Telangana High Court
Smt.Vandana Srivastava vs Managing Director,Hmwssb,Hyd,And 3 on 23 September, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION (TR) NO.3507 OF 2017
ORDER
In this Writ Petition (TR), the petitioner is seeking a direction to call for the records relating to the proceedings of the 2nd respondent bearing No.2105/E3/2005/3114 dt.09.08.2007 and Memo No.2105/3/ 2005/3507 dt.02.08.2008 and to set aside the same by declaring the same as illegal, arbitrary and unconstitutional and to pass such other order or orders.
2. Brief facts leading to the filing of the present Writ Petition (TR) are that the petitioner was working as an Assistant (F&A) in O&M Division 2. She was deputed to work in e-Seva Centre at Malakpet as Operator during the period from September, 2001 till July 2002, as Manager at Vanasthalipuram e-Seva from August, 2002 to February, 2003 and again as Manager at Malakpet e-Seva from 10.02.2003. She was served with a charge sheet dt.09.12.2004 by the 4th respondent framing the following charge:
"They have sold non judicial stamp paper of higher denomination of Rs.100/- above on 3-11-2004 and 16-11-2004, even W.P. (TR) No.3507 of 2017 2 after the ban imposed by the Govt. and instructions given by the Head Office for which the Managers of the two centres are held responsible."
In response to the said charge sheet, the petitioner submitter her explanation on 09.12.2004 denying the charge and stating that after the ban imposed by the Government and the instructions given by the Head Office, she had not sold any stamp papers and that she had returned the stamp papers to the Assistant Section Officer Mr. P.Ashok Kumar who is her officer and In-charge of the stamps in e-Seva Centre, Malakpet, Hyderabad and had taken acknowledgement also on 30.10.2003. She further stated that Sri P.Ashok Kumar seems to have sold out certain stamp papers without the knowledge of the petitioner and the petitioner being subordinate, had made entries in the system and subsequently when the petitioner has made enquiries with Sri P.Ashok Kumar about the selling of stamp papers, he did not give any particulars as to whom he had sold the stamps and therefore, the charge against her is baseless and requested to drop the charge. It is submitted that without considering the explanation submitted by the petitioner in proper manner, the 4th respondent proposed for issuance of punishment of censure and has sent a letter dt.18.03.2005 to the 2nd respondent and the 2nd respondent has issued the proceedings No.2105/E3/2005 W.P. (TR) No.3507 of 2017 3 dt.19.09.2005 imposing punishment of censure under Rule 9(i) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991. Thereafter, the petitioner has been repatriated to her parent department on 11.05.2005.
3. It is submitted that aggrieved by the punishment of censure, the petitioner filed a representation to the 2nd respondent requesting for revocation of the said punishment as the charge itself is baseless, but instead of dropping the said order of punishment of censure, the 2nd respondent has issued proceedings No.9595/E3/2004 dt.05.01.2006 reopening the case solely based on the alleged advice given by the Vigilance Commissioner and decided to re-enquire into the matter under Rule 40 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 and appointed an enquiry officer. It is submitted that the said proceedings are illegal and void being without jurisdiction because the 2nd respondent is not the revisional authority to invoke Rule 40 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 and no regular enquiry as contemplated under Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 has been conducted and no witnesses including the petitioner were examined and on the basis of such laconic enquiry, the enquiry officer submitted his W.P. (TR) No.3507 of 2017 4 report on 08.02.2007 with a conclusion that charges cannot be dropped without any cogent reasons and recommended for punishment of cutting one increment without cumulative effect. It is submitted that the 2nd respondent, thereafter, has issued a memo dt.08.06.2007 proposing imposition of punishment of withholding of two increments of pay with cumulative effect stating that it is found that the petitioner during her incumbency as Manager, Malakpet e-Seva has sold non-judicial stamp papers even after the ban imposed by the Government. According to the petitioner, it is factually incorrect and the petitioner therefore submitted her detailed explanation on 06.07.2007 but however, without considering the same in proper manner, the 2nd respondent has issued the impugned proceedings dt.09.08.2007 imposing the punishment of withholding of two increments of pay with cumulative effect. Challenging the same, the petitioner preferred an appeal before the 1st respondent, but the 2nd respondent has issued the impugned memo dt.02.08.2008 rejecting the appeal filed by the petitioner. According to the petitioner, the 2nd respondent is not authorized to pass the impugned order dt.02.08.2008 when the appeal was preferred to the 1st respondent. The petitioner therefore prayed that the order of punishment and the order of rejection of appeal be set aside.
W.P. (TR) No.3507 of 20175
4. Learned counsel for the petitioner, while reiterating the above submissions, further submitted that there was some delay in filing of the O.A. before the A.P. Administrative Tribunal (APAT), which is neither willful nor wanton, but was due to pendency of the appeal before the 1st respondent and the petitioner was expecting orders from the 1st respondent. He therefore prayed for setting aside of the impugned orders. He further submitted that there was no charge memo issued to the petitioner for the imposition of major penalty and no enquiry was conducted under Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991. He placed reliance upon the decision of this Court dt.15.11.2022 in W.P.No.3513 of 2020 (P.Vasuki Vs. the State of Telangana rep. by its Secretary to Government and others) for the proposition that the advice of the Vigilance Commissioner is not binding on the disciplinary authority and that the disciplinary authority has to apply its own mind independently to arrive at an independent finding.
5. A counter affidavit has been filed on behalf of respondents 1 and 2 denying the allegations made in the O.A. and it is submitted that the O.A. is liable to be dismissed on the ground of laches since the petitioner has filed the O.A. after 7 years of rejecting the appeal in the W.P. (TR) No.3507 of 2017 6 year 2008. It is further stated that after considering the explanation submitted by the petitioner to the charge memo, the 4th respondent had recommended imposition of punishment on the petitioner and accordingly, the proceedings dt.19.09.2005 were issued imposing punishment of censure under Rule 9(i) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991. It is stated that aggrieved by the punishment of censure, the petitioner has filed an appeal before the 2nd respondent, who in fact was the disciplinary authority who imposed punishment and therefore, the appeal was not maintainable. It is submitted that as there were serious allegations against the Government employees, the A.P. Vigilance Commissioner had addressed a letter dt.08.12.2005 to the Managing Director of the respondent Board along with other Heads of Departments to reopen the cases and initiate major penalty proceedings against the employees shown in the said letter in accordance with Rule 9 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 duly following Rule 20 of the said Rules and that the petitioner is one amongst such employees. It is submitted that in these circumstances, a decision was taken to conduct re-enquiry by appointing an enquiry officer and accordingly orders dt.05.01.2006 were issued appointing the W.P. (TR) No.3507 of 2017 7 enquiry officer and therefore, there is no illegality or irregularity in issuing the said orders. It is submitted that the enquiry officer has submitted the report after conducting the enquiry and thereafter, the punishment of withholding of two increments of pay with cumulative effect was imposed. It is stated that the appeal of the petitioner was rejected by the 1st respondent by order dt.02.08.2008 and it is after nearly 7 years thereafter that the O.A. has been filed and therefore, it is liable to be dismissed at the threshold. As regards the merits of the issue, it is submitted that the petitioner herself has made entries of sale of stamp paper in the register and therefore, she cannot now turn around to say that she has no role or knowledge of selling the stamp papers of higher denomination after imposition of ban by the Government.
6. Learned Standing Counsel for the respondents, relying upon the above averments in the counter affidavit, has referred to the letter of the A.P. Vigilance Commissioner which is annexed to the counter affidavit, wherein the name of the petitioner is mentioned for re-enquiry.
7. Having regard to the rival contentions and the material on record, this Court finds that the foremost point to be considered is the maintainability of this Writ Petition (TR) which was filed after the lapse of 7 years from the date of the impugned orders. This Court finds that W.P. (TR) No.3507 of 2017 8 the petitioner ought to have challenged the impugned orders within a reasonable period and seven years cannot be said to be reasonable. However, this Court is also convinced with the contentions of the writ petitioner that the petitioner was waiting for the decision of the 1st respondent on the appeal filed by her since the 2nd respondent was the Disciplinary Authority who passed the impugned order of punishment and could not have rejected the appeal as Appellate Authority and when no orders were passed by the 1st respondent, the present Writ Petition (TR) (earlier O.A.) was filed. Therefore, this Court is not inclined to accept the preliminary objections of delay in filing of this Writ Petition (TR).
8. As regards the merits of this case, this Court finds that the petitioner was issued with a charge sheet dt.09.12.2004 on the basis of the preliminary enquiry report dt.04.12.2004, to the effect that the petitioner and another person have sold stamp papers of higher denomination of Rs.100/- and above on 03.11.2004 and 16.11.2004 after the ban has been imposed on the sale of higher denomination vide Memo No.GS02/24/94/02 dt.20.01.2004. After considering the explanation submitted by the petitioner on 09.12.2004, the 2nd respondent had imposed the punishment of censure under Rule 9(i) of W.P. (TR) No.3507 of 2017 9 the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, i.e., a minor penalty. The petitioner has preferred an appeal to the 2nd respondent against the punishment of censure and thereafter, before a decision was taken on the said appeal, the Vigilance Commissioner, vide letter No.18389/VC.F2/05-2, dt.18.12.2005, had addressed a letter to Heads of all Departments including the 1st respondent herein to initiate action against the persons mentioned therein and had advised the concerned Departments to reopen the cases immediately and initiate major penalty proceedings against them in accordance with Rule 9 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 duly following Rule 20 of the said Rules. Thereafter, invoking the provisions of Rule 40 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, the 2nd respondent has appointed one Sri B. Satyanandam, General Manager, Finance, HMWSSB as the enquiry officer to enquire into the charges framed against the petitioner herein and to submit a report. The ground raised by the petitioner herein is that the 2nd respondent did not have powers under Rule 40 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 to order re- enquiry into the matter as he was neither the appellate authority nor the revisional authority. It is submitted that the 2nd respondent being the W.P. (TR) No.3507 of 2017 10 disciplinary authority could not have invoked the provisions of Rule 40 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 and it is the 1st respondent who could have invoked the provisions of Rule 40. This Court finds that the proceedings dt.05.01.2005 have been passed by the 2nd respondent and it is not stated therein that orders are being passed on the instructions of the 1st respondent. Further, the reference is only to the letter of the Vigilance Commissioner for re- enquiry into the matter and there is no discussion about his satisfaction on the necessity to conduct re-enquiry. Therefore, there appears no independent application of mind by the Disciplinary Authority. Be that as it may, the respondents also have not followed the procedure laid down under Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991. From the enquiry report dt.08.02.2007, it is clear that neither the petitioner, i.e., the charged employee, nor any witnesses have been examined and no documents have been furnished to the petitioner along with the charge sheet, for coming to the conclusion that the charge is proved against the petitioner. Further, the enquiry officer appears to have suggested the punishment of cutting one increment without cumulative effect. The role of the enquiry officer is only to enquire into the matter and give a finding on the charges leveled W.P. (TR) No.3507 of 2017 11 against the petitioner on the basis of the evidence recorded by him but cannot suggest the punishment to be awarded to the charged employee. Such a decision is in the specific domain of the Disciplinary Authority alone. The 2nd respondent seems to have considered the enquiry report and has suggested the punishment of withholding of two increments of pay with cumulative effect vide the show-cause notice dt.08.06.2007 and after considering the explanation of the petitioner, has imposed the punishment of withholding of two increments of pay with cumulative effect. Since there was no proper enquiry conducted under Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, the punishment on the basis of such an enquiry report cannot be sustained.
9. A Coordinate Bench of this Court in W.P.No.3513 of 2020 dt.15.11.2022 in the case of P.Vasuki Vs. The State of Telangana rep. by its Secretary to Government and others, in similar matter, has taken into consideration the judgment of the Delhi High Court in the case of S.P.Agarwal Vs. Municipal Corporation, Delhi (1997(1) SLR
485), wherein it was held that the advice of the CVC can only be recommendatory but cannot be binding on the disciplinary authority and that the disciplinary authority has to apply its independent mind for W.P. (TR) No.3507 of 2017 12 initiating any action against the charged officer. As it is evident that the disciplinary authority has not applied its mind but has followed the advice of the Vigilance Commissioner for initiating re-enquiry into the charges against the petitioner, this Court is of the opinion that the said action of the 2nd respondent is not sustainable.
10. In view of the above, the impugned punishment order dt.09.08.2007 and the order dt.02.08.2008 rejecting the appeal are set aside. Consequently, the order of punishment of censure dt.19.09.2005 holds good.
11. The Writ Petition (TR) is accordingly partly allowed. No order as to costs.
12. Pending miscellaneous petitions, if any, in this Writ Petition (TR) shall also stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 23.09.2024 Svv