Andhra Pradesh High Court - Amravati
N. Vijay Kumar vs The State Of Ap on 15 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.3601 OF 2021
ORDER:-
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:-
"......pleased to issue a writ, order or direction, more particularly one in the nature of WRIT OF MANDAMUS and after calling for the records pertaining to the impugned order vide Rc.No.18022/45/VIG/2019, dated 14.06.2019 passed by the 2nd respondent awarding the punishment of censure and treating the suspension period as EOL (Extra Ordinary Leave) and set aside the same by declaring as illegal, arbitrary, vagueness of charge, unconstitutional, contrary to the APCCA Rules and violative of Articles 14, 16 and 21 of the Constitution of India and pass such other order ....."
2. Heard Sri G.Tuhin Kumar, learned counsel for the petitioner, and the learned Government Pleader for Services - III appearing for the respondents.
3. Initially, the petitioner was appointed as Junior Assistant on compassionate grounds on 7.12.2009 and posted in the office of D.C.H.S., West Godavari District. The services of the petitioner were regularized by an order, dated 7.2.2011, in the category of Junior Assistant and later, transferred to the office of the Commissioner, A.P.Vaidya Vidhana Parishad under 25% quota on 10.3.2011. The probation of this petitioner was declared in the category of Junior Assistant on 9.1.2012.
The petitioner was promoted as Senior Assistant on 6.4.2013 and his probation was declared in that category on 28.4.2014. By virtue of G.O.Ms.No.103, HM & FW, dated 4.8.2019, the allocation was finally done and presently, he was allotted to Telangana Vaidya Vidhana Parishad i.e., respondent No.3 herein. 2
On 26.4.2019, the petitioner was placed under suspension by respondent No.2 vide Rc.No.18022/45/VIG/2019. The petitioner submitted a representation, dated 3.5.2019, to respondent No.2 requesting to revoke the suspension order and reinstate him into service but no purpose was served. However, on 17.5.2019, vide Rc.No.18022/45/VIG/2019, his suspension order was revoked and he was reinstated into service. On 21.5.2019, vide proceedings Rc.No.18022/45/VIG/2019/VC/2019, a Charge Memo was issued calling for written statement of this petitioner for a sole charge. The petitioner submitted his objections/explanation on 3.6.2019. On 14.6.2019, respondent No.2, vide proceedings Rc.No.18022/45/VIG/2019, awarded punishment of censure and treated the suspension period as Extra Ordinary Leave.
The petitioner now challenged the punishment imposed against him raising several contentions viz., the order imposing punishment of minor penalty against this petitioner is contrary to law and that it is violative of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 and the order is vague and requested to set aside the same.
4. During hearing, Sri G.Tuhin Kumar, learned counsel for the petitioner, reiterated the contentions and requested to set aside the impugned order.
5. Learned Government Pleader for Services - III appearing for the respondents contended that a statutory remedy of appeal is available under Rule 33(1) of A.P.C.S.(CCA) Rules and when a statutory remedy is available, the petitioner cannot invoke the 3 jurisdiction of this Court directly under Article 226 of the Constitution of India.
6. Undoubtedly, the impugned order is passed imposing penalty of censure treating the period of suspension as Extra Ordinary Leave (EOL) exercising power under F.R.53(b) of the Andhra Pradesh Fundamental Rules but the same was questioned on various grounds. Those grounds can be urged before the appellate authority, as an appeal lies against the order impugned under Rule 33 of A.P.C.S. (CCA) Rules.
7. Rule 33 of A.P.C.S. (CCA) Rules reads as under:-
"33. Orders against which appeal lies: - (1) Subject to the provisions of Rule 32 a Government servant may prefer an appeal, as hereinafter provided against all or any of the following orders, namely :
(i) an order of suspension made or deemed to have been made under Rule 8;
(ii) an order imposing any of the penalties specified in Rule 9 or Rule 10 whether made by the disciplinary authority or by an appellate or revising authority;
(iii) an order enhancing any penalty imposed under Rule 9 or Rule 10;
(iv) an order discharging him in accordance with the terms of his contract, if he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract, continuous service for a period exceeding five years at the time when his services are so discharged; and
(v) an order reducing or withholding the maximum pension, including an additional pension, admissible to him under the rules governing pension.
(2) Subject to the provisions of Rule 32, a member of a subordinate service may, as here-in-after provided, prefer an appeal against an order passed by an authority subordinate to 4 the Government (i) varying to his disadvantage his conditions of service, pay, allowances or pension as regulated in rules or in a contract of service, and (ii) interpreting to his disadvantage the provisions of any rules or contract of service whereby his conditions of service, pay, allowance or pension are regulated.
Explanation :- In this rule, the expressions 'Government Servant' and 'Member of a Subordinate Service' include a person who has ceased to be in Government Service." Thus, an appeal is provided against the impugned order but without preferring the appeal against the impugned order, the petitioner straight away approached this Court invoking discretionary jurisdiction of this Court under Article 226 of the Constitution of India. But this Court cannot exercise such jurisdiction when a statutory remedy of appeal is available to the petitioner in view of the law declared by the Apex Court in Genpact India Private Limited vs. Deputy Commissioner of Income Tax and another1. By applying the principle laid down in the judgment referred above, the petitioner is directed to approach the appellate authority in terms of Rule 33 of A.P.C.S. (CCA) Rules.
8. With the above direction, this Writ Petition is disposed of at the stage of admission. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date : 15.2.2021 AMD 1 (2019) 108 Taxman 340 (Delhi) 5 8 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.3601 OF 2021 Date : 15.02.2021 AMD