1

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

WRIT PETITION No.31599 of 2012

Between:-

P.Ashok Kumar, S/o Prasad Rao,

Aged 37 years, Occ: Junior Assistant

(under disciplinary proceedings)

Bhimavaram Municipality

R/o D.No.7-7-51/1, Narasaiah Agraharam,

Near Anjaneya Swamy Temple,

Kumandavalli Road,

Bhimavaram,

West Godavari District.

… Petitioner

Versus

The Regional Director cum Appellate

Commissioner of Municipal Administration,

Rajahmundry, East Godavari District and 5 others

… Respondents

****

DATE OF JUDGMENT PRONOUNCED : 06.10.2023

2

AVSS,J & TMR,J

W.P.No.31599 of 2012

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

&

THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

1. Whether Reporters of Local Newspapers

may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the Judgment? Yes/No

_______________________

JUSTICE A V SESHA SAI

_____________________________

JUSTICE T.MALLIKARJUNA RAO

3

AVSS,J & TMR,J

W.P.No.31599 of 2012

* THE HON’BLE SRI JUSTICE A.V.SESHA SAI

&

THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

+ WRIT PETITION No.31599 of 2012

% 06.10.2023

# Between:

P.Ashok Kumar, S/o Prasad Rao,

Aged 37 years, Occ: Junior Assistant

(under disciplinary proceedings)

Bhimavaram Municipality

R/o D.No.7-7-51/1, Narasaiah Agraharam,

Near Anjaneya Swamy Temple,

Kumandavalli Road,

Bhimavaram,

West Godavari District.

… Petitioner

Versus

The Regional Director cum Appellate

Commissioner of Municipal Administration,

Rajahmundry, East Godavari District and 5 others

… Respondents

! Counsel for the Petitioner : Sri P.V.Ramana

^ Counsel for the Respondents : Learned Government

Pleader for Services-IV

Learned Standing Counsel

for the Municipality

(Respondent.No4)

< Gist:

> Head Note:?

4

AVSS,J & TMR,J

W.P.No.31599 of 2012

Cases referred:

1) (2009) 2 Supreme Court Cases 570

2) (2010) 13 Supreme Court Cases 427

3) (2005) 6 Supreme Court Cases 636

4) 2022 SCC Online SC 341

5) 2022 SCC Online SC 1282

5

AVSS,J & TMR,J

W.P.No.31599 of 2012

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

&

THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

WRIT PETITION No.31599 of 2012

ORDER: ( per Hon’ble A.V.Sesha Sai,J )

This Writ Petition, filed under Article 226 of the

Constitution of India, calls in question the order, dated 13.02.2012,

passed by the Andhra Pradesh Administrative Tribunal [herein after

referred as the ‘Tribunal’] in O.A.No.5246 of 2011; the order in

Review in M.A.No.905 of 2012 in O.A.No.5246 of 2011, dated

07.09.2012, and the dismissal order, dated 06.05.2011, passed by the

Disciplinary Authority i.e., the Regional Director-cum-Appellate

Commissioner of Municipal Administration, Rajahmundry, East

Godavari District, dismissing the petitioner from Service.

Facts in brief :-

2. The petitioner was a Junior Assistant and, while he was

working as such, the 1

st

respondent/Regional Director-cum-Appellate

Commissioner of Municipal Administration, Rajahmundry, East

Godavari District, issued a Charge Memo, dated 23.05.2005, framing

6

AVSS,J & TMR,J

W.P.No.31599 of 2012

the following charges :

Article – 1: that the said Sri P.Ashok Kumar, Junior

Assistant (under suspension) Pithapuram Municipality, has

harassed Kum.A.Kanaka Durga, Watcher (working as

Dispatch Clerk on working arrangement), Pithapuram

Municipality, on 11.04.2005 at about 3.30 pm., and abused

her in filthy language with the assistance of some others and

at about 5.05 pm., on the same day manhandled her due to

which she had fell on the ground.

Article – II: that he has committed certain

irregularities in connection with sanction of NSDP tap

connections while he worked as Taps Clerk in Pithapuram

Municipality sustaining a loss of Rs.58,500/- to the municipal

funds.

Article – III: that he was demanding money from the

Self-Help Groups for sanction of revolving fund to them, that

he was not putting up the connected files and submitting the

same to the Executive Authority in time with an illegal view.

3. Thereafter, the Disciplinary Authority appointed an

Enquiry Officer, who submitted a report, holding that the Charge

No.2 stood proved and Charge Nos.1 & 3 could not be proved by the

Department. Thereafter, the Disciplinary Authority/Regional Director

of Municipal Administration, passed an order, vide Roc.No.506/2004-

7

AVSS,J & TMR,J

W.P.No.31599 of 2012

A3, dated 27.05.2009, inflicting on the petitioner the punishment of

dismissal from service. Questioning the said order of punishment of

dismissal from service, the petitioner herein filed O.A.No.7112 of

2009 before the Tribunal. The said Original Application came to be

allowed by the Tribunal, vide order, dated 20.11.2009. Subsequently,

the Disciplinary Authority issued another Charge Memo, dated

09.09.2010, framing the following (4) Articles of Charge :

CHARGE No.1 :

That the said Sri P.Ashok Kumar, Former Junior

Assistant, Pithapuram Municipality presently working in

Bhimavaram Municipality while functioning as Junior

Assistant has committed irregularities in sanctioning of NSDP

tap connections.

Basis of charge :

The Municipal Commissioner, Pithapuram, in his letter

Roc.No.2325/2000/C1, dated 20-07-2002, has submitted

that, Sri P.Ashok Kumar, Junior Assistant of Pithapuram

Municipality, who was suspended on 13.11.2000 on

irregularities in sanctioning individual tap connections under

NSDP, and he was reinstated into service from 12.03.2001

on pending enquiry, and also submit that, on verification of

the available sanctioned tap applications it was clearly

found that, the above irregularities have been committed by

the then Junior Assistant, namely Sri P.Ashok Kumar, Junior

Assistant, and the Municipal Commissioner, Pithapuram has

8

AVSS,J & TMR,J

W.P.No.31599 of 2012

requested the Regional Director-cum-Appellate Commissioner

of Municipal Administration, Rajahmundry, to take

necessary action, since the Regional Director-cum-Appellate

Commissioner of Municipal Administration, Rajahmundry is

the competent authority for further action in the matter.

CHARGE No.II

That he has committed irregularities in connection with

sanction of NSDP tap connections sustaining a loss of

Rs.31,500/- to the Municipal Funds.

Basis of charge :

The Municipal Commissioner, Pithapuram, in his letter

Roc.No.2325/2000/C1, dated 20-07-2002 & 20-08-

2004 has submitted that, on verification of the available

sanctioned tap applications files with reference to

Cheques and Taps registers, the following (2) types of

irregularities committed by Sri P.Ashok Kumar, the then

Junior Assistant, Pithapuram Municipality were found :

A) (12) Tap connections were sanctioned without

Payment donations through either BC/DD or

Municipal Challan. Rs.27,000-00

B) (11) Tap connections were sanctioned with

Noting others (who were actual donors) Rs.31,500-00

Rs.58,500-00

The Municipal Commissioner, Pithapuram, in his

letter Roc.No.2325/2000/C1, dated 03.10.2006 &

11.03.2010 has submitted that, all (24) connected files

9

AVSS,J & TMR,J

W.P.No.31599 of 2012

have been verified, and the following facts are noticed.

As per the initial report, dated 20.07.2002, an

amount of Rs.58,000/- has been arrived as financial

loss sanctioned to Municipal funds due to certain

irregularities committed by Sri P.Ashok Kumar, Junior

Assistant, (u/s) while sanctioning NSDP tap connections.

Out of those (15) were sanctioned in Non-slum areas and

balance were in slum areas

15 x 3,000/- = Rs.45,000-00

9 x 1,500/- = Rs.13,500-00

The Municipal Commissioner, Pithapuram has

submitted that, during the verification of connected

records it is noticed in Non-slum files (15 Nos. that the

then TPBO has submitted his remarks to the Municipal

Commissioner, and Chairperson for accepting the Non-

slum area as Slum as the house situated in area which

seems like slum and the then Municipal Commissioner,

and Chairperson, and Municipal Council, had approved

the remarks of the TPBO, and hence, contribution for

each tap connection was collected @ Rs.1500/- and

sanction orders were issued by the then Municipal

Commissioner, Pithapuram.

Therefore, for the Tap Connections at Rs.1,500-00 has

to be collected tap contribution including Non-slum areas

-4x1500 =Rs. 6,000-00

1) Loss sustained as per statement A

-12x1500 =Rs.18,000-00

10

AVSS,J & TMR,J

W.P.No.31599 of 2012

Sl.No.5,10,12 were adjusted to Municipal funds

Sl.No.23 of 98

th pages Sl.No.from 65 to 74 and

Sl.No.42 of 69

th page of Cheques register respectively

-3x1500 =Rs. 4,500-00

2) Loss sustained as per Statement B

-12x1500 =Rs.18,000-00

Total Loss =Rs.31,500-00

The Municipal Commissioner, Pithapuram has

further submitted that, out of (12) applications shown in

statement-A, the cheque numbers shown in note files (9

Nos.) are not tallying with the numbers in cheques

register, and as shown in statement-B, the cheques

numbers shown in note files (12 Nos.) are not tallying

with the number in cheques register. Hence, total

amount of Rs.31,500/- has been caused financial loss

to the Municipal funds (statements enclosed).

CHARGE No.III

That, the individual caused misappropriation for vested

interest, and remitted an amount of Rs.58,500/- which

establish that, the individual has misappropriated the

amount, and committed the financial irregularity.

Basis of Charge :

The Municipal Commissioner, Pithapuram, in his letter

Roc.No.2325/2000/C1, dated 11.03.2010 has submitted

11

AVSS,J & TMR,J

W.P.No.31599 of 2012

that, Sri P.Ashok Kumar, Junior Assistant has remitted an

amount of Rs.16,500/- in Municipal Treasury on 29.06.2006,

and he has also remitted balance amount of Rs.15,000-00

through Challan No.2279, dated 10.10.2006.

CHARGE No.IV :

That, Sri P.Ashok Kumar, Former Junior Assistant,

Pithapuram Municipality presently working in Bhimavaram

Municipality, has exhibited lack of integrity, devotion to duty,

and conduct and thereby contravened Rule 3 of A.P.C.S.

(Conduct) Rules, 1964.

Basis of Charge :

It is obvious that the employee, who had been entrusted

with responsible duties including sanction of various

Government Schemes to the beneficiaries, has utterly failed in

discharging his duties properly and caused heavy financial

loss to the institution, and also disgraded the respect of the

department in public who apprehended him for their genuine

benefits under various schemes, and lack of sincerity and

integrity while performing his duties.

4. On 29.09.2010, the petitioner submitted his explanation.

Thereafter, an Enquiry Officer was appointed by the Disciplinary

Authority and the Enquiry Officer, so appointed, submitted his report

on 09.02.2011, finding the petitioner guilty of all four Charges.

12

AVSS,J & TMR,J

W.P.No.31599 of 2012

5. Enclosing a copy of the said Enquiry report, the

Disciplinary Authority issued a notice, vide Roc.No.506/2004/A3,

dated 14.02.2011, asking the petitioner to show cause as to why

major punishment should not be inflicted. In response to the said

Show Cause Notice, the petitioner herein submitted his

reply/explanation, dated 24.03.2011. Thereafter, vide letter, dated

26.03.2011, the Disciplinary Authority/Regional Director of Municipal

Administration sought permission of the Commissioner & Director of

Municipal Administration to impose major punishment of dismissal

from service on the petitioner under Rule 9 of the Andhra Pradesh

Civil Services (Classification, Control and Appeal) Rules, 1991 (herein

after referred as ‘Rules’). The Commissioner & Director of Municipal

Administration, vide Memo, dated 15.04.2011, while referring to the

Rules, notified vide G.O.Ms.No.292, MA., dated 16.05.1992,

instructed the Regional Director of Municipal Administration to take

action against the petitioner, if required, without referring the

matter to the Commissioner & Director of Municipal Administration.

6. Eventually, the Regional Director/Disciplinary Authority,

vide order, dated 06.05.2011, inflicted on the petitioner the

punishment of dismissal from service under Rule 9 of the Rules.

Assailing the validity of the said order of punishment, the petitioner

13

AVSS,J & TMR,J

W.P.No.31599 of 2012

herein filed the present O.A.No.5246 of 2011 and the Tribunal, by

way of an order, dated 07.09.2012, dismissed the Original Application

and also dismissed M.A.No.905 of 2012, seeking Review of the said

order.

7. In the above background, the present Writ Petition came

to be instituted, assailing the orders of the Tribunal, confirming the

order of punishment, passed by the Disciplinary Authority.

8. The contentions and submissions of Sri P.V.Ramana,

learned counsel for the petitioner :

1) The orders passed by the Tribunal, confirming the order of

punishment passed by the Disciplinary Authority is highly

erroneous, contrary to law and opposed to the very spirit

and object of the provisions of the Rules, in general and

Rule 20 in particular ;

2) Though the Charge Memo referred to a number of

documents, nobody was examined to prove the said

documents, during the course of regular enquiry ;

3) Charges are highly ambiguous and not definite as

mandated under Rule 20 of the Rules ;

4) Since the order passed by the Tribunal in O.A.No.7112 of

2009, dated 20.11.2009, attained finality and as the said

order did not grant any permission to initiate fresh

disciplinary proceedings on the same charges, the very

initiation of the present impugned disciplinary

14

AVSS,J & TMR,J

W.P.No.31599 of 2012

proceedings would not be permissible ;

5) Though the petitioner submitted his explanation,

highlighting various issues in response to the final Show

Cause Notice, the Disciplinary Authority did not consider

the same, while passing the order of punishment ;

6) Enquiry Officer relied upon the report of the Municipal

Engineer, which was never referred to in the list of the

documents mentioned in the Charge Memo ;

7) The petitioner is neither a processing authority nor a

sanctioning authority for NSDP Tap connections ;

8) No action was taken either on the processing authority or

on the sanctioning authority and the said action is

discriminatory ;

In support of his submissions and contentions, learned counsel

for the petitioner places reliance on the following judgments:

1) Roop Singh Negi V. Punjab National Bank and

others –(2009) 2 Supreme Court Cases 570

2) ORYX Fisheries Private Limited V. Union of

India and others-(2010) 13 Supreme Court Cases 427

3) P.V.Mahadevan V. MD, T.N. Housing Board-

(2005) 6 Supreme Court Cases 636

9. The contentions and submissions of the learned

Government Pleader and the learned Standing Counsel appearing for

the 4

th

respondent :

15

AVSS,J & TMR,J

W.P.No.31599 of 2012

(i) There is no error nor there exists any infirmity

in the orders passed by the Tribunal or in the order of

punishment passed by the Disciplinary Authority and, in

the absence of the same, the impugned orders are not

amenable for any judicial review under Article 226 of the

Constitution of India ;

(ii) Strictly adhering to the mandatory

requirements of law, as mandated in the Rules, and only

after affording complete opportunity to the petitioner, the

Disciplinary Authority passed the order of punishment, as

such, the orders of the Disciplinary Authority and the

Tribunal cannot be faulted.

10. To bolster his submissions and contentions, learned

Government Pleader relied on the following judgments :-

1) State of Uttar Pradesh and Others V. Rajit

Singh- 2022 SCC online SC 341

2) Inspector of Panchayats and District

Collector, Salem V. S.Arichandran and Others-

2022 SCC online SC 1282

11. In the above background, now the points that arise for

consideration of this Court are :-

1. Whether the orders of the Tribunal and the order

of the punishment passed by the Disciplinary

Authority, in the facts and circumstances of the

16

AVSS,J & TMR,J

W.P.No.31599 of 2012

case are sustainable and tenable ?

2. Whether the petitioner is entitled for any relief

from this Court under Article 226 of the

Constitution of India ?

FINDINGS :

12. The material available before this Court reveals that

earlier the Disciplinary Authority issued a Charge Memo, dated

23.05.2005, framing three charges referred to supra. The Enquiry

Officer appointed, pursuant to the aforesaid charges, found the

petitioner guilty of the Charge No.2 and did not find him guilty of

Charge Nos.1 & 3. Thereafter, the Disciplinary Authority passed an

order of dismissal, dated 27.05.2009, and when the same was assailed

in O.A.No.7112 of 2009, the Tribunal allowed the same, vide order,

dated 20.11.2009, and the operative portion of the said order, at

paragraphs 18 to 20, reads as follows :

“…18. From the record, it is clear that there is no

charge of misappropriation at any point of time. With

regard to the irregularities committed by the applicant and

the recovery of loss, the applicant has accepted the

irregularities and remitted the amount of the loss caused.

19. As the charge of misappropriation has not

been served/communicated to the applicant, there cannot

17

AVSS,J & TMR,J

W.P.No.31599 of 2012

be a punishment on the unserved charge and in the case

on hand, such punishment has been imposed in view of

the Commissioner and Director having asked the

Disciplinary Authority to impose punishment as per

G.O.Ms.No.25, dated 03.2.2004. Hence, the case is

squarely covered by the law laid down by the Apex Court

in the cases extracted Supra.

20. In view of the above facts and circumstances,

as the charge of misappropriation has never been served

or enquired into and in view of the directions given by the

higher authority, the punishment has been imposed, the

impugned order is liable to be set aside and is accordingly

set aside. The O.A., is accordingly allowed. The applicant

should be reinducted forthwith along with the back wages

as the impugned order has been set aside as illegal,

arbitrary and without jurisdiction. M.A., stands closed

accordingly.”

13. Thereafter, the Disciplinary Authority issued another

Charge Memo, dated 09.09.2010, framing four charges, while

obviously, splitting the earlier Charge No.2 in the Charge Memo,

dated 23.05.2005, and proceeded with enquiry by appointing an

Enquiry Officer. In fact, a perusal of the order in O.A.No.7112 of

2009, dated 20.11.2009, shows that, while setting aside the earlier

order of dismissal, the Tribunal did not give permission or liberty to

18

AVSS,J & TMR,J

W.P.No.31599 of 2012

the respondents to hold the enquiry.

14. Another significant aspect, which needs to be noted, is

that no witnesses were examined to prove the allegations against the

petitioner and the contents of the documents referred in the Charge

Memo, dated 09.09.2010. In this context, reference to the relevant

provisions of the Rules, is highly essential.

15. The State Government, in exercise the powers conferred

by the Proviso to Article 309 of the Constitution of India, framed the

said Rules and notified the same, vide G.O.Ms.No.487, General

Administration (Services-C) Department, dated 14.09.1992. For the

purpose of resolving the issues in the case on hand, Rule 20 of the

Rules, which deals with the procedure for imposing major penalties,

is relevant and germane.

16. According to Sub-Rule (1) of Rule 20 of the Rules, no

order imposing any of the penalties specified in Clauses (vi) to (x) of

Rule 9 shall be made, except after enquiry held, as far as may be, in

the manner provided in this Rule and Rule 21 of the Rules.

Sub-Rules 3 & 4 of Rule 20 read as follows :

“(3) Where it is proposed to hold an inquiry against a

Government Servant under this rule and rule 21, the

disciplinary authority or the controlling authority who is not

19

AVSS,J & TMR,J

W.P.No.31599 of 2012

designated as disciplinary authority and who is

subordinate to the appointing authority can draw up or

cause to be drawn up—

(i) the substance of the imputations of

misconduct or misbehaviour into definite and

distinct articles of charge;

(ii) A statement of the imputations of misconduct

or misbehaviour in support of each article of

charge, which shall contain;

(a) A statement of all relevant facts including

any admission or confession made by the

Government Servant;

(b) A list of documents by which, and a list of

witnesses by whom, the articles of charge are

proposed to be sustained.

(4) The disciplinary authority shall deliver or cause to be

delivered to the Government Servant a copy of the articles of

charge, the statement of the imputations of misconduct or

misbehaviour and a list of documents and witnesses by which

each article of charge is proposed to be sustained and copies

of the said documents and statements of the said witnesses

and shall require the Government servant to appear before the

disciplinary authority on such day and at such time not

exceeding ten working days and submit a written statement

of his defence and to state whether he desires to be heard in

person. If the charged officer desires to be heard in person,

personal appearance may be allowed before the disciplinary

authority no such day and at such time not exceeding ten

working days.”

20

AVSS,J & TMR,J

W.P.No.31599 of 2012

17. In the instant case, the Charge Memo, dated 09.09.2010,

referred to the following list of documents, vide Annexure-II.

ANNEXURE – II

List of documents by which the Article of Charges framed

against Sri P.Ashok Kumar, Former Junior Assistant, Pithapuram

Municipality presently working in Bhimavaram Municipality are

proposed to be sustained.

1. Letter Roc.No.2325/2000/C1, dated 20.07.2002 of the

Municipal Commissioner, Pithapuram.

2. D.O.Roc.No.2325/2000/C1, dated 20-08-2004 of the

Municipal Commissioner, Pithapuram.

3. Letter Roc.No.2325/2000/C1, dated 03.10.2006 of the

Municipal Commissioner, Pithapuram.

4. Representation, dated 07.03.2007 of Sri P.Ashok Kumar,

Ex-Junior Assistant, Pithapuram Municipality, and

presently working as Junior Assistant, Bhimavaram

Municipality.

5. Letter Roc.No.2325/2000/C1, dated 11.03.2010 of the

Municipal Commissioner, Pithapuram.

6. G.O.Ms.No.458 of G.A.D., dated 22.09.2009.

ANNEXURE – III of the Charge Memo, dated 09.09.2010, reads as

follows :

List of Witnesses by whom the Article of Charges framed

against Sri P.Ashok Kumar, Former Junior Assistant,

21

AVSS,J & TMR,J

W.P.No.31599 of 2012

Pithapuram Municipality presently working in Bhimavaram

Municipality are proposed to be sustained.

---NIL---

The reality remains that vide Annexures, no witness was cited nor any

witness was examined, during the course of regular enquiry to prove

the documents referred, vide Annexure-II.

18. Another significant aspect, which needs to be noted, is

that the Enquiry Officer referred to a report of the Municipal

Engineer, Pithapuram, and the fact remains that the same was not

referred in the list of the documents, vide Annexure-II of the Charge

Memo, dated 09.09.2010.

19. It is pertinent to note that, while imposing penalty on the

employees, strict adherence to relevant Service Rules is absolutely

necessary and essential and any deviation from the mandatory

requirements of law, would, undoubtedly, render the entire

disciplinary proceedings ‘Null and Void’.

20. It is significant to note that the petitioner is neither a

processing authority nor a sanctioning authority for the subject NSDP

tap connections and even though the Town Planning Building Overseer

22

AVSS,J & TMR,J

W.P.No.31599 of 2012

and Municipal Commissioner, being the processing and sanctioning

authorities, no action was taken against them, for the reasons best

known to the respondents, which would, undoubtedly, tantamount to

discrimination, offending under Article 14 of the Constitution of

India.

21. Though a request is made on behalf of the respondents to

remand the matter to the Disciplinary Authority for holding enquiry,

by complying with the mandatory requirements of law, this Court is

not inclined to consider the same, having regard to the said

discrimination and also keeping in view of the fact that the

allegations in the instant case were of the year 2000 and the first

Charge Memo came to be issued in the year 2005.

22. Yet another crucial aspect, which needs attention in this

context, is that, though the petitioner submitted an elaborate

explanation to the final Show Cause Notice, pointing out various

issues and statutory infirmities in holding the Enquiry, which strike at

the root of the matter, the Disciplinary Authority, despite the factum

of receipt of the explanation submitted by the petitioner, did not

make any endeavour to consider the said aspects and passed the

order of punishment without assigning any reasons.

23

AVSS,J & TMR,J

W.P.No.31599 of 2012

23. In fact, all these important and crucial aspects missed

the attention of the Tribunal. In this context, it is also required to be

noted that according to Rule 20 of the Rules, the Charges are

required to be specific and be free of ambiguities. But, in the instant

case, the Charges and the very basis of the Charges are full of

contradictions, ambiguities and in the considered opinion of this

Court, the said aspect is fatal to the case of the respondents.

24. In this context, it may be appropriate to refer to the

Judgments cited by the learned counsel for the petitioner. In the

case of Roop Singh Negi V. Punjab National Bank and

Others (First cited supra), the Hon’ble Apex Court, at Paragraphs

14, 21 & 23, held as follows :

“…14. Indisputably, a departmental proceeding is a

quasi judicial proceeding. The Enquiry Officer performs a

quasi judicial function. The charges leveled against the

delinquent officer must be found to have been proved. The

enquiry officer has a duty to arrive at a finding upon taking

into consideration the materials brought on record by the

parties. The purported evidence collected during investigation

by the Investigating Officer against all the accused by itself

could not be treated to be evidence in the disciplinary

proceeding. No witness was examined to prove the said

documents. The management witnesses merely tendered the

24

AVSS,J & TMR,J

W.P.No.31599 of 2012

documents and did not prove the contents thereof. Reliance,

inter alia, was placed by the Enquiry Officer on the FIR which

could not have been treated as evidence.

21. Yet again in M.V. Bijlani vs. Union of India & ors.

(2006) 5 SCC 88, this Court held:

"....Although the charges in a departmental proceeding are not

required to be proved like a criminal trial, i.e., beyond all

reasonable doubts, we cannot lose sight of the fact that the

Enquiry Officer performs a quasi-judicial function, who upon

analysing the documents must arrive at a conclusion that there

had been a preponderance of probability to prove the charges

on the basis of materials on record. While doing so, he cannot

take into consideration any irrelevant fact. He cannot refuse to

consider the relevant facts. He cannot shift the burden of proof.

He cannot reject the relevant testimony of the witnesses only

on the basis of surmises and conjectures. He cannot enquire

into the allegations with which the delinquent officer had not

been charged with."

23. Furthermore, the order of the disciplinary authority as

also the appellate authority are not supported by any reason.

As the orders passed by them have severe civil consequences,

appropriate reasons should have been assigned. If the enquiry

officer had relied upon the confession made by the appellant,

there was no reason as to why the order of discharge passed by

the Criminal Court on the basis of self-same evidence should

not have been taken into consideration. The materials brought

25

AVSS,J & TMR,J

W.P.No.31599 of 2012

on record pointing out the guilt are required to be proved. A

decision must be arrived at on some evidence, which is legally

admissible. The provisions of the Evidence Act may not be

applicable in a departmental proceeding but the principles of

natural justice are. As the report of the Enquiry Officer was

based on merely ipse dixit as also surmises and conjectures, the

same could not have been sustained. The inferences drawn by

the Enquiry Officer apparently were not supported by any

evidence. Suspicion, as is well known, however high may be,

can under no circumstances be held to be a substitute for legal

proof.

25. In the case of Oryx Fisheries Private Limited V.

Union of India and Others (second cited supra), the Hon’ble

Apex Court, at Paragraphs 39 & 40, held as follows :

39. On the requirement of disclosing reasons by a quasi-

judicial authority in support of its order, this Court has

recently delivered a judgment in the case of Kranti Associates

Pvt. Ltd. & Anr. v. Sh. Masood Ahmed Khan & Others on 8th

September 2010.

40. In M/s Kranti Associates (supra), this Court after

considering various judgments formulated certain principles in

para 51 of the judgment which are set out below

26

AVSS,J & TMR,J

W.P.No.31599 of 2012

a. In India the judicial trend has always been to record reasons,

even in administrative decisions, if such decisions affect

anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of

its conclusions.

c. Insistence on recording of reasons is meant to serve the

wider principle of justice that justice must not only be done it

must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on

any possible arbitrary exercise of judicial and quasi-judicial or

even administrative power.

e. Reasons reassure that discretion has been exercised by the

decision maker on relevant grounds and by disregarding

extraneous considerations.

f. Reasons have virtually become as indispensable a

component of a decision making process as observing

principles of natural justice by judicial, quasi-judicial and even

by administrative bodies.

g. Reasons facilitate the process of judicial review by superior

Courts.

h. The ongoing judicial trend in all countries committed to rule

of law and constitutional governance is in favour of reasoned

decisions based on relevant facts. This is virtually the life blood

of judicial decision making justifying the principle that reason

is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as

different as the judges and authorities who deliver them. All

these decisions serve one common purpose which is to

demonstrate by reason that the relevant factors have been

objectively considered. This is important for sustaining the

litigants' faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial

accountability and transparency.

27

AVSS,J & TMR,J

W.P.No.31599 of 2012

k. If a Judge or a quasi-judicial authority is not candid enough

about his/her decision making process then it is impossible to

know whether the person deciding is faithful to the doctrine of

precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and

succinct. A pretence of reasons or `rubber-stamp reasons' is not

to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of

restraint on abuse of judicial powers. Transparency in decision

making not only makes the judges and decision makers less

prone to errors but also makes them subject to broader

scrutiny. (See David Shapiro in Defence of Judicial Candor

(1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the

broad doctrine of fairness in decision making, the said

requirement is now virtually a component of human rights and

was considered part of Strasbourg Jurisprudence. See (1994) 19

EHRR 553, at 562 para 29 and Anya vs. University of Oxford,

2001 EWCA Civ 405, wherein the Court referred to Article 6 of

European Convention of Human Rights which requires,

"adequate and intelligent reasons must be given for judicial

decisions".

o. In all common law jurisdictions judgments play a vital role

in setting up precedents for the future. Therefore, for

development of law, requirement of giving reasons for the

decision is of the essence and is virtually a part of "Due

Process".

26. In the case of P.V.Mahadevan V. MD, T.N. Housing

Board (third cited supra), the Hon’ble Apex Court, at Para No.11,

held as follows :

“…11. Under the circumstances, we are of the opinion

that allowing the respondent to proceed further with the

departmental proceedings at this distance of time will be very

prejudicial to the appellant. Keeping a higher government

28

AVSS,J & TMR,J

W.P.No.31599 of 2012

official under charges of corruption and disputed integrity

would cause unbearable mental agony and distress to the

officer concerned. The protracted disciplinary enquiry against

a government employee should, therefore, be avoided not only

in the interests of the government employee but in public

interest and also in the interests of inspiring confidence in the

minds of the government employees. At this stage, it is

necessary to draw the curtain and to put an end to the enquiry.

The appellant had already suffered enough and more on

account of the disciplinary proceedings. As a matter of fact, the

mental agony and sufferings of the appellant due to the

protracted disciplinary proceedings would be much more than

the punishment. For the mistakes committed by the

department in the procedure for initiating the disciplinary

proceedings, the appellant should not be made to suffer.”

27. Coming to the judgments cited by the learned

Government Pleader, in the case of State of Uttar Pradesh and

Others V. Rajit Singh (fourth cited supra), the Hon’ble Apex

Court, at Paragraphs 14 to 17, held as follows :

…14. Now, so far as the quashing and setting aside the order

of punishment imposed by the Disciplinary Authority applying

the Doctrine of Equality on the ground that other officers

involved in the incident have been exonerated and/or no action

has been taken against them, is concerned, we are of the firm

view that on the aforesaid ground, the order of punishment

could not have been set aside by the Tribunal and the High

court. The Doctrine of Equality ought not to have been applied

when the Enquiry Officer and the Disciplinary Authority held

the charges proved against the delinquent officer. The role of

29

AVSS,J & TMR,J

W.P.No.31599 of 2012

the each individual officer even with respect to the same

misconduct is required to be considered in light of their duties

of office. Even otherwise, merely because some other officers

involved in the incident are exonerated and/or no action is

taken against other officers cannot be a ground to set aside the

order of punishment when the charges against the individual

concerned - delinquent officer are held to be proved in a

departmental enquiry. There cannot be any claim of negative

equality in such cases. Therefore, both the Tribunal as well as

the High Court has committed a grave error in quashing and

setting aside the order of punishment imposed by the

Disciplinary Authority by applying the Doctrine of Equality.

15. It appears from the order passed by the Tribunal that the

Tribunal also observed that the enquiry proceedings were

against the principles of natural justice in as much as the

documents mentioned in the charge sheet were not at all

supplied to the delinquent officer. As per the settled

proposition of law, in a case where it is found that the enquiry

is not conducted properly and/or the same is in violation of the

principles of natural justice, in that case, the Court cannot

reinstate the employee as such and the matter is to be remanded

to the Enquiry Officer/Disciplinary Authority to proceed

further with the enquiry from the stage of violation of principles

of natural justice is noticed and the enquiry has to be proceeded

further after furnishing the necessary documents mentioned in

the charge sheet, which are alleged to have not been given to

the delinquent officer in the instant case. In the case of

30

AVSS,J & TMR,J

W.P.No.31599 of 2012

Chairman, Life Insurance Corporation of India and Ors. Vs. A.

Masilamani, (2013) 6 SCC 530, which was also pressed into

service on behalf of the appellants before the High Court, it is

observed in paragraph 16 as under:-

“16. It is a settled legal proposition, that once the court

sets aside an order of punishment, on the ground that

the enquiry was not properly conducted, the court

cannot reinstate the employee. It must remit the case

concerned to the disciplinary authority for it to

conduct the enquiry from the point that it stood

vitiated, and conclude the same. (Vide ECIL v. B.

Karunakar [(1993) 4 SCC 727], Hiran Mayee

Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC

293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8

SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12

SCC 30]).”

16. From the impugned judgment and order passed by the

High Court, it appears that when the aforesaid submission and

the aforesaid decision was pressed into service, the High Court

has not considered the same on the ground that the other

officers involved in respect of the same incident are exonerated

and/or no action is taken against them. Applying the law laid

down in the case of A. Masilamani (supra) to the facts of the

case on hand, we are of the opinion that the Tribunal as well as

the High Court ought to have remanded the matter to the

Disciplinary Authority to conduct the enquiry from the stage it

31

AVSS,J & TMR,J

W.P.No.31599 of 2012

stood vitiated. Therefore, the order passed by the High Court in

not allowing further proceedings from the stage it stood

vitiated, i.e., after the issuance of the charge sheet, is

unsustainable.

17. In view of the above discussion and for the reasons

stated above, the findings recorded by the Tribunal as well as

the High Court quashing and setting aside the order of

punishment imposed by the Disciplinary Authority by applying

the Doctrine of Equality is hereby quashed and set aside.

However, as the enquiry is found to be vitiated and is found to

be in violation of the principles of natural justice in as much as

it is alleged that the relevant documents mentioned in the

charge sheet were not supplied to the delinquent officer, we

remand the matter to the Disciplinary Authority to conduct a

fresh enquiry from the stage it stood vitiated, i.e., after the

issuance of the charge sheet and to proceed further with the

enquiry after furnishing all the necessary documents mentioned

in the charge sheet and after following due principles of natural

justice. The aforesaid exercise shall be completed within a

period of six months from today.

28. In the case of Inspector of Panchayats and District

Collector, Salem V. S.Arichandran and Others (fifth cited

supra), the Hon’ble Apex Court, at Paragraphs 14 to 16, held as

follows :

32

AVSS,J & TMR,J

W.P.No.31599 of 2012

“…14. At the outset, it is required to be noted that

the learned Single Judge has set aside the order of

dismissal passed by the Disciplinary Authority on the

ground that the same was in breach of principles of

Natural Justice, in as much as, the copy of the Inquiry

Officer’s Report was not furnished to the delinquent and

his comments were not called for on the Inquiry Officer’s

Report. It is to be noted that the respondent delinquent

was facing the departmental inquiry with respect to a very

serious charge of misappropriation. Therefore, the High

Court ought to have remitted that matter back to the

Disciplinary Authority to conduct the inquiry from the

point that it stood vitiated.

15. At this stage, a recent decision of this Court in the

case of Rajit Singh (supra), in which this Court had

considered its earlier decision in the case of A.Masilamani

(supra) is required to be referred to. In paragraph 15, it is

observed and held as under :-

“15. It appears from the order passed by the

Tribunal that the Tribunal also observed that the

enquiry proceedings were against the principles of

natural justice in as much as the documents mentioned

in the charge sheet were not at all supplied to the

delinquent officer. As per the settled proposition of

law, in a case where it is found that the enquiry is not

conducted properly and/or the same is in violation of

the principles of natural justice, in that case, the Court

cannot reinstate the employee as such and the matter is

33

AVSS,J & TMR,J

W.P.No.31599 of 2012

to be remanded to the Enquiry Officer/Disciplinary

Authority to proceed further with the enquiry from the

stage of violation of principles of natural justice is

noticed and the enquiry has to be proceeded further

after furnishing the necessary documents mentioned in

the charge sheet, which are alleged to have not been

given to the delinquent officer in the instant case. In

the case of Chairman, Life Insurance Corporation of

India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530,

which was also pressed into service on behalf of the

appellants before the High Court, it is observed in

paragraph 16 as under:-

“16. It is a settled legal proposition, that once the court

sets aside an order of punishment, on the ground that the

enquiry was not properly conducted, the court cannot

reinstate the employee. It must remit the case concerned

to the disciplinary authority for it to conduct the enquiry

from the point that it stood vitiated, and conclude the

same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727],

Hiran Mayee Bhattacharyya v. S.M. School for Girls

[(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S.

Pandey [(2005) 8 SCC 264] and Union of India v. Y.S.

Sadhu [(2008) 12 SCC 30]).”

16. Applying the law laid down by this Court in the

aforesaid decisions to the facts of the case on hand and as the

order of dismissal has been set aside on the ground that the

same was in breach of principles of Natural Justice, the High

Court ought to have remitted the case concerned to the

Disciplinary Authority to conduct the inquiry from the point

that it stood vitiated and to conclude the same after

furnishing the a copy of the Inquiry Report to the delinquent

and to give opportunity to the delinquent to submit his

comments on the Inquiry Officer’s Report.”

34

AVSS,J & TMR,J

W.P.No.31599 of 2012

29. In the facts and circumstances of the case and having

regard to the reasons recorded supra, the judgments cited by the

learned counsel for the petitioner and the principles laid down in the

judgments are squarely applicable to the case on hand and the

judgments cited by the learned Government Pleader would not

render any assistance to the case of the respondents herein.

30. Another significant aspect, which needs to be noted, is

that the present case is a case, where there is a total violation and

infraction of mandatory requirements of law, as provided under the

Rules, and the fact remains that the writ petitioner is not

complaining violation of the principles of natural justice.

31. On the other hand, the specific complaint is to the

vagueness in the Charges and the absence of any proof and violation

of the provisions of law, referred to supra. It is also relevant to note

that the entire case of the Department rests on the aspect of non-

tallying of the cheques, but not misappropriation of the amount.

32. In these circumstances and having regard to the reasons

and findings recorded supra and having regard to the law laid down

by the Hon’ble Supreme Court, in the above referred judgments, this

Court has absolutely no scintilla of hesitation to hold that the

35

AVSS,J & TMR,J

W.P.No.31599 of 2012

impugned orders of dismissal passed by the Disciplinary Authority and

orders of the Tribunal are neither sustainable nor tenable in the eye

of Law.

RESULT :

33. For the aforesaid reasons, the Writ Petition is allowed,

setting aside the orders of the Tribunal, dated 13.02.2012, in

O.A.No.5246 of 2011 and also the orders in Review in M.A.No.905 of

2012 in O.A.No.5246 of 2011, dated 07.09.2012, and the impugned

dismissal order, dated 06.05.2011, passed by the 1

st

respondent/the

Regional Director-cum-Appellate Commissioner of Municipal

Administration, Rajahmundry, East Godavari District. Consequently,

the respondents are directed to reinstate the petitioner into service

with all consequential and attendant benefits. There shall be no

order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

______________

A.V. SESHA SAI, J

____________________

T.MALLIKARJUNA RAO, J

6

th

October,2023

Note: LR copy to be marked.

B/o

RPD

36

AVSS,J & TMR,J

W.P.No.31599 of 2012

204

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

&

THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

WRIT PETITION No.31599 of 2012

Dated : 06.10.2023

Note: LR copy to be marked.

B/o

RPD