IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON’BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

&

HON’BLE Mr. JUSTICE NINALA JAYASURYA

WRIT APPEAL No.1899 of 2013

(Through Video-Conferencing)

Visakhapatnam Port Trust, represented by its

Deputy Chairman, Port Area, Visakhapatnam,

and another … Appellants

Versus

E. Subrahmanyam, S/o. Balarama Murthy,

R/o. DLB Quarters, Type 111/26, Khailasapuram,

Visakhapatnam … Respondent

Counsel for the appellants : Mr. P. Veerraju

Counsel for the respondent : Mr. J. Sudheer

Date of hearing : 02.09.2021

Date of judgment : 23.09.2021

JUDGMENT

(Arup Kumar Goswami, CJ)

This writ appeal is presented against an order dated 28.08.2013

passed by the learned single in W.P.No.23350 of 2012 setting aside the

order dated 24.07.2012, whereby penalty of removal from service was

imposed upon the petitioner (respondent herein) and providing that for all

practical purposes, the petitioner shall be deemed to have continued in

service of Visakhapatnam Port Trust (VPT) and shall be entitled for all

benefits with costs of Rs.5,000/-.

2. Heard Mr. P. Veerraju, learned counsel for the appellants and

Mr. J. Sudheer, learned counsel for the respondent/petitioner.

3. Respondent in the present appeal shall be referred to as the

petitioner.

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4. The case of the petitioner as presented in the writ petition, in short,

is that he had joined Visakhapatnam Dock Labour Board in the year 1982 as

a Clerk and later on, was promoted as Junior Assistant. Subsequently, he

was promoted to the post of Vigilance Inspector in the year 2005. In the

year 2008, Visakhapatnam Dock Labour Board was merged with VPT and

then from that point onwards, it is known as Cargo Handling Division (CHD)

of VPT headed by the Traffic Manager, who is the disciplinary authority of

the employees of the CHD. He was felicitated with a Citation of Merit by

the Chairman on 26.01.2009 for being instrumental in investigating eight

cases which were sensitive in nature. An employee by the name of

Smt. E. Sanyasamma, working as Sanitary Khalasi in the CHD, applied for

voluntary retirement under a Special Voluntary Retirement Scheme (SVRS)

vide an application dated 05.06.2010. The same was approved by

the Chairman of VPT on 11.06.2010. The application was marked to the

petitioner by the Assistant Vigilance Officer on 17.06.2010. On examination

of records, finding that no disciplinary proceedings are

pending/contemplated against the concerned employee, the petitioner put

up a note accordingly, which was approved by the Chief Vigilance Officer,

and, accordingly, he addressed a letter stating that there were no vigilance

cases pending against her.

5. Some information was received that because of ill-health,

Smt. E. Sanyasamma had expired and, accordingly, it came to light that the

said lady died on 16.06.2010 in Care Hospital, Visakhapatnam.

6. A memo dated 08.10.2010 was issued against the petitioner under

Regulation 10 of the Visakhapatnam Port Employees (Classification, Control

& Appeal) Regulations, 1968 (for short, “Regulations of 1968”), essentially

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for issuing vigilance clearance despite ill-health of Smt. E. Sanyasamma.

The article of charge reads as under:

“That Sri E. Subrahmanyam, while functioning as Vigilance

Inspector, CHD, Traffic Department in Vigilance Department,

VPT, Smt. E. Sanyasamma, Sanitary Khallasi, Emp.No.606339,

CHD, was posted to work at his office as Khallasi and Sri E.

Subrahmanyam, Vigilance Inspector, CHD used to recommend

her leaves whenever she applies. Smt. E. Sanyasamma had

applied for SVRS on 05-06-2010 and in the meantime, due to

prolonged sickness, Smt. E. Sanyasamma expired on

16-06-2010. Sri E. Subrahmanyam also knew the fact that she

is ill and the case is not fit for Special VRS, where the financial

benefits are more. Sri E. Subrahmanyam suppressed the facts

of her illness and recommended the case for Vigilance

Clearance to undergo Special Voluntary Retirement Scheme.

He also asked Sri K. Subbarao, J.A. of Personnel section of CHD

on 17.06.10 to come to Vigilance department to collect the

Vigilance clearance letter issued in respect of Smt. E.

Sanyasamma, Sanitary Khallasi. Despite knowing the facts, Sri

E. Subrahmanyam, Vigilance Inspector, CHD has processed the

case for issuance of Vigilance clearance in respect of Smt. E.

Sanyasamma, Sanitary Khallasi, Emp. No.606339, CHD, Traffic

Department for Special Voluntary Retirement Scheme.

Being a responsible employee looking after the Vigilance works

of CHD, Sri E. Subrahmanyam should have verified the facts

and health conditions of the above SVRS applicant before

processing the Vigilance clearance. But he did not do so and

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processed for approval in granting SVRS to Smt. E.

Sanyasamma.

By the above facts, Sri E. Subrahmanyam, Vigilance Inspector,

CHD of Traffic Department, has exhibited gross misconduct,

unbecoming of a public servant and as such, he failed to

maintain absolute integrity and devotion to duty.

Thus, he violated Regulation 3(1) and Regulation 3 (3-A) of VPE

Conduct Regulation, 1964.”

7. In the written statement, the petitioner denied the allegations and

prayed for dropping of the proceedings. Not being satisfied with the written

statement submitted, an inquiry officer was appointed vide order dated

15.12.2010 along with a presenting officer. During the inquiry proceedings,

eight witnesses were examined on behalf of the appellants and the

petitioner examined no witness.

8. The inquiry officer, on consideration of the oral and documentary

evidence, held that the charge framed against the petitioner is proved and,

accordingly, submitted inquiry report on 12.04.2012. A letter dated

02.05.2012 was issued to the petitioner by the competent authority, i.e.

Deputy Chairman, VPT, enclosing a copy of the inquiry report and in the

said letter, it was communicated that petitioner may make a representation

in writing to the competent authority within 15 days. The petitioner

submitted representation to the aforesaid inquiry report on 18.05.2012.

The Deputy Chairman, VPT, on consideration of the materials on record, by

order dated 24.07.2012, imposed a deterrent punishment of removal from

service to make it exemplary.

9. It is pertinent to mention that while admitting the writ appeal by

order dated 20.01.2014, no interim order was granted and, accordingly,

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petitioner was reinstated into service and, later on, he superannuated on

30.11.2019.

10. The contention of Mr. Veerraju, learned counsel for the appellants, is

that under Visakhapatnam Port Employees (Conduct) Regulations, 1964

(for short, “Regulations of 1964”), which were framed under Section 126

read with Section 28 of the Major Port Trusts Act, 1963, an appeal would lie

to the appellate authority against the order imposing penalty and despite

there being alternative remedy available, the petitioner did not avail such

remedy and, therefore, the writ petition was liable to be dismissed and the

learned single Judge was not justified in entertaining the writ petition. It is

submitted that materials on record clearly establish that the charge had

been proved and, therefore, the learned single Judge was wholly in error

and, as such, even otherwise, the order of the learned single Judge is liable

to be set aside and quashed. In support of his aforesaid contention, he has

drawn the attention of the Court to the findings recorded by the inquiry

officer as well as the observations of the Deputy Chairman, VPT while

imposing the penalty by order dated 24.07.2012.

11. Mr. J. Sudheer, learned counsel for the petitioner, submits that as

the petitioner was reinstated in service, the writ appeal has become

infructuous. It is further submitted by him that till now, pensionary benefits

have not been released to the petitioner though one and a half year has

passed from the date of retirement. He also contends that in any view of

the matter, no interference is called for with regard to the impugned order

passed by the learned single Judge.

12. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

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13. Part V of the Regulations of 1968 is on the subject “Discipline”.

Regulation 8 deals with “Penalties”, which can be either minor penalties or

major penalties. It is provided that penalties may be imposed on an

employee for good and sufficient reasons.

14. The sum and substance of the allegation against the petitioner is that

he being an employee looking after the vigilance works of CHD, should have

verified the facts and health condition of the SVRS applicant

Smt. E. Sanyasamma before processing the vigilance clearance, but he did

not do so and processed the SVRS application for approval in granting SVRS

to Smt. E. Sanyasamma and thereby he had exhibited gross misconduct,

unbecoming of a public servant and he had failed to maintain absolute

integrity and devotion to duty and thus he violated Regulation 3(1) and

Regulation 3 (3-A) of the Regulations of 1964. However, it is not indicated

which clause of Regulation (3-A) (a) to (f) is violated by the petitioner.

15. Regulation 3 and Regulation 3 (3-A) read as under:

“3. GENERAL:

1. Every employee shall, at all times, maintain absolute integrity

and devotion to duty.

2. No employee shall use his position or influence directly or

indirectly to secure employment for any member of his family in

any company or firm.

3. No employee holding a Class-I post shall except with the

previous sanction of the Board, permit his son, daughter or any

other dependent to accept any employment with any firm

or company with which he has dealings in his capacity as such

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employee or with any other firm having dealings with the

Board. Provided that where the acceptance of such employment

by the son, daughter or other dependent of such employee

cannot await the prior permission of the Board or is otherwise -

considered urgent; the matter shall be reported by the

employee to the Board and the employment may be accepted

provisionally subject to the permission of the Board.

(a) (1) Every employee holding a supervisory post shall take all

possible steps to ensure the integrity and devotion to duty of all

employees for the time being under his control and authority.

(2) No employee shall, in the performance of his official duties

or in the exercise of powers conferred on him, act otherwise

than in his best judgment except when he is acting under the

direction of his official superior and shall, where he is acting

under such direction, obtain the direction in writing, wherever

practicable, and where it is not practicable to obtain the

direction in writing, he shall obtain written confirmation of the

direction as soon thereafter as possible.

(3) Oral instructions should not, as far as possible, be issued .by

senior officers to their subordinates, if the oral instructions are

issued by any senior Officer they should be confirmed by him in

writing immediately thereafter.

(3-A) (a) Act in a manner prejudicial to the interest of the Port.

(b) Be absent without sanctioned leave.

(c) Neglect work or show negligence in the performance of

work including slowing down the work.

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(d) Commit any act which is subversive of discipline or of good

behaviour.

(e) Abet or attempt to abet any act which amounts to

misconduct.

(f) Act in in-subordination or dis-obedience in combination with

others".

16. Along with the article of charge dated 08.10.2010, a statement of

imputations and misconduct or misbehaviour against the petitioner was

annexed. However, the statement of imputations and misconduct or

misbehaviour is described as articles of charge. It will be relevant to take

note of the aforesaid statement of imputations also, which read as under:

“That Sri E. Subrahmanyam, while functioning as Vigilance

Inspector, CHD, Traffic Department in Vigilance Department,

VPT, has processed the case for issuance of Vigilance clearance

in respect of Smt. E. Sanyasamma, Sanitary Khallasi, Emp.

No.606339, CHD, Traffic Department for Special Voluntary

Retirement Scheme. The applicant had applied for SVRS on 05-

06-2010 and in the meantime, due to prolonged sickness, Smt.

E. Sanyasamma expired on 16-06-2010. Despite knowing the

fact that Smt. E. Sanyasamma who was posted to work at his

office situated at erstwhile VDLB office as Khallasi was a sick

person and not attending to duties due to her ill health, Sri E.

Subrahmanyam has recommended as if she is healthy and

attending her regular duties. Thereby, he has suppressed the

facts and processed the case for Vigilance clearance.

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Though her case is not fit to undergo Special Voluntary

Retirement Scheme where the financial benefits are more when

compared with medical invalidation. He asked Sri K. Subbarao,

JA of Personnel Section of CHD on 17-06-2010 to come to

Vigilance department to collect the Vigilance clearance letter

issued in respect of Smt. E. Sanyasamma, Sanitary Khallasi.

Being a responsible employee looking after the Vigilance works of

CHD, Sri E. Subrahmanyam should have verified the facts and

health conditions before processing the Vigilance clearance. But

he did not do so and processed for approval in granting SVRS to

Smt. E. Sanyasamma. In fact, Smt. E. Sanyasamma was posted

to work at V.I.’s office situated at erstwhile VDLB building.

Further, Sri E. Subrahmanyam, Vigilance Inspector, CHD

concealed the fact that he is maintaining a separate room at

erstwhile VDLB building while having a room at Vigilance

Department. He has also concealed the fact that he is

maintaining imprest amount though he is not eligible. He is also

not signing in the Attendance Register every day and not

submitting leaves through CVO. These acts tantamount to failure

to be a Vigilance person.

By the above acts, Sri E. Subrahmanyam, Vigilance Inspector,

CHD of Traffic Department, exhibited gross misconduct,

unbecoming of a public servant and as much as, he failed to

maintain absolute integrity and devotion to duty.

Thus, he violated Regulation 3(1) and Regulation 3(3-A) of VPE

Conduct Regulation, 1964.”

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17. In the said statement of imputations, further allegation is levelled

that the petitioner is maintaining a separate room at erstwhile VDLB

Building while having a room at Vigilance Department and he has also

concealed the fact that he is maintaining imprest amount though he is not

eligible and that he is also not signing in the Attendance Register every day

and not submitting leaves through CVO, which tantamount to failure to be a

vigilance person.

18. A comparison of the articles of charge and the statement of

imputations of misconduct would go to show that the statement of

imputations of misconduct has travelled beyond what is indicated in the

articles of charge. The statement of imputations of misconduct are

materials in support of the charge. Such statement of imputations of

misconduct cannot go beyond the allegations forming part of the articles of

charge.

19. Though the inquiry officer noticed that charges were framed in

articles of charge – Annexure I, at paragraph 10 of the inquiry report, it was

held as follows:

“Therefore, the charge framed that being a responsible

employee looking after the vigilance works of CHD, Sri E.

Subrahmanyam should have verified the facts and health

condition before processing the Vigilance clearance, but he did

not do so and processed for approval in granting SVRS to Smt.

E. Sanyasamma, and concealing the fact of maintaining a

separate room in CHD/maintaining imprest account in CHD, not

signing in the attendance registers everyday and not submitting

leaves through CVO, clearly established as per the evidence

of SW-1, 2, 3, 4, 5, 6, 7 & 8.”

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20. Thus, though no charge was laid against the petitioner regarding

concealing the fact of maintaining a separate room at erstwhile VDLB

Building while having a room at Vigilance Department, concealing the fact

that he is maintaining imprest amount though he is not eligible and that he

is also not signing in the Attendance Register every day and not submitting

leaves through CVO, the same were also held to be established by the

inquiry officer.

21. The Deputy Chairman, who is the competent authority, however,

based the order of removal of the petitioner on the basis of the charge as

contained in the charge memo and it is in that context, the learned single

Judge had observed that ‘mercifully’, the Deputy Chairman has not

accorded his approval to the otherwise unsustainable findings recorded by

the inquiry officer in connection with the imputations against the petitioner

and confined his consideration only with regard to the allegation made in

the charge memo. It will be relevant to extract the findings of the Deputy

Chairman/competent authority, which is as follows:

“The undersigned after having gone through the case file in

detail and perused the charge sheet, inquiry report as well as

the replies of Sri E. Subrahmanyam, Vigilance Inspector, CHD,

at various stages, in the case finds that-

1. The charged officer in this case was performing a dual

role:

(i) as, Vigilance Inspector, CHD,

(ii) as, leave sanctioning officer for Smt. E.

Sanyasamma

2. Though there is no bar for sick people, not to be

granted SVRS, it is the bounden duty of the leave

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controlling officer to perform, atleast perfunctionary”

a Cost-benefit analysis” of each individual case, which

applied for SVRS and then put up to his/her HoDs for

approval/rejection.

3. Being a Vigilance Inspector he should have been doubly

careful in processing such cases. That he has not

appraised all factors to his controlling authority is a

serious lapse. The undersigned fully agrees with the

Inquiry officer in this regard.

4. Also, that Vigilance Clearance was obtained and SVRS

granted on same day i.e., 17.06.2010, without following

the “dak” procedure (which, however, is not

mandated) leads to strong suspicion, though it is not

substantiated. While giving the charged officer “benefit

of doubt” in this aspect, and in other related issues, the

charged officer cannot be absolved from the

proven charge of not being “vigilant” enough in

dealing with this particular SVRS case, wherein

the employee was directly working under him.

5. The charged officer has wilfully suppressed the facts to

CVO, while forwarding the SVRS case to Vigilance

department. Being a Vigilance Inspector, himself, that he

has done so, is shocking.

The undersigned, after taking into consideration all the

above facts, and the gravity of offence committed by the

charged officer, a deterrent punishment is thus being

imposed to make it “exemplary” for all such Officers /

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Staff. Thus impose a punishment of “removal from

service” on Sri E. Subrahmanyam, Vigilance Inspector,

CHD, Traffic Department.

The Appellate Authority in this case is the Chairman/VPT

and appeal, if any, shall be preferred by him within 45

(forty five) days from the date of receipt of these

proceedings.

22. The Deputy Chairman recorded a finding that there is no bar to grant

SVRS to sick people, but observed that it is the bounden duty of the leave

controlling officer to perform at least a perfunctory (written as

perfunctionary) “Cost-benefit analysis” of each individual case who applied

for SVRS and he has not apprised all factors to his controlling authority for

approval/rejection, which is a serious lapse, thereby introducing elements

which were not part of the charge memo. The learned single Judge, in this

context, observed as follows:

“To say the least, the failure of the writ petitioner to

indulge in cost-benefit analysis is not even forming part

of the charge laid against him. Therefore, a new limb of

charge has crept into the area of consideration as

reflected in the impugned order than what has been

contained actually in the charge memo dated

08.10.2010. Further, no witness examined spoke of the

necessity or requirement of any such analysis to be

carried out by a Vigilance Inspector. The impugned

order is obviously not alive to the circular instructions

issued on 13.03.2010 by the Visakhapatnam Port Trust

offering special voluntary retirement scheme benefits for

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the surplus employees of the Cargo handling Division

(former Dock Labour Board), to be weeded out. It is apt

to remember that this circular was issued based upon the

decision taken by the Board of Trustees of the

Visakhapatnam Port Trust. It is hard to believe that the

Board of Trustees would have taken any such decision

without properly weighing the cost-benefit analysis when

they ordered for sanction of SVRS benefits exclusively for

CHD of Visakhapatnam Port Trust. The only condition

requisite contained therein is that the candidate should

not be rendering essential services to the CHD.

Therefore, there is no sanction or approval granted by

the Board of Trustees to grant SVRS benefits only after

cost-benefit analysis is done in each case.

This apart, any such analysis is what is liable to be

carried out by the ultimate decision making/VRS

accepting authority, as he has a right of rejection of the

offer. Such a decision cannot be carried out by a

Vigilance Inspector. It is clearly beyond the scope of

exercise of power by a Vigilance Inspector.”

23. It was further observed by the learned single Judge as follows:

“The impugned order brings out, to the fore, as to the

fundamental question as to whether while offering a

vigilance clearance, the health and other aspects of an

employee are also needed to be set out at all. No one

has spoken about any such requirement or, is it a part of

the duty of those who offer vigilance clearance. When

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once it is conceded, in principle, that there is no bar for a

person who is not maintaining good health to seek

voluntary retirement and for accepting any such offer as

well, it passes my comprehension, as to how the lack of

a statement with regard to the health condition of the

applicant is in any manner material or relevant for the

consideration of the request of the applicant for

voluntary retirement. I am clearly of the view that the

respondent has exceeded the authority vested in him in

finding the petitioner guilty of the charge.

24. It is not the allegation that the petitioner was aware of the death of

E. Sanyasamma and despite knowing the same, he has processed her SVRS

application. It is in that context, it is observed by the learned single Judge

as follows:

“It is apt to remember that, when the application of Smt.

E. Sanyasamma is handled, no one had the actual benefit

of the information of her death. Information in that

regard had percolated only due to the subsequent

correspondence entered into with the Care Hospital by

the Visakhapatnam Port Trust. As was already noticed, it

is no part of a duty of the Vigilance Inspector to talk of

the fragile health condition of the applicant of a

Voluntary Retirement Scheme. If I may observe, if any

had talked of any such feature about the applicant, it

would be reflective of the petty mindedness on the part

of such an employee. Taking any such factor into

account or consideration would also be completely

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beyond the scope of the scheme sanctioned by the Board

of Trustees itself. I am therefore, not able to accept the

contention of Sri Sriram, that the petitioner has

committed misconduct particularly in view of the legal

regime noticed supra.”

25. In connection with the submission advanced by the learned counsel

for the applicants regarding alternative remedy, the learned single Judge

held that availability of alternative remedy is not an absolute bar for

entertaining a writ petition and in the case on hand, when the petitioner

was sought to be penalised for an allegation which was not forming part of

the charge memo and there was no good or sufficient reason for imposition

of penalty, discretion was exercised to entertain the writ petition. In the

attending facts and circumstances of the case, we are of the opinion that

the order of the learned single Judge cannot be set at naught on the

ground that the petitioner ought to have been relegated to pursue

alternative remedy.

26. On due consideration, we are in agreement with the view taken by

the learned single Judge and we see no good ground to interfere with the

order of the learned single Judge.

27. The writ appeal is, accordingly, dismissed. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J

MRR