Andhra Pradesh High Court - Amravati
Ms.Reddy Educational Society 2 Others vs Govt Of Ap., Secondary Education, ... on 4 February, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
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THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
WRIT PETITION No.16564 of 2014
ORDER:(per the Hon'ble Sri Justice A.V. Sesha Sai)
1. Order of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter called as 'the Tribunal'), dated 25.10.2013 passed in O.A.No.7133 of 2011, confirming the order of punishment passed by the State Government, vide G.O.Rt.No.725, Health, Medical and Family Welfare (VC.II.2) Department, dated 17.03.2011, is under challenge in the present Writ Petition.
2. Preceded by a preliminary enquiry undertaken by the Department, the State Government, by way of G.O.Rt.No.931, Health, Medical and Family Welfare (VC.II-2) Department, dated 01.11.2004, issued a charge memo, framing the following two charges against the petitioner herein.
Charge No.1: "that Sri P.Vasantharao, Opthalmic Assistant, PHC, Kanithi, Srikakulam District who is responsible Opthalmic Assistant has shown gross negligence in discharging his duties during the eye camp and cataract operations conducted by Dr.Chandra Mouli, Civil Surgeon (Ophthalmology) at T.D. Valasa Village and made himself responsible for the loss of vision of the patients. Charge No.2:- that Sri P.Vasantharao, PMOA, PHC, Kanithi, Srikakulam District has failed to inform regarding the loss of vision of the patients to the higher authorities till the news item published in Newspapers"
Thus Sri P.Vasantharao, PMOA, PHC, Kanithi, Srikakulam District has made himself responsible for the loss 2 of vision of the patients and not informing the fact to his higher authorities till the same is published in Newspapers and as such he exhibited lack of devotion to duty and conduct of unbecoming of a public servant and thereby controversed Rule 3 of APCS (Conduct) Rules, 1964.
In response to the said charge memo and the charges contained therein, the petitioner herein submitted an explanation on 24.02.2005. Thereafter, a regular enquiry officer was appointed by the disciplinary authority and the enquiry officer, vide letter in Rc.No.SDEH/Peshi/1476/2008, dated 30.04.2008, submitted a report, holding the petitioner not guilty of the charges levelled against him. Subsequently, disagreeing with the findings of the enquiry officer, the disciplinary authority, vide Memo No.25287/VC-
II.2/2003-27, dated 30.07.2009, issued a show cause notice and the disciplinary authority referred the matter to the Andhra Pradesh Public Service Commission (APPSC) for the purpose of necessary concurrence as per Proviso to Rule 21(5) of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereinafter called as 'the CCA Rules'). In response to the same, the Secretary, APPSC, vide letter No.737/RT-I/3/10, dated 18.06.2010, wrote back to the disciplinary authority in the following manner.
"On examination of the records furnished, it is observed that the Enquiry Officer has held that charges are not proved against the charged officers. Actually enquiry was conducted for the charges of negligence of duties. But the Government have deviated from the findings of Enquiry Officer citing the reason of compensation paid to the patients and decided to recover the amount paid as compensation from the charged 3 officers and impose a penalty of 25% cut in pension permanently on Dr.Chandra Mouli, CS(Retd.) and withholding of two increments with cumulative effect on Sri P.Vasantharao, Opthalmic Assistant. In this regard Commission is of the view that Government have not mentioned the disagreement factors for the findings in the enquiry and instead cited the reason of need for paying compensation to the patients in the show cause notices issued to the charged officers and the delinquent officers also raised their objections in this regard in their explanations.
I am, therefore, to request that the revised show cause notices with factors of disagreement in detail be issued to Accused Officers and obtain their explanations to avoid litigation and forward the same to the Commission with remarks of the Government if any to further process the case"
Subsequently, the State Government issued Memo No.25287/VC.II.2/2003-27, dated 02.08.2010, calling upon the petitioner to show cause as to why suitable major penalty should not be imposed. The petitioner submitted his explanation on 03.09.2010. Eventually, the State Government, vide G.O.Rt.No.725 Health, Medical and Family Welfare (VC.II.2) Department, dated 17.03.2011, imposed, on the petitioner, the penalty of withholding of two annual grade increments with cumulative effect.
3. Challenging the validity and legal sustainability of the said order of punishment passed by the State Government, the petitioner herein approached the Tribunal, by way of filing Original Application No.7133 of 2011. The Tribunal, by way of order under challenge in the Writ Petition, dismissed the Original Application. Hence, the present Writ Petition.
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4. It is contended by Sri S.A.Razack, learned counsel for petitioner that the mode and manner in which the respondent authorities proceeded with the matter is patently contrary to the mandatory requirements of law, as provided under Rule 21 of the CCA Rules. It is also his submission, in elaboration, that even after the clarification given by the APPSC, vide letter, dated.18.06.2010, the disciplinary authority did not record any reasons, expressing disagreement with the enquiry officer's report. It is also his submission that the authorities failed to adhere to the mandatory requirement as provided under Proviso to Rule 21(5) of the CCA Rules.
5. On the contrary, it is vehemently contended by Sri.K.Bheemarao, learned Government Pleader for Services-I that there is absolutely no jurisdictional error, nor there exists any infirmity, in the impugned order, as such, neither the order passed by the Tribunal nor the order of punishment, is amenable for any judicial review, under Article 226 of the Constitution of India. It is also his submission that only after issuing a show cause notice, as mandated under Rule 21 of the CCA Rules, on 02.08.2010, and after considering the explanation offered by the petitioner, the State Government imposed the punishment, vide G.O.Rt.No.725, Health, Medical and Family Welfare (VC.II.2) Department, dated 17.03.2011, as such, the impugned order of punishment, as confirmed by the Tribunal, cannot be faulted.
6. In the above background, now the issue that emerges for consideration of this Court in the present Writ Petition is : 5
"Whether the order passed by the Tribunal, confirming the order of punishment passed by State Government,is in accordance with the provisions of the CCA Rules and whether the same warrants any interference of this Court under Article 226 of the Constitution of India"
7. The information available before this Court in unequivocal terms discloses that the enquiry officer appointed by the disciplinary authority, after undertaking regular enquiry, submitted his report on 30.04.2008, categorically holding that the petitioner herein was not guilty of the charges levelled against him. In view of the disagreement by the disciplinary authority with the enquiry officer's report so submitted, the provision of law which steps in for necessary adjudication of the matter is Rule 21 of the CCA Rules.
8. Rule 21 of the CCA Rules reads as under:
21. Action on the inquiry report: - (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favorable or not to the Government servant.
(3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub-rules (4) and (5) below. 6 (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to
(v) of Rule 9 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 22, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(5) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to
(x) of Rule 9 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.]
9. It is very much evident from the information available that when a show cause notice was issued by the disciplinary authority on 30.07.2009, while disagreeing with the findings of the enquiry officer, and when the issue was referred to the APPSC, the Secretary of the Andhra Pradesh Public Service Commission, vide letter, dated 18.06.2010, opined that the show cause notice was not in accordance with Rule 21 of the CCA Rules and by way of the said order, dated 18.06.2010, a request was made to issue a fresh show cause notice with reasons of disagreement in detail, for serving the same on the delinquent, to obtain explanation from the delinquent 7 and to forward the same to the Commission with remarks of the Government for taking further action in the matter.
10. A perusal of the order impugned before the Tribunal shows that pursuant to the said opinion expressed by the APPSC vide letter dated 18.06.2010, another show cause notice was issued by the Department on 02.08.2010. It is also required to be noted that pointing out the statutory infirmities and while requesting to drop further action in the matter, the petitioner herein submitted his explanation on 03.09.2010, and thereafter, the Government passed an order of punishment on 17.03.2011
11. In this context, it may be appropriate to refer to the Proviso to Rule 21(5) of the CCA Rules as mentioned supra. It is very much clear from a reading of the said Proviso that before taking further action in the matter, pursuant to the show cause of disagreement and after submission of the necessary explanation by the delinquent, the matter should be referred to the APPSC for advice and the said advice shall be taken into consideration before making an order imposing penalty on the Government servant. Except referring to the earlier show cause notice, dated 30.07.2009, and the opinion expressed by the Secretary, APPSC on 18.06.2010, the impugned order of punishment does not refer to any sort of information as to the correspondence with the Commission or consultation as per the above said Proviso. In the considered opinion of this Court, the said aspect is fatal to the case of the Department and in the absence of such consultation, the further action, pursuant to the letter, dated 18.06.2010, cannot be sustained in the eye of law. 8
12. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order, dated 25.10.2013 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.7133 of 2011 and consequently the order passed by the State Government, vide G.O.Rt.No.725, Health, Medical and Family Welfare (VC.II.2) Department, dated 17.03.2011 is also set aside. However, it is open for the respondent authorities to take further steps, if they are so advised, pursuant to the letter of the APPSC, dated 18.06.2010, and to finalize the same strictly in accordance with law.
As a sequel, miscellaneous petitions pending, if any in the Writ Petition, shall stand closed.
__________________ A.V.SESHA SAI, J _________________________ M.VENKATA RAMANA, J 04.02.2020 MP 9 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** WRIT PETITION No.16564 of 2014 Between:
S.Vasantharao ---Petitioner
And
The Government of Andhra Pradesh and three others
----Respondents DATE OF ORDER PRONOUNCED : 04.02.2020 SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
1. Whether Reporters of Local Newspapers may be allowed to see the order? Yes/No
2. Whether the copy of order may be marked to Law Reporters/Journals? Yes
3. Whether His Lordship wish to see the fair copy of the order? Yes/No ______________________________ A.V.SESHA SAI, J.10
* THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE M.VENKATA RAMANA +WRIT PETITION No.16564 OF 2014 % 04.02.2020 # Between:
S.Vasantharaio ---Petitioner
And
The Government of Andhra Pradesh and three others
----Respondents ! Counsel for the Petitioner : Sri S.A. Razack ^ Counsel for the Respondent : GP for Services-I < Gist:
> Head Note:
? Cases referred:
This court made the following :