WP/28013/2008 of The Government of A.P Vs A.Venkateswara Sarma on 24 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

WEDNESDAY, THE TWENTY FOURTH DAY OF DECEMBERTWO THOUSAND AND EIGHT

PRESENTTHE HON'BLE MR JUSTICE GHULAM MOHAMMEDand THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY

WRIT PETITION NO : 28013 of 2008

Between:

1 The Government of A.P rep.by its Secretary to Govt Finance &Planning(F.W.W.A.II)

Dept Secretariat Buildings Hyderabad

2 The Director of Works Accounts Officer Govt of A.P M-3 Block 1st Floor Manoranjam Complex M.J Road Hyderabad

.....

PETITIONER(S)

AND

A.Venkateswara Sarma retired as Divisional Accounts Officer Gr.II H.No.6-3-22/5/4 Flat No.204 Sri Sairam Parment prem Manager Khairatabad Hyderabad

.....RESPONDENT

Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to to issue a writ order or direction more particularlyone in the nature of writ of of Certiorari calling for the records relating tothe orders of the Hon'ble A.P Admn Tribunal Hyderabad passed in O.ANo.1209/2008 dt 17-06-2008 as being erroneous illegal andunreasonable and quash the same and pass Counsel for the Petitioner:GP FOR SERVICES II

Counsel for the Respondent No.: .

The Court made the following :

ORDER: (Per Sri Justice GHULAM MOHAMMED)

This Writ Petition is filed in the nature of a Writ of Certiorari tocall for the records relating to the order-dated 17.6.2008 passed inO.A.No. 1209 of 2008 on the file of Andhra Pradesh AdministrativeTribunal, Hyderabad and quash the same as being illegal anderroneous. The Tribunal by the impugned order allowed the O.A. andset aside the proceedings dated 6.5.2008 as the same are against theapplicant in accordance with APCS (CC&A) Rules, 1991.

O.A. was filed by the applicant under Section 19 of theAdministrative Tribunals Act, 1985 praying as under:

(a) declare that no disciplinary proceedings are pending against theapplicant in accordance with APCS (CCA) Rules, 1991 and nodisciplinary proceedings can be maintained and no disciplinaryproceedings can be maintained and continued on an issue relating tothe year 1994 (b) to further declare that the applicant is entitled forgrant of SPP scale on completion o 16 years of service andpromotion as Divisional Accounts Officer , Grade I as and when itwas due to him and when such benefit was granted to his juniors and(c) consequently to direct the respondents to release all the retirementbenefits including gratuity and full pension due and payable to himwith 18% interest on the amounts due to him from the date of due tillthe date of payment with all consequential benefits.”

Brief facts of the case are that applicant was working as aSenior Assistant and he was appointed as a Divisional AccountsOfficer on 4.9.1987 and retired from service on attaining the age ofsuperannuation on 31.8.2006 and no retrial benefits have been paid to the applicant till date except provisional pension. It is the further casethat during the year 1994, while he was working as DivisionalAccounts Officer, Grade II in Tribal Welfare Division, Bhadrachalam,certain allegations have been made with respect to the irregularitiesthat took place in execution of bore well under Agricultural Rural WaterSupply Scheme. He was served with Memo dated 11.4.2000, and thepetitioners straight away referred the matter to the Commissioner ofInquiries, but nothing culminated after the matter has been referred tothe Commissioner of Inquiries. Therefore, he has approached theTribunal to declare that no disciplinary proceedings are pendingagainst him in accordance with APCS (CCA) Rules and for release ofpension and other benefits.

The Tribunal found that the enquiry by the Commissioner ofInquiries and the subsequent show cause notice are not in accordancewith APCS (CC &A) Rules, 1991 and mandatory provisions have notbeen followed and hence the said proceedings have to be declared asillegal and accordingly, set aside the same. It was also held that theapplicant is entitled for all pensionary benefits to be released forthwithand it is always left open for the petitioners to proceed against theapplicant.

The learned Government Pleader contended that therespondent has participated in the inquiry and the Tribunal ought not tohave allowed the O.A and the finding arrived at by the Tribunal isunjust and erroneous since the respondent has pursuant to the memoissued by the authorities submitted his defence and enquiry officer wasappointed who submitted a report stating that the charges have provedand at that stage he has approached the Tribunal seeking to quash theentire proceedings and therefore, the relief itself is unwarranted andunjust. He further contended that once the applicant has participatedand having not challenged in the beginning and invited report againsthim by the enquiry officer holding that the charges have been proved, the tribunal ought not to have granted relief. He has relied upon thejudgment reported in STATE BANK OF PATIALA VS. S.K.SHARMA[[1]]. Paragraphs 31 and 32 of the cited judgment need to benoted and they read as hereunder:

“Now, coming back to the illustration given by us in thepreceding paragraph, would setting aside the punishment andthe entire enquiry on the ground o aforesaid violation of sub-clause (iii) be in the interests of justice or would it be itsnegation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interestsof justice equally demand that the guilty should punished andthat technicalities and irregularities which do not occasionfailure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve theends of justice. They cannot be perverted to achieve the veryopposite end. That would be a counter-productive exercise.32. We may summarize the principles emerging from theabove discussion. (These are by no means intended to beexhaustive and are evolved keeping in view the context ofdisciplinary enquiries and orders of punishment imposed by anemployer upon the employee):

(1) An order passed imposing a punishment onan employee consequent upon a disciplinary/departmentalenquiry in violation of the rules/regulations/statutory provisionsgoverning such enquiries should not be set asideautomatically. The Court or the Tribunal should enquirewhether (a) the provision violated is of a substantive nature or(b) whether it is procedural in character.(2)A substantive provision has normally to be

(2) A substantive provision has normally to becomplied with as explained hereinbefore and the theory osubstantial compliance or the test of prejudice would not beapplicable in such a case.(3)In the case of violation of a procedural

(3) In the case of violation of a proceduralprovision, the position is this; procedural provisions aregenerally meant or affording a reasonable and adequateopportunity to the delinquent officer/employee. They are,generally speaking, conceived in his interest. Violation of anyand every procedural provision cannot be said to automaticallyvitiate the enquiry held or order passed. Except cases fallingunder ‘no notice’, ‘no opportunity’ and ‘no hearing’ categories,the complaint of violation of procedural provision should beexamined from the point of view of prejudice, viz., whethersuch violation has prejudiced the delinquent officer/employeein defending himself properly and effectively. If it is found thathe has been so prejudiced, appropriate orders have to be madeto repair and remedy the prejudice including setting aside theenquiry and/or the order of punishment. If no prejudice isestablished to have resulted there from, it is obvious, nointerference is called for. In this connection, it may be remembered that there may be certain procedural provisions,which are of a fundamental character, whose violation is byitself proof of prejudice. The Court may not insist on proof ofprejudice in such cases. As explained in the body of thejudgment, take a case where there is a provision expresslyproviding that after the evidence of the employer/government isover, the employee shall be given an opportunity to leaddefence in his evidence, and in a given case, the enquiryofficer does not give that opportunity in spite of the delinquentofficer/employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such acase. To repeat, the test is one of prejudice, i.e., whether theperson has received a fair hearing considering all things. Now,this very aspect can also be looked at from the point of view ofdirectory and mandatory provisions, if one is so inclined. Theprinciple stated under (4) herein below is only another way oflooking at the same aspect as is dealt with herein and not adifferent and distinct principle. (4)(a) In the case of a procedural provision,

(4) (a) In the case of a procedural provision,which is not of a mandatory character, the complaint ofviolation has to be examined from the standpoint of substantialcompliance. Be that as it may, the order passed in violation ofsuch a provision can be set aside only where such violationhas occasioned prejudice to the delinquent employee.(b) In the case of violation of a procedural

(b) In the case of violation of a proceduralprovision, which is of a mandatory character, it has to beascertained whether the provision is conceived in the interestof the person proceeded against or in public interest. If it isfound to be the former, then it must be seen whether thedelinquent officer has waived the said requirement, eitherexpressly or by his conduct. If he is found to have waived if,then the order of punishment cannot be set aside on theground of said violation. If on the other hand, it is found thatthe delinquent officer/employee has not waived it or that theprovision could not be waived by him, then the Court orTribunal should make appropriate directions (include the settingaside of the order of punishment), keeping in mind theapproach adopted by the Constitution Bench in B.Karunakar,(1994 AIR SCW 1050). The ultimate test is always the same,viz., test of prejudice or the test of fair hearing, as it may becalled.

(5) Where the enquiry is not governed by anyrules/regulations/statutory provisions and the only obligation isto observe the principles of natural justice ---or, for that mater,wherever such principles are held to be implied by the verynature and impact of the order/action –the Court or the Tribunalshould make a distinction between a total violation of naturaljustice (rule of audi alteram partem) and violation of a facet ofthe said rule, as explained in the body of the judgment. Inother words, a distinction must be made between ‘noopportunity’ and no adequate opportunity, i.e., between ‘nonotice’/ ‘no hearing’ and ‘no fair hearing”. (a) In the case offormer, the order passed would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses to). In such cases,normally, liberty will be reserved for the Authority to takeproceedings afresh according to law, i.e., in accordance withthe said rule (audi alteram partem). (b) But in the latte case,the effect of violation (of a facet of the rule of audi alterampartem) has to be examined from the standpoint of prejudice;in other words, what the Court or Tribunal has to see is whetherin the totality of the circumstances, the delinquentofficer/employee did or did not have a air hearing and theorders to be made shall depend upon the answer to the saidquery. (It is made clear that this principle (No. 5) does notapply in the case of rule against bias, the test in which behalfare laid down elsewhere.)”

On the other hand, the learned counsel appearing for therespondent-applicant vehemently contended that the memo is thebasis for initiating the disciplinary proceedings on the employee andhe has drawn our attention to Rule 20 of the Classification, Control and Appeal Rules. Rule 20(3) reads as under:

“Where it is proposed to hold an inquiry against a Government servantunder this rule and Rule 21, (the disciplinary authority or the cadre controllingauthority who is not designated as disciplinary authority and who is subordinateto the appointing authority can draw up or cause to be drawn up)—

(i) the substance of the imputations of misconduct ormisbehaviour into definite and distinct articles of charge;misbehaviour into definite and distinct articles of charge;(ii)a statement of the imputations of misconduct ormisbehaviour in support of each article of charge, whichshall contain;misbehaviour in support of each article of charge, whichshall contain; (a)a statement of all relevant acts including any admission orconfession made by the Government servant;confession made by the Government servant;

(b) a list of documents by which, and a list of witnesses bywhom, the articles of charge are proposed to be sustained.whom, the articles of charge are proposed to be sustained.

He also drawn our attention to Part V, procedure for imposing penalties. Rule 20 (5) (c ), reads as under:

“Where the disciplinary authority itself inquires into any article of chargeor appoints a inquiring authority for holding an inquiry into such charge,it may, by an order, appoint a Government servant or a legalpractitioner, to be known as the “Presenting Officer” to present on itsbehalf the case in support of the articles of charge.”

He relied on the judgment reported in NAR SINGH PAL VS.

UNION OF INDIA AND OTHERS[[2]].

We have perused the entire material made available on record. The disciplinary proceedings begins from the issuance of the chargememo but there is no charge memo indicating the charges and theallegations levelled against him and also the list of witnesses so as tosubstantiate the allegations made against the respondent herein. Thedelinquent employee will have valuable right to examine thewitnesses. These things are missing in this case. In NAR SINGH PALVS. UNION OF INDIA AND OTHERS (supra-2) the Supreme Court at paragraph 13 held as under:

“The Tribunal as also the High Court, both appear to have been movedby the fact that the appellant had encashed the cheque through whichretrenchment compensation was paid to him. They intended to saythat once retrenchment compensation was accepted by the appellant,the chapter stands closed and it is no longer open to the appellant tochallenge his retrenchment. This, we are constrained to observe, waswholly erroneous and was not the correct approach. The appellant wasa casual labour who had attained the “temporary” status after havingput in ten years of service. Like any other employee, he had to sustainhimself, or, may be, his family members on the wages he got. On thetermination of his services, there was no hope left for payment ofsalary in future. The retrenchment compensation paid to him, whichwas only a meager amount of Rs. 6,350/-, was utilized by him tosustain himself. This does not mean that he had surrendered all hisconstitutional rights in favour of the respondents. Fundamental Rightsunder the Constitution cannot be bartered away. They cannot becompromised nor can there be any estoppel against the exercise ofFundamental Rights available under the Constitution. As pointed outearlier, the termination of the appellant from service was punitive innature and was in violation of the principles of natural justice and hisconstitutional rights. Such an order cannot be sustained.”

Under those circumstances, the Tribunal has rightly proceededwith the matter holding that the consequential enquiry by theCommissioner of Inquiries and the subsequent show cause notice arenot in accordance with APCS (CC &A) Rules, 1991 and mandatoryprovisions have not been followed and hence, the said proceedingshave to be declared as illegal and accordingly set aside and theapplicant is entitled for all pensionary benefits to be released forthwith. It left open for the petitioners herein to proceed against the applicant inaccordance with Rules, if they so desire. Therefore, we see no error in the order impugned in this Writ Petition warranting interference bythis Court in exercise of powers under Article 226 of the Constitution. Accordingly, the Writ Petition is dismissed. There shall be noorder as to costs.

_____________________________

GHULAM MOHAMMED, J

______________________________

B. SESHASAYANA REDDY, JDt. 24.12.2008KA

// TRUE COPY //

------ REGISTRARSECTION OFFICER

To

1. 2CD copies

[1]AIR 1996 SUPREME COURT 1669AIR 1996 SUPREME COURT 1669

[2](2000) 3 SUPREME COURT CASES 588(2000) 3 SUPREME COURT CASES 588