved against thepetitioner and he merely referred to some records and the explanationof the petitioner and found some of the charges framed against thepetitioner as proved. He pointed out that the second charge relates toa financial transaction pertaining to certain cheques issued in favour ofShivaji Yuvashakthi Sangam and other similar sangams. He pointedout that the findings of the first enquiry officer would show that therewas only delay in issuance of the cheques and deposit of the chequesin some other banks and there was no misappropriation. Even SriGangula Ashok Kumar Reddy, the learned Standing Counsel for theSociety for Training & Employment Promotion, in the course of

Arguments

arguments conceded that there was no misappropriation as indicatedin Charge No.2. The explanation of the petitioner would show that hedid not issue the cheques because of certain defects in thedocumentation and the delay occurred for rectification of the saiddefects. Then turning to Charge No.3 which relates to processing theproposals for sanction of financial assistance to another fourassociations but he stated that he did not send those proposals.

7. It may be noted that with regard to all the charges even thoughthe petitioner has denied the same, the first enquiry officer after goingthrough the files concluded that some of the charges were foundproved. Even the second enquiry officer who conducted the re-enquiryproceeded in the same manner.

8. On the other hand, the District Collector’s order dated05.01.2003 says that the enquiry was held in accordance with Rule 20of the Andhra Pradesh Civil Services (Classification, Control andAppeal) Rules, 1991. The said Rule 20 contemplates that whencharges are denied by the delinquent, the necessary evidence has tobe recorded in the present of the delinquent. Once that is not done, thewhole enquiry, it follows, stands vitiated especially when there isdenial. In the present case the petitioner has not admitted any of thecharges. He went on denying every charge. In such a situation, eitherthe first or the second enquiry officer should have examined theconcerned persons who can speak about the charges framed againstthe petitioner in order to come to a conclusion whether the charges areproved or not. In doing so, it was always open for the department andas well as the delinquent to examine and cross-examine thewitnesses. It is well settled that mere existence of a document is oneaspect and its proof is another aspect and it is equally applicable todepartmental proceedings also.

9. Another aspect to be noted here is that subsequently the petitioner after filing the present writ petition submitted a representationdated 04.09.2006 complaining against the dismissal order. Afterreceiving that representation the Government, it appears, on theinstructions from the concerned Honourable Minister, issued the memodated 07.04.2007 which is already referred to above directing theDistrict Collector to order a fresh enquiry which is termed as a re-enquiry. Thereafter the District Revenue Officer concerned has heldthe enquiry and he too submitted a report finding that some of thecharges are proved and some of them are not proved and some wereleft to the decision of the criminal court where the criminal case ispending as the said charges are pertaining to that criminal case. TheGovernment after considering that representation which I have alreadymentioned supra rejected it treating it as an appeal against the originalorder of the District Collector. It is not necessary to comment againstthe above procedure.

10. It would be sufficient to note that the first enquiry report and theimpugned order dated 05.01.2003 of the District Collector and as wellas the subsequent enquiry report submitted by the District RevenueOfficer would show that they did not examine any of the witnesses andinstead they merely proceeded to give their findings based on the filesand the explanation of the petitioner and the criminal case against himultimately ended in acquittal. In these circumstances I am of theopinion that the entire proceedings have to be quashed against thepetitioner as contrary to the Andhra Pradesh Civil Services(Classification, Control and Appeal) Rules, 1991.

11. Accordingly, this writ petition is allowed and the order dated05.01.2003 of the District Collector and the subsequent order whichpurports to have been passed in an appeal which is not questionedand which the Government ought not to have entertained when the writpetition is pending are set aside and the petitioner is directed to bereinstated into service immediately. It shall however be open for the

respondents to hold a fresh enquiry, if they are so advised. As thepetitioner is now reinstated into service because of the illegalities inthe procedure followed, it follows that he is entitled to full back wagesfrom the date of his dismissal to the date of his reinstatement. So faras the regularization of his suspension period and allowances for thatperiod are concerned the appropriate authorities may pass necessaryorders under the relevant rules.

12. The writ petition is accordingly allowed. No costs.

31[st] December 2012CVRK

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N.RAVI SHANKAR, J