Andhra Pradesh High Court - Amravati
Chairman And Managing Director vs State Of Haryana And Others3 on 25 April, 2022
HON'BLE DR. JUSTICE K. MANMADHA RAO
WRIT PETITION No.7440 of 2011
ORDER :
This petition is filed under Article 226 of the Constitution of India for the following relief:-
"to issue a writ of Mandamus or any other appropriate writ or order or direction declaring the orders issued in proceedings No.2751/PW/APIIC/M(P)/07, dated 15.2.2011 of the Vice- Chairman and Managing Director, APIIC, Hyderabad, as illegal, unconstitutional, void, arbitrary and discriminatory and contrary to the APIIC CDA Regulations, 1974 and set aside the same and for issuing consequential direction to the respondent directing to reinstate the petitioner with all service benefits including payment of salary etc., with effect from 16.02.2011 and pass such other order or orders......."
2. Brief facts of the case are that the Andhra Pradesh Industrial Infrastructure Corporation Limited (for short "APIIC) is registered under the Companies Act, 1956 and it is wholly owned undertaking of Government of A.P. In exercise of the powers conferred under the Articles of Association of the Corporation, the Board of Directors made the APIIC Conduct, Disciplinary and Appeal (CDA) Regulations, 1974 which came to into effect from 26.09.1973 i.e., since the date of incorporation of the Corporation. The petitioner joined in the service of the Corporation on 03.09.1980 in the category of Clerk-cum-typist and subsequently he promoted. While he was working as Manager (AM), APIIC, Hindupur, he was trapped by the ACB Officials on the allegation of 2 accepting bribe. The Inspector of Police, ACB Anantapur district filed charge sheet against the petitioner for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and the same was numbered as C.C.No.12 of 2008 on the file of Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. Subsequently, he was placed under suspension from the service with effect from 2.5.2007 and was reinstated into service on 15.2.2010 in the office of Zonal Manger, APIIC, Kadapa. Vide order dated 2.8.2010 in C.C.No.12 of 2008 the petitioner was convicted. Aggrieved by the said judgment, the petitioner preferred an appeal before this Court vide Clr.A No.963 of 2010. This Court vide order dated 17.8.2010 in Crl.A.M.P.No.1481 of 2010 in Crl.A.No.963 of 2010 suspended the sentence of imprisonment imposed against the petitioner, pending appeal on certain conditions.
It is further submitted that the respondent has awarded punishment of dismissal from service vide proceedings No2751/PW/APIIC/M(P)/07, dated 15.02.2011 in view of the sentence of conviction on the criminal charges with immediate effect purported to be as per the procedure in Regulation of 29 of CDA Regulations. Hence, the present writ petition.
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3. Counter affidavit came to be filed by the respondent denying all the averments made in the petition and contended that the matter of continuing the petitioner, under suspension, was reviewed in the light of G.O.526, General Administration Department, dated 19.02.2008 pending finalization of the criminal case against the petitioner, he was reinstated into services of APIIC vide proceedings No.2751/PW/APIIC/07, dated 09.12.2010 and he was posted to Kadapa zone as Manager (AM). Even in the said proceedings, it was also specified that the reinstatement is without prejudice to the proceedings in the criminal case filed against the petitioner and any other offences punishable under any provisions of law.
It is further submitted that, in view of the above sentence of conviction imposed against the petitioner, the Competent Authority has examined the matter and awarded punishment of dismissal from service with immediate effect under Rule 29 of CDA Regulations of APIIC. Accordingly, the petitioner was dismissed from the service of APIIC vide proceedings No.2751/PW/APIIC/M(P)/07, dated 15.02.2011. It is further stated that as per Rule 29 of APIIC CDA Regulations, contained in Regulation 28, where a penalty is imposed on an employee on the grounds of his conviction on a criminal charge, the disciplinary authority may consider circumstances of the case and pass such other orders thereon as it deems fit. The averment of the 4 petitioner that he has represented to reconsider the matter of dismissal from the services of the Corporation is not correct and no representation is received from the petitioner till date. Hence, prayed to dismiss the writ petition.
4. Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioner and Sri V.Ch.Naidu, learned counsel for the respondent.
5. During hearing, this Court observed that there are no guidelines provided in the Rules for exercising the power by the respondent for awarding the major/extreme penalties like reduction to lower post or grade or to a lower stage in his incremental scale, compulsory retirement or dismissal from service and the respondent has been exercising the powers vested in him whimsically without disclosing any reasons much less proper or legal ones before awarding any such major penalties. Previously, in one order dated 29.11.1995 in B.Rajendra Rao v. The State of Andhra Pradesh, rep. by its Secretary to Government, Law and Legislative Department, Secretariat and 2 others1, this Court has directed the APIIC for conducting domestic enquiry as prescribed under the CDA regulations. As such, this respondent ought to have followed the procedure prescribed in Regulation 28 of the APIIC CDA regulations in this case before passing the impugned proceedings. 1 W.P.No.10049 of 1995 5
6. It is pertinent to mention here that, as per Rule 29 of the APIIC CDA Regulation, it is very clear to the effect in cases where a penalty is imposed on an employee on the ground of his conviction on a criminal charge, the disciplinary authority may consider the case and pass such orders thereon as it deems fit.
7. In the decisions of Hon‟ble Supreme Court reported in The Divisional Personnel Officer Southern Railway and another v. T.R. Challappan2 , wherein it was held that :
" ...Finally r.14(1) merely seeks to incorporate the principle contained in proviso (a) to Art. 311(2) of the Constitution which runs: thus "(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of o, those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given reasonable opportunity of making representation of the penalty proposed, but only on the basis of the evidence adduced during such inquiry:
Another important aspect of the matter is that a criminal court after. conviction does not impose any penalty but passes a sentence whether it is one of fine, or imprisonment or whipping or the like.."
In another case reported in Sudesh Kumar Versus State of Haryana and others3, wherein it was held that:
"5. It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311 (2)(b), as extracted above, would clearly show that no reasons whatsoever have been 2 AIR 1975 Supreme Court 2216(1) 3 (2005) 11 Supreme Court Cases 525 6 assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment, the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry.
6. A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges leveled against him. In the instant case the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."
8. On perusing the material available on record, it is to be noted that the regulations 28 and 29 of per Andhra Pradesh Industrial Infrastructure Corporation Limited Conduct, Discipline and Appeal (CDA) Regulations :
28. PROCEDURE FOR IMPOSING PENALTIES:
1) No order imposing any of the penalties specified in items a, b and c of clause I of regulation 27 shall be passed except after
(a) the employee concerned is informed in writing of the proposal to take action against him and is given an opportunity to make any representation he may wish to make; and
(b) such representation, if any, is taken into consideration by the authority imposing penalty.
2) No employee shall be dismissed or removed or compulsorily retired or reduced to a lowere service or post or to lower time-scale or to a lower stage in the time scale by the authority subordinate to that by which he was appointed and no order imposing on an employee any of the penalties specified in 7 items „d‟ to „g‟ of Clause I of Regulation 27 supra shall be passed by the Disciplinary Authority (appointing Authority) hi9gher authority without charge or charge or charges being communicated to him in writing and without having been given a reasonable opportunity of denying himself against the action proposed to be taken against him.
3) The Disciplinary Authority empowered to impose any of the penalties in items (d) to (g) of Clause I of Regulation 27 may itself enquire into such of the charge as are not admitted; or if it considers necessary so to do, appoint an Enquiry Officer for the purpose.
29. Not withstanding anything contained in Regulation 28 above.
i) Where a penalty is imposed on an employee on the grounds of his conviction on a criminal charge; or
ii) Where the authority concerned is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the regulation, the disciplinary authority may consider circumstances of the cases and pass such orders thereon as it deems fit."
9. It is not disputed that no notice was given to the petitioner and no procedure is followed as contemplated under Regulation as contemplated under Regulation 28 of the above Regulations. In view of the said fact, the impugned order without following the procedure as required under Regulation No.28 and directly followed the Regulation.29 and given punishment to the petitioner, is bad and against the principles of natural justice. It clearly establishes that the respondent has issued the impugned proceedings without following the APIIC CDA Regulations and without following the due process of law.
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10. In view of the foregoing reasons and the catena of decisions of Hon‟ble Supreme Court, the order of terminating the services of the petitioner is not sustainable in law.
11. Accordingly, the Writ Petition is allowed setting aside the impugned proceedings No.2751/PW/APIIC/M(P)/07, dated 15.02.2011 issued by the respondent. As the petitioner is retired from the service in the year 2012, on attaining the age of Superannuation, the respondent authority is directed to pay all monetary benefits, allowances etc., available to him from the date of dismissal till the date of his superannuation, within a period of eight (08) weeks from the date of receipt of a copy of this order.
12. It would be open to the respondent authority, if it is so advised, to hold an inquiry against the petitioner by affording him a reasonable opportunity of hearing and thereafter pass any order as it may deem fit and proper in accordance with law. There shall be no order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 25--04-2022 Gvl 9 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.7440 of 2011 Date : 25.04.2022 10 Gvl