Telangana High Court
Jarpala Ramarao vs The Deputy Director, on 30 September, 2020
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Writ Petition Nos.47101 of 2018 and 47116 of 2018
COMMON ORDER :
In these Writ Petitions, petitioners have challenged orders dt.03.12.2018 passed by the Deputy Director (T.W.), Bhadradri Kothagudem District (1st respondent) removing the petitioners from posts of Telugu Pandit Grade-II in the Ashram High Schools at Gondigudem, Aswapuram Mandal, Bhadradri Kothagudem District and Peruru Village, Bhoopalapally Jayashankar District run by the respondents.
The Background facts
2. Both the petitioners belong to the Schedule Tribe (Lambada) Community.
3. They had been appointed as Grade-II Telugu Pandits by the 1st respondent pursuant to a selection in Special DSC-2012 of Khammam District.
4. The petitioner in W.P.No.47116 of 2018 was working in Ashram Girls High School, Boddugudem of the then Chintur Mandal, whereas the petitioner in W.P.No.47101 of 2018 was working in Ashram High School, Repaka of the then Kunavaram Mandal.
5. The qualification required for the said post is a pass in M.A., (Telugu) and it is the case of the petitioners that they acquired the said MSR,J ::2:: wp_47116&47101_2018 qualification by Distance Education mode from Osmania University Distance Education Centre, Hyderabad.
OA Nos.1296 of 2016 and 1293 of 2016
6. Initially, they were dismissed from service on 17.03.2016 on the ground that certificates in M.A., (Telugu) had been found to be non-genuine by the Controller of Examinations of Osmania University.
7. Challenging the same, the petitioners filed OA Nos.1296 of 2016 and 1293 of 2016 respectively and the orders of termination were set aside.
Writ Petition Nos.33757 and 33760 of 2016
8. After receipt of the orders of the Tribunal, the petitioners were kept under suspension and articles of charges were issued by framing two charges. The dismissal orders were kept in abeyance in view of the orders passed by the Tribunal dated 19.07.2016.
9. An order was passed appointing an Enquiry Officer for conducting the enquiry and the Assistant Tribal Welfare Officer, Yellandu was appointed as Enquiry Officer on 19.07.2016 itself. The articles of charges were received by the petitioners on 22.07.2016 and the petitioners submitted their reply on 12.08.2016.
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10. The petitioners were asked to appear before the Enquiry Officer on 16.08.2016 and on that day they attended but sought time for producing the certificates.
11. However, without granting such time, an enquiry report was submitted to the disciplinary authority, 1st respondent; and based on the said report, a show cause notice dt.15.09.2016 was issued to both petitioners proposing to dismiss the petitioners from service.
12. Challenging the said show cause notices dt.15.09.2016, the petitioners filed Writ Petition Nos.33757 and 33760 of 2016.
13. In the said Writ Petitions, petitioners contended that as per the decision of this Court reported in Government of AP v. M.A. Majeed1, the question of appointing an Enquiry Officer even before receiving reply to the charges does not arise; that articles of charges were framed on 19.07.2016 and the Enquiry Officer and Presenting Officer were appointed on the same day; and that the Enquiry Officer submitted his report on 22.08.2016 without granting time as requested. Relying on the decision in Union of India v. Mohd. Ramzan Khan2, it was contended that the Enquiry Officer's reports should be made available to petitioners in order to submit their explanations and that this was not done by the 1st respondent.
14. The respondents however contended that if there are any legal infirmities they will take necessary steps for curing the infirmities, but 1 2006 (1) A.L.T. 661 (F.B.) 2 (1991) 1 S.C.C. 588 MSR,J ::4:: wp_47116&47101_2018 this Court ought not to interfere with the show cause notices issued on 15.09.2016.
15. This Court rejected the plea of petitioners that the appointment of Enquiry Officer on 19.07.2016 is bad in Law, but upheld their plea about not granting of time by the Enquiry Officer for production of the original certificates after they put in their appearance on 16.08.2016.
16. It allowed partly Writ Petition Nos.33757 and 33760 of 2016 on 30.09.2016, with the following directions :
"In the circumstances, the petitioners are given time to submit the certificates required by the Enquiry Officer on or before
31.10.2016 and on receipt of the same or on failure of the same, it is open to the Enquiry Officer to prepare a report and submit to the competent authority. The report so submitted shall be made available to the petitioners along with show cause notice in order to submit their explanations on the report. The competent authority shall take action only after receipt of explanations from the petitioners. In view of the same, the report dated 22.08.2016 submitted by the Enquiry Officer and present show cause notice dated 15.09.2016 are set aside and the petitioners are given liberty to submit the certificates as aforesaid within the said period. The Writ Petitions are, accordingly, allowed to the extent as indicated above. There shall be no order as to costs." (emphasis supplied).
Writ Appeal Nos.1143 and 1144 of 2016
17. The petitioners themselves challenged the Common Order dt.13.09.2016 in Writ Petition Nos.33757 and 33760 of 2016 by filing MSR,J ::5:: wp_47116&47101_2018 Writ Appeal Nos.1143 and 1144 of 2016 before a Division Bench of this Court.
18. The Division Bench dismissed the Writ Appeals on 28.10.2016 confirming the order of the single Judge and granted time to the petitioners till 15.11.2016 to go before the Enquiry Officer and produce the certificates. The Division Bench held that the Disciplinary Authority cannot pre-determine the penalty, before the objections are filed to the findings of the Enquiry Officer, and that the learned single Judge was right in setting aside the enquiry reports and the show-cause notices; that after the certificates are produced before the Enquiry Officer by the petitioners, the Enquiry Officer shall keep an open mind and give sufficient opportunity to the appellants, before concluding the proceedings and submitting reports.
19. Thus, the Division Bench in its orders did not interfere with the direction granted by the learned single Judge that the Enquiry report should be made available to the petitioners along with the show-cause notice in order to enable the petitioners to submit their explanations on the report. The Division Bench also did not dispense with the conduct of enquiry by the Enquiry Officer who was already appointed by the Disciplinary Authority.
20. But, instead of conducting enquiry through the Enquiry Officer and obtaining a fresh enquiry report (because the earlier enquiry report dt.22.08.2016 submitted by the Enquiry Officer had been set MSR,J ::6:: wp_47116&47101_2018 aside in the order dt.13.09.2016 in Writ Petition No.33757 and 33760 of 2016), the 1st respondent passed orders on 21.01.2017 removing the petitioners from service without conducting disciplinary enquiry through the Enquiry Officer.
Writ Petition No.19212 of 2017 and Writ Petition No.19234 of 2017
21. Petitioners questioned these removal orders dt.21.01.2017 in Writ Petition No.19212 of 2017 and Writ Petition No.19234 of 2017; and in WPMP.No.23396 of 2017 in Writ Petition No.19212 of 2017 and WPMP.No.23419 of 2017 in Writ Petition No.19234 of 2017, interim orders were granted on 14.06.2017 suspending the orders of removal dt.21.01.2017 observing that the said removal orders were based on the enquiry report dt.22.08.2016 which had already been set aside and cannot be relied upon to remove the petitioners prima facie. The said Writ petitions are still pending before the High Court of Telangana.
The instant Writ petitions in 2018
22. In spite of the suspension of the removal order dt.21.01.2017 as above in Writ Petition No.19212 of 2017 and Writ Petition No.19234 of 2017, the petitioners were not continued in service but were kept under suspension and paid allegedly subsistence allowance only up to August, 2018 and not paid subsistence allowance from September to December, 2018 by the respondents.
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23. A notice was issued on 20.09.2018 to petitioner in Writ Petition No.47116 of 2018 and on 30.10.2018 to the petitioner in Writ Petition No.47101 of 2018 to produce on 10.11.2018 and 01.11.2018 before the 1st respondent their original certificates. The Notice dt.20.09.2018 issued to the petitioner in Writ Petition No.47116 of 2018 also asked the said petitioner to show-cause why he should not be removed from Government service on the basis of the Enquiry Report dt.22.08.2016, which had already been set aside in the order dt.30.09.2016 in Writ Petition No.33760 of 2016.
24. Petitioners contend that they gave representation on 12.11.2018 stating that removal orders already passed on 22.01.2017 against them had been suspended on 14.06.2017 in WPMP.No.23396 of 2017 in Writ Petition No.19212 of 2017 and in WPMP.No.23419 of 2017 in Writ Petition No.19234 of 2017, that the said Writ Petitions were pending consideration before the High Court, and so another enquiry cannot be conducted and should be stopped till those Writ Petitions are disposed of.
25. But, notwithstanding the same, an Enquiry Officer was appointed on 29.10.2018 afresh. He did not conduct any disciplinary enquiry but submitted a report on 22.11.2018 to the disciplinary authority. The said enquiry report was not communicated to the petitioners. On the basis of the said enquiry report, removal orders were passed on 03.12.2018 against both the petitioners which are impugned in the present Writ Petitions.
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The contentions of counsel for petitioners
26. It is contended by the petitioners in these Writ Petitions that the report dt.22.11.2018 of the Enquiry Officer was not communicated to the petitioners in spite of the directions of the High Court in its orders dt.30.09.2016 in Writ Petition No.33757 and 33760 of 2016 which were confirmed in Writ Appeal No.1143 and 1144 of 2016 on 28.10.2016 by the Division Bench; that there is willful disobedience of the said orders; and the decision of the Supreme Court in ECIL v. Karunakar3 was also violated.
27. It is also contended that though 1st respondent passed orders of removal on 21.01.2017 against the petitioners, they had been challenged in Writ Petition Nos.19212 and 19234 of 2017 by the petitioners and were suspended by this Court therein on 14.06.2017 in the said Writ Petitions; and so, it was not open to the respondents to interfere with the same by passing fresh orders of removal on the same grounds.
28. It is also contended that there is a violation of Rule 20 of the Telangana State CS & CCA Rules by the respondents; and conducting the enquiry by the Enquiry Officer after stopping the subsistence allowance payments in August, 2018 renders the impugned orders illegal and void.
3 AIR 1994 SC 1074 ( 5 Judge bench) MSR,J ::9:: wp_47116&47101_2018 The events after filing the Writ petitions
29. On 27.12.2018, when both the Writ Petitions were listed for 'Admission', this Court directed the Government Pleader for Services
- II to produce copy of the Enquiry Report dt.22.11.2018 which was relied upon in the orders of removal dt.03.12.2018 and also produce proof of service of the said Enquiry Report on the petitioners. The matter was adjourned to 31.12.2018.
30. On 31.12.2018, the Government Pleader for Services - II did not produce any material to show service of Enquiry Report dt.22.11.2018 on the petitioner.
31. Therefore, this Court suspended in I.A.Nos.1 of 2018 in both Writ Petitions, the impugned orders dt.03.12.2018 removing the petitioners from service and directed the respondents to continue the petitioners in service, pending disposal of the Writ Petitions. I.A.Nos.1 of 2019 filed by 1st respondent
32. I.A.No.1 of 2019 was filed by the 1st respondent to vacate the said orders.
33. Along with the said I.A.No.1 of 2019, the 1st respondent filed proceedings RC.No.A2/DD(TW)/536/2012 dt.28.12.2018 forwarding the Enquiry Report dt.22.11.2018 to the petitioners allegedly as per the directions dt.30.09.2016 in Writ Petition No.33757 and 33760 of 2016 as confirmed in Writ Appeal No.1143 and 1144 of 2016.
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Consideration by the Court
34. Admittedly, the orders of removal of the petitioners had been passed on 03.12.2018.
35. Therefore, the furnishing of Enquiry Reports dt.22.11.2018 to the petitioners after passing of orders of removal on 03.12.2018, i.e., on 28.12.2018 cannot be said to be in conformity with the directions dt.30.09.2016 in Writ Petition No.33757 and 33760 of 2016 as confirmed in Writ Appeal No.1143 and 1144 of 2016.
36. In the order dt.30.09.2016 of the learned single Judge, it was directed that 'the report so submitted shall be made available to the petitioners along with show-cause notice in order to submit their explanations on the report. The competent authority shall take action only after receipt of explanations from the petitioners'.
37. Therefore, it was incumbent on the 1st respondent to furnish the enquiry report dt.22.11.2018 to the petitioners so that they can submit their explanations on the said report, i.e the furnishing of the enquiry report to the petitioners must be before the passing of the any order of punishment.
38. In ECIL ( 1 supra), the Supreme Court had declared that non - supply of the enquiry officer's report to a delinquent employee before passing an order of punishment is a violation of principles of natural justice. It held:
MSR,J ::11:: wp_47116&47101_2018 "29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
39. Therefore, there has been a violation of the common order dt.30.09.2016 in Writ Petition No.33757 and 33760 of 2016 as confirmed in the order dt.28.10.2016 in Writ Appeal Nos.1143 and 1144 of 2016, and also the decision of the Supreme Court in ECIL ( 1 supra), and this vitiates the impugned orders dt.03.12.2018 removing the petitioners from service.
40. Also, when the correctness of the removal orders dt.21.01.2017 passed by the 1st respondent (on the basis of enquiry report dt.22.08.2016 which had been set aside by this Court on 30.09.2016 in W.No.33757 and 33760 of 2016) against the petitioners is pending consideration before this Court in W.P.No.19212 and 19234 of 2017; the said removal orders were suspended on 14.06.2017 in W.P.M.P.Nos.23419 of 2017 in W.P.No.19234 of 2017 and in W.P.M.P.No.23396 of 2017 in W.P.No.19212 of 2017; and the said interim orders are subsisting; and no permission was granted to the respondents to conduct any fresh disciplinary enquiry against the MSR,J ::12:: wp_47116&47101_2018 petitioners, it is not open to the respondents to get an enquiry conducted through an enquiry officer newly appointed on 29.10.2018 by name K.Zaheeruddin, who submitted enquiry report dt.22.11.2018, on the basis of which removal orders were passed again on 03.12.2018 by 1st respondent.
41. This is because, on the same charges, there cannot be more than one disciplinary enquiry.
42. In Kanailal Bera v. Union of India4, the Supreme Court held:
"6. The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5-4-1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.
7. In K.R. Deb v. CCE5 this Court while considering the provisions contained in Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 held as under:
(SCC p. 105, paras 12-13) "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular 4 (2007) 11 SCC 517 5 (1971) 2 SCC 102 MSR,J ::13:: wp_47116&47101_2018 case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the inquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant.
The procedure adopted was not only not warranted by the Rules but was harassing to the appellant."(emphasis supplied)
43. Though learned Government Pleader for Services-III sought to contend that petitioners should be denied relief in the Writ Petitions because of production of fake original certificates to secure employment, on account of procedural irregularities committed by the respondents as mentioned above, this Court has no choice but to allow the Writ Petitions.
Conclusion
44. Accordingly, the Writ Petitions are allowed; the orders dt.03.12.2018 passed by the 1st respondent removing the petitioners from service are set aside; the petitioners shall be paid subsistence allowance as per the applicable Rules from September, 2018 till date within four (04) weeks from the date of receipt of copy of the order; and in future also they shall be paid subsistence allowance till MSR,J ::14:: wp_47116&47101_2018 W.P.No.19212 of 2017 and W.P.No.19234 of 2017 are finally disposed of.
45. I.A.Nos.1 of 2019 filed by respondents in both the Writ Petitions to vacate the order dt.31.12.2018 in I.A.Nos.1 of 2018 in W.P.No.47116 of 2018 and W.P.No.47101 of 2018 are dismissed. No costs.
46. Consequently, miscellaneous petitions, pending if any, shall stand closed.
___________________________ M.S.RAMACHANDRA RAO, J Date : 29 .09.2020 Ndr/Vsv