Telangana High Court
P. Vasuki vs The State Of Telangana And 2 Others on 15 November, 2022
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 3513 of 2020
Between:
P.Vasuki
... Petitioner
And
The State of Telangana,
Rep. by its Secretary to Government and others
... Respondents
JUDGMENT PRONOUNCED ON: 15.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
WP_3513_2020
2 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 3513 of 2020
% 15.11.2022
Between:
# P.Vasuki
..... Petitioner
and
$ The State of Telangana,
Rep. by its Secretary to Government and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri V.Ravichandran
^Counsel for the Respondents: G.P. for Services II
? Cases Referred:
WP_3513_2020
3 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 3513 of 2020
ORDER:
Heard the Learned Counsel for the Petitioner and the learned Government Pleader for Services II.
2. This writ petition is filed to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in imposing the punishment of reduction of Rank i.e. to lower time scale of Junior Assistant vide impugned proceedings No.G/79/2014, dated 11.02.2020 on the dictates of the higher authority viz. the 1st respondent and the Vigilance Commission and that too, after concluding that a punishment of censure would be appropriate and that the petitioner was instrumental in informing the lapses on part of the regular sub-registrar to the higher authorities, as being arbitrary, illegal, erroneous, irrational, grossly disproportionate and in violation of Article 14 of the Constitution of India and further be pleased to declare that the petitioner is entitled to be continued as Senior Assistant and be considered and promoted as Sub-registrar Grade II duly treating the period of WP_3513_2020 4 SN,J suspension as on duty for all purposes with benefits incidental and ancillary thereto in the interest of justice.
3. The case of the petitioner, in brief, is as follows:
a) The petitioner was initially appointed as Junior Assistant in the Registration Department in the year 2010 and later promoted as Senior Assistant in the year 2012. While working as such, the petitioner was placed under suspension vide proceedings dated 06.05.2014 of the 3rd respondent on the alleged ground that while functioning as Incharge sub-
Registrar Grade II on certain occasions, he was responsible for certain lapses.
b) The petitioner was reinstated into service vide proceedings dated 05.11.2014. The petitioner submitted denial to the 3rd respondent that the enquiry officer has overlooked many crucial facts and also erred in finding that the petitioner did not bring to the notice of the higher authorities and that the enquiry officer omitted to consider the explanation to the charges and finally requested the 3rd respondent to drop further action.
WP_3513_2020 5 SN,J
c) The 1st respondent has directed the 2nd and 3rd respondents to impose the penalty of reduction of rank vide memo No.12850/Vig.I(2)/2019-1, dated 08.01.2020.
d) The respondents took almost five years to conclude the proceedings and just before effecting promotion to the posts of sub-Registrars Grade II, punishment of reversion is imposed. The allegations pertain to 2013-14 and it took nearly seven years to conclude the same and the petitioner is not responsible for the delay. Prolonged disciplinary proceedings have caused prejudice to the petitioner's claim for promotion to the next higher post. The same is also in violation of the time limit prescribed for completion of the enquiries in Rule 20 TSCS (CC&A) Rules, 1991 and G.O.Ms.No.679, dated 01.11.2008. Therefore, this writ petition is filed.
4. The 3rd respondent filed counter affidavit on his behalf and also on behalf of the other respondents. The case of the respondents, in brief, is as follows:
a) The correspondence between the disciplinary authority and the Government is only an administrative procedure, WP_3513_2020 6 SN,J which do not have any impact in taking a decision by the disciplinary authority for imposing punishment. Since the instant case relates to the financial proprietary of a responsible public servant, adequate major punishment is appropriate.
b) In the case of misappropriation, as per G.O.Ms.No.25 GAD, dated 03.02.2004, dismissal from the service is the general punishment. As the loss of revenue was recovered, the disciplinary authority awarded lesser punishment i.e. reduction in lower rank i.e. to a lower time scale.
c) The disciplinary authority acted upon the directions of the Government is not correct. The enquiry officer followed the relevant rule while conducting enquiry and submitted report. Therefore, the writ petition is liable to be dismissed.
5. This Court vide order dt. 19.02.2020 in I.A.No.1/2020 in W.P.No.3513/2020 was pleased to pass orders as follows :
The order of punishment of reduction to lower rank i.e., to lower time scale of Junior Assistant, is challenged in this writ petition.
WP_3513_2020 7 SN,J Learned counsel for the petitioner submits that the punishment imposed is ex-facie illegal. Firstly, though the Disciplinary Authority was not inclined to impose punishment, for the reasons recorded by him in the correspondence between him and the Government, the Government insisted the Disciplinary Authority impose punishment. Initially, the Disciplinary Authority resisted and again asked the Government to permit him not to impose punishment. But as the Government insisted to impose punishment of reduction, the impugned punishment is imposed. Therefore, the same is ex- facie illegal and secondly the punishment is vague. There cannot be reduction in rank and time scale and such reduction cannot be without any specified time frame.
On perusal of record, I see merit in the contentions urged by learned counsel for the petitioner on the first aspect and in view of Rule 9-v (b) and vii (a) (b) of The Telangana Civil Services (CCA) Rules, 1991, the punishment imposed is not sustainable. Balance of convenience is in favour of the petitioner.
Hence, interim suspension as prayed for.
6. The main contentions put forth by the Counsel for the Petitioner :
a) That the impugned order dt. 11.02.2020 issued by the 3rd Respondent is as per the dictates of the 1st Respondent and the Vigilance Commission.
b) That no rule is envisaged for the Vigilance Commission under the provisions of TSCS (CC & A) Rules, 1991 since opinion if any tendered by the Vigilance Commission is advisory in nature.
c) That the 3rd Respondent did not apply its mind independently and did not take an independent decision and WP_3513_2020 8 SN,J followed the dictates of the 1st Respondent which is a clear example of non-application of mind.
d) That the 1st Respondent under Vigilance Commission have discharged the role of disciplinary authority contrary to statutory mandate of Rule 21.
e) That punishment imposed by the 3rd Respondent is grossly disproportionate to the allegations leveled against the Petitioner even if held to be proved.
f) That the order impugned is an unreasoned order.
g) That the 3rd Respondent having concluded thrice in his report that the Petitioner is not guilty of any misappropriation ought not have passed the impugned order.
h) That the 3rd Respondent having recommended for minor penalty however imposed a major penalty contrary to its own recommendation.
i) That no time limit was prescribed for completion of enquiry in the present case and the same is violative of Rule 20 TSCS (CC & A) Rules, 1991 and G.O.Ms.No.679, dt. 01.11.2008.
WP_3513_2020 9 SN,J
j) That the 3rd Respondent after concluding that a punishment of censure would be appropriate having very clearly observed that the Petitioner was instrumental in informing the lapses to the higher authorities, however, as per the dictates of the 1st Respondent and the Vigilance Commission passed the order impugned dt.11.02.2020 in Proceedings No.G/79/2014.
k) Counsel for the Petitioner places reliance on the judgment of Division Bench of this Court dt. 18.08.2001 passed in WP No.15449/1999 reported in 2004 (7) ALT 289 in Mubashir Hussain vs. Commissioner of Central Excise-III, Hyderabad & Others and contends that the Petitioner is entitled for the relief prayed for.
7. The main contentions put-forth by the learned counsel for the Respondents No.3 are as follows:
a) That exchange of information and advice even internal device in administration and ultimate decision is taken by the Disciplinary Authority independently considering all the factors without any prejudice.
WP_3513_2020 10 SN,J
b) In reply to Para 11 of the Petitioner's affidavit the counter affidavit reads as under :
It is to submit that the decision of imposing punishment is the independent act of the Disciplinary Authority. Mere correspondence between the Disciplinary Authority and Government on certain issues does not mean that the Disciplinary Authority is dictated by the others. The Disciplinary Authority may correspond with the appropriate authorities and may elicit their opinion or seek their precious advice which does not mean that he is influenced by others. It is mandatory for the Disciplinary Authority to submit the entire disciplinary proceedings in case of misappropriation as per the G.O.Ms.No.25 GAD (Ser.C) Department dt. 03.02.2004 before imposing punishment.
Also it is the Disciplinary Authority's decision to impose a major penalty of "Reduction to lower scale". No where, in the proceedings of the Disciplinary Authority it is mentioned that either he has acted on the advice or dictated by somebody else. The Petitioner's version is imaginary and whimsical. Since the instant case relates to the financial proprietary of a responsible public servant, adequate major punishment is appropriate.
c) The learned counsel for the Respondent contends that the Writ Petition has to be dismissed since the Disciplinary Authority on application of his independent mind imposed the punishment as per rules.
PERUSED THE RECORD :
8. A bare perusal of the contents of the letter of the 3rd Respondent vide letter No.G/79/2014, dated 26.07.2017 addressed to the Principal Secretary to WP_3513_2020
11 SN,J Government, Revenue (Vigilance VI) Department, Telangana Secretariat, Hyderabad, clearly indicates that the 3rd Respondent after detailed reasoning opined and concluded that the punishment proposed against the Petitioner was harsh. The concluding paragraphs of the said letter dt. 26.07.2017 read as under :
"He has not caused any loss of revenue or short remittance except that of Rs.85/- which obviously does not seem to be done with criminal intention or cheating or fraud, etc. His actions have proved that he was the cause of action for this enquiry and because of his reporting to the District Registrar about the irregularity of the Sub Registrar and the Bank Officials in furnishing scrolls daily, the fact of Ill-maintenance of records came into light. He was not the Regular Sub- Registrar and acted as the In charge Sub Registrar only in the absence of Regular Sub Registrar or during his sudden unauthorised long absence while reporting the fact to higher authority. The case of charged Officer-2 actually need not be referred to Vigilance Commission as it does not have a 'Vigilance angle' as directed in GAD U.O. Note No.235/SPLB/2001-1, dated 28.07.2001, but as his case is a part and parcel of the Inquiry and linked to Charged Officer I, it was submitted.
Therefore, the punishment proposed i.e. 'stoppage of increment for one year with cumulative effect under Sub-rule 6 of Rule 9 of APCS (CC&A) Rules, 1991 by my predecessor is harsh in my opinion. In view of the above procedural deviations/irregularities committed by Sri P.Vasuki, Sr. Asst. SRO Nizamabad rural presently working as Sr. Asst. RO, Nizamabad. But as this was already proposed, I request the kind authority to give suitable advise at the earliest convenience.
9. The 1st Respondent vide Memo No.2470/Vig.I(2)/2016-3, dt. 30.04.2019 referring to WP_3513_2020
12 SN,J the proposal of the 3rd Respondent to impose the punishment of 'censure' had instructed the 2nd Respondent to impose the punishment of reduction in rank as was proposed in the case of CO-1 Sri B.Praveen duly marking a copy to the 3rd Respondent herein.
10. A bare perusal of the concluding paragraphs of Letter No.G/79/2014, dated 31.05.2019 of the 3rd Respondent addressed to the 1st Respondent is as under :
"Actual short remittance is only Rs.85/- as seen from the above there is an ambiguity, the fact is that short remittance i.e., only Rs.85/- but not Rs.42,425/- which was clearly mentioned by my predecessor this clearly shows that there is no mens rea or any other intention in non-remittance of Rs.85/- however, this amount of Rs.85/- was duly remitted subsequently.
Therefore in my opinion imposing such major punishment of reversion from Senior Assistant to Junior Assistant is not appropriate, the Charged Officer who has worked as Clerk-in-charge and who also not received Sbu-Registrars salary and was asked to work as in charge Sub-Registrar on administrative ground as and when regular proceeds on casual leave, or otherwise.
Therefore the issue may kindly be re-examined and pass further orders in this regard".
11. It is pertinent to note here that it is the same officer who deposed the counter affidavit in the present WP_3513_2020 13 SN,J writ petition who is also the officer who authored the letter No.G/79/2014, dt. 31.05.2019.
12. A bare perusal of the contents of the Memo No.12850/Vig.I(2) 2019-1, dt. 08.01.2020 of 1st Respondent addressed to 2nd Respondent reads as under :
"The attention of the Commissioner & Inspector General, Registration & Stamps, Telangana State, Hyderabad is invited to the references cited and he is requested to impose the penalty of "Reduction in Lower Rank, i.e., to a lower time scale" against Sri P. Vasuki, Sr. Asst. (CO-2) on par with the penalty imposed against "Charged Officer-1 Sri B. Praveen, Sub Registrar, by following due procedure and intimate the action taken report to the Government, immediately as requested in the reference 1st cited", duly marking a copy to the 3rd Respondent."
DISCUSSION AND CONCLUSION
13. A bare perusal of all the above referred documents clearly indicates that the 3rd Respondent personally opined that the punishment proposed against the Petitioner was a harsh punishment and the same was disproportionate to the allegations leveled against the Petitioner even if it were found to be true, WP_3513_2020 14 SN,J but however, was constrained to impose the punishment as dictated by the Respondents No.1 & 2 thereby failing in discharging the duty of a responsible Disciplinary Authority. The 3rd Respondent having concluded that the punishment of censure would be appropriate and that the Petitioner was instrumental in informing the lapses on part of the regular Sub- Registrar to higher authorities, however, influenced by the dictates of the 1st and 2nd Respondents was constrained to pass the order impugned.
14. RV SUSSEX Justices, Exparte Mc Carthy ((1924) 1 KB 256 (1923) ALL ER REP 233) In the United Kingdom back in 1923, Mc Carthy got involved in a road accident case resulting in his prosecution before a court of Magistrates for dangerous driving. The clerk to the justices was a member of the firm of solicitors acting in a civil claim arising out of the accident. The justices retired from the court for arriving at a verdict and the said clerk followed. The justices then convicted McCarthy. On learning of clerk's association with the WP_3513_2020 15 SN,J firm, McCarthy appealed for the quashing of his conviction.
15. Before the appellate court, Justices swore affidavits stating that they had reached their decision to convict McCarthy without consulting the clerk. The appeal was heard at the King's Bench division by Lord Chief Justice Hewart. In a landmark and far-reaching judgment, Lord Hewart CJ observed:
"It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
The question, therefore, is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done.
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way...
WP_3513_2020
16 SN,J In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed."
16. Hence the judicial concept "Not only must Justice be done, it must also be seen to be done" evolved. Ever since this concept has gained global popularity and acceptance as a judicial principle. In the present case this Court opines that the above judicial principle, Not only must Justice be done, it must also be seen to be done" has not been followed.
17. It has been held in the case of Rajinder Singh @ Manu and another v State of West Bengal reported in (2004) CrLJ 4023, thus, in para 19 as under:
"19. It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Confidence in the administration of justice is an essential element of good Government, and reasonable apprehension of failure of justice in the mind of the litigant public should, therefore, be taken into serious consideration. Courts should not fail to remember that it is their duty no less to preserve an outward appearance of impartiality than to maintain the internal freedom from business. Transfer in certain cases is made not WP_3513_2020 17 SN,J because the party approaching the Court will not have a fair and impartial trial but because the party has reasonable apprehension that it will not have such a trial.
18. Paras 12 to 15 of the Judgment reported in 2004 (7) ALT 289 in Mubashir Hussain vs. Commissioner of Central Excise-III, Hyderabad & Others dt. 18.08.2001 passed in WP No.15449/1999 relied upon by the Counsel for the Petitioner the Division Bench of Hon'ble Court observed as under :
Para 12. From the records, it appears that not only the proceedings were initiated at the instance of the CVC but, as noticed hereinbefore, despite the fact that the disciplinary authority had come to a conclusion to the effect that the petitioner should not be imposed with any punishment, the authority inflicted the aforesaid punishment only at the instance of the CVC. Such abdication of power by the disciplinary authority cannot be countenanced.
Para 13. In S.B.I. v. H.K. Dogra, 1995 (5) SLR 358, the Punjab and Haryana High Court held that the opinion of the CVC is purely advisory in nature and it cannot act as an appellate authority. Yet again in SP Agarwal v. Municipal Corporation Delhi, 1997(1) SLR 485 the Delhi High Court has clearly held that the advice of the CVC is not binding on the disciplinary authority and it has to apply its own mind independently and arrive at an independent finding appreciating the facts and evidence on record. Even non-consultation with the CVC would not Vitiate the disciplinary proceeding. (See State of S.P. v. Dr. Rahimuddin Ramal, (1997) 3 SCC 505). It may be one thing to say that a disciplinary authority takes into consideration the advice of CVC while issuing an order of punishment on the basis of the materials placed before it and upon application of its WP_3513_2020
18 SN,J won mind, but, it is another thing to say that it abdicates its statutory power to the CVC and pass an order of punishment although in its opinion no punishment should Imposed on the delinquent officer. The instant case is a glaring exam where the disciplinary authority had abdicated its power in favour of CVC and acted pursuant to or in furtherance of the advice of the CVC Para 14. In the aforesaid situation, the disciplinary authority must be held have committed a Jurisdictional error in passing the order, (Anisminic Ltd. v. Foreign Compensation Commission, 1969 (2) AC 147). The Impugned order, therefore, cannot be sustained. Para 15. For the reasons aforesaid, the Writ Petition is allowed and impugned order of the Tribunal as also the order of the disciplinary authority are set aside. There, shall be no order as to costs.
19. Taking into consideration all the above referred circumstances and the judicial principle which is of fundamental importance that Justice should not only be done but should manifestly and undoubtedly be seen to be done and the observations of the Court in the case of Rajinder Singh @ Manu v State of West Bengal and the law laid down by the Division Bench of this Court in W.P.No.15449/1999, dated 18.08.2001, (referred to and extracted above) this Court opines that the 3rd Respondent herein has committed a jurisdictional error in passing the impugned order of punishment of deduction in rank and time scale. The impugned order WP_3513_2020 19 SN,J imposed against the Petitioner dated 11.02.2020 vide Proc. No.G/79/2014, is not only vague, unwarranted, the same is ex-facie illegal and without any specified time frame and therefore the same cannot be sustained.
20. Accordingly the writ petition is allowed setting aside the impugned proceedings No.G/79/2014, dated 11.02.2020 and the Respondents are directed to forthwith continue the services of the Petitioner as Senior Assistant duly treating the period of suspension as on duty for all purposes with benefits incidental and ancillary thereto. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_________________ SUREPALLI NANDA, J Date: 15.11.2022 Note : L.R. copy to be marked b/o kvrm