9: .MJE:NP-FRA KIMAR v. state of relangana and another

Order

This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, wherein the following prayer is made: ".....to issue an appropriate writ, order or directton more particularly one in the nature of writ oF mandamus declaring that the impugned proceedings NO.3518/Admn/A2/2019, dated 27 .Ol.?020 is in violation to the orders dated 06.01.2020 of the Hon'ble Hrgh Court of Telangana, Hyderabad in W.P.No.241 of 2020, in violation of Rule 20 of TSCS (CC&A) Rules, 1991 and not giving opportunrty to the petitioner to submit his further defence statement to Inquiry OFficer's report conlmunicated to the petitioner rn Memo No.3518/Admn/ A2/2OL9, dated 27.f2.2019 and not sustainable under law. Consequently set aside the impugned proceedings No.3518/Ad mn/ A2/2019 dated 27.O1.2O20 and to pass such other order or orders ...." Ireproduced verbatim]

I have heard the submissions of Sri Siripuram Keshava, learned counsel appearing for Mr. Syed Mushtaq Ahmed, learned counsel for the petitioner, learned Assistant Government Pleader for Services-I representing the respondents and perused the record.

3. The facts that lead to filing of this writ petition are as follows: The petitioner was selected as Statistician by the then Andhra Pradesh State Public Service Commission in the year 1987. He appointed as Assistant Statistical Officer in the office of the Mandal Revenue Office, Peddakotapally Mandal, Mahaboobnagar District on

01.02.1989. The date of birth of the petitioner was recorded as

17.12.1962 in his service register. While so, Respondent No.2 issued 2 l!sti.e wP No 20r5 0f 2020 ,uvvadi Srid ..r1 a charge d iscrepa nci,ts tTl r I rnc,/ datr:d 31.07 .2019 to the t),ltitioner alleging recording of his date of birth ir the service book. Two artir.les r: r'harges was Framed against the Del it on,:r. The gist of charge irr I'rt:l: No.1 is that the petitioner has l'.rrn shed different dates of bir,h ,c different authorities at different p,)ints of time with a authoritie j of t tr. Government, SO malafide inte. i()n of deceiving the as to contin u( ii the Government of superanr ut petitioner f.I l{ when he wa: service beyond l.-le :;tipulated age :i,)n. The gist of charge in Articl,: No 2 is that the d to comply with the orders of srl.erilr authorities rJirected to submit relevant origi-,,r1 (,ocuments in support oF h is tctual date of birth, particularly, his :riginal Secondary School Ce rtif ic Thereafte., tl

13.08.2019 tc attested Cop re memo/ d atod document:; anr found to be r Telangana Stat 1991 (the rules defence staten submitted a ri: requesting tc s tt: (SSC), even after providing reascn,rblr: opportunity. e petitioner submitted a repr( sent,ttion, dated Respondent No.1 requestinq to L-.ovide him the of some documents. The llespc nrient No.2, vide 16.08.2019, provided the petiti )r.rer with some further informed him that thr: docrrntents which are )lr:y5n, are only supplied as per Flule 20(5)(e) of ,livil Service Classification Control irrrd l,ppeal Rules, "lor brevity") and directed the retitior er l:o submit his ent within four days. Thereaftr r the petitioner )r-.sentation, dated 19.08.201,1 to t.,,:sprtndent No.2 rJrply him the relevant docunrents ,:rnatrling him to it:::, { 3 Justi.e Juvvadi Sridevi WP No.2015 ol2O2O submit his defence statement more perfectly. However. Respondent No.2 issued proceedings No.3518/Adm n/A2/2Olg, dated 22.08.2019 appointing an Inquiring Officer, requesting him to commence the enquiry forthwith and submit a report within twenty days. Alleging that without considering the representation of the petitioner, dated

19.08.2019, the respondent No.2 had appointed the Inquiry Officer, the petitioner filed W.P.N).7B527 of 2Ot9 before this Court. This Court, vide order, dated 27.08.2019, disposed of the writ petition gratinq liberty to the petitioner to file written statement of his defence in response to the charge memo, dated 31.07.2019. This Court further directed that if the petitioner files written statement of his defence, the same shall be considered objectively and to take further course of action as warranted by law. It was also directed that till a decision is made on due consideration of written statement of defence, if any filed, within the time granted, the appointment of Inquiry Officer shall be deferred. It was further observed that it is open to the disciplinary authority to proceed further, if the defence statement is not found satisfactorily and that allegations against the petitioner have to be enquired. Thereafter, the petitioner submitted his preliminary defence statement on 04.10.2019. However, the respondent No.2, vide proceedings No.351B/Admn/A2/2O19, dated

19.L0,2019, appointed an Inquiry Officer to enquire into the charges framed against the petitioner. The Inquiry Olficer issued notice on "l 4 ,ustrce luvvadiSride wP No,2015 0t 2020 ': difFerent dtrte ; to the petitioner and the petiti,)rrer attended the enquiry anrl ;Lbmitted written representations orr \arious dates, pleading hi:; i rr or:ence. The petitioner alsc) requ€rsted the Inquiry officer that he nray be permitted to peruse the relt:,r ant files and that he is entitle. :o cross examine the presr:ntinc witnesses, trut f leyssy"r, it is alleged that I e was; same. The-e, fter, subsequent to the enqu ry ol Officer and the deprived of the

11.12.2019, the Inq uiry Officer provided the petitioner the lis._ of cor;unrents marked aS EXS.S1 to S documents llt Thereafter', l:ht

18.12.2019 to enclosing f u rtl

17.12,1962 an, oFfices/institu ti( officer, basec o also G.O.[4s,N enquiry. Ther 27 .12.20t9, cc

18.12.2019 to representa tion c W.P.No.24t o,2 dated 27.1,>_.201

2.t on hehalf of the disciplinary auth< r ty and the list of 'l ed as Exs.D1 to D4 on be,half :,r, tie petitioner. retitioner submitted another reprer:;;en.:ation, dated the Respondent No.2 and 1:o th 3 Inluiry Officer e- documents stating that his rlate of birth is :hat any other date of birth indictrtr:d by the other n j; are incorrect, false and invalicl , The Inquiry r the documentary eviderice available betbre him and ,. l-65, dated 21.O4.1984, proceeJ(::d to conduct :after, the Respondent No.2, vide: memo, dated nmunicated a copy of the r:nquir.r/ report, dated the petitioner directing him t) submit his r or before 13.01.2020. While so, ttrr:, petitioner filed l.l0 before this Court seeking t,) set 3:,;ide the memo, J communicating the enquiry r()port :,:r thr: petitioner. 5 lustice luvvadi S.idevi wP No.201s of 2020 .,/ ,',,,,,, .,/ This Court, vide order. dated 06.01.2020, disposed of the writ petition directing the petitioner to submit his objections to the Inquiry Officer's report in pursuance to the proceedings, dated 27.12.20t9 and upon such objections being received, the disciplinary authority shall. consider the same and pass appropriate orders in accordance with law within a period of four weeks from the date of receipt of a copy of the said order. Thereafter, the petitioner submitted representation, dated 13.0L.2020 to Respondent No.2 informing that the petitioner would submit further defence statement to the enquiry report on receipt of copy of the order, dated 06.01.2020 passed by this Court in W.P.No.24l of 2020. However, Respondent No.2, vide proceedings, dated 27.01.2020, imposed the penalty of dismissal of the petitioner from Government service with immediate eFfect. Hence, this writ petition.

4. Learned counsel for the petltioner. would submit that the respondents. in utter violation of the order, dated 06.01.2020 passed by this Court in W.P.No.241 of 2020, issued the proceedings, dated 27 .01.2020 dismissing the petitioner from service, though the petitioner, in his representation, dated 13.01.2020, categorically stated that he would file his further defence statement to the Inquiry Officer's repoft on receipt of a copy of the order passed by this Court in W.P.No.247 of 2020. In fact, there is a specific direction in the 6 lustice luvvadiSride WP No,2015 of 2020 ii"!s:elj !;l ':- :. order/ dated submit his rtb No.2 ought t( Unfortu nately, No.2 passec t the represerrta petitioner re ce Court on 24,0 Respondeat Nc 3r;.01.2020 passed by this Court t:.tho petitioner to e(rtions to the Inquiry Officer,s report. Tlte Respondent I ave waited till objections arr: filec l)y :he petitioner. rvithout considering the objection:; th3 Respondent re impugned proceedings, daied 2.7.)1'.2020 basing on :ion,, dateo 73.01.2020 which is; a prtvisional one. The v3d the copy of the order, dated (rra,.01.2020 of this ..1020 and to the utter surprise of :h e petitioner, the 2 passed the impugned order, datel 27.0t.2020 i.e., a c )l:)y ()f the order, within three d,ys from the date of receipt of dated 06.01,2t2) by the petitioner. Hence dated 27.01.2C l(r passed by the Respondent t\o.2 orders passerl y this Court. the rrnpLtgned order, !; contrary to the a so, Respondent 1:he Respondent tro lhe rules in No.2 deviateJ On ea rlier occas;ions :he procedure and acted contrarv appointing th,r n(luiry Officer. Hence the actjon ol No.2 in a,:ting [,rejudicially against the petitioner is illegal and arbitrary. The -epresentation, dated 13.OI.2O2O s.,,l:rmitted by the petitioner is c nl , a provisional one and in an\/ even::, it cannot be treated as fur.thr r defence statement to the Inquiry (:)fficer,s report. 'Jo.2, boring grudge against the petitir:ner and with a )| t passed the impugned proc l(idings, dated fherefore, the impugned procc e{lin{ls, dated 1 violation of principles of nal.ural i,rstic e and the malafide inte 1t The Responder)t

27.0I.2020 are

27.0r.2020. "t. /// same is liable to be set aside and ultimately prayed to grant the relief sought in this writ petition. 7 Justic. _)uwv:di sridGvi WP No.201S or 2O2o

5. The respondents Fired counter. It is contended on beharf of the respondents that the petitioner furnished different dates of birth, i.e. 17.12.7960, t7.12.tg62 and 17.09.1959 to different authorities at different points of time. While verifying the service book of the petitioner, it was noUced that his date of birth was recorded as 17.L2.1962. However, according to the recruitment records, the petitioner shown his date of Oirtn as L7.72.L960 at the time of recruitment. At the time of joining his First post, the petitioner shown his date of birth as 17.72.1960. Thus, for crarification as regards the actual date of birth of the petitioner, Respondent No.2 issued severar memos on different dates directing the petitioner to submit his originar secondary schoor certificate or any other rerevant originar record in support of his actual date of birth. petitioner did not furnish his Secondary School Certificate or any other original documents in favour of his actual date of birth. Therefore, Respondent No.2 addressed a retter, dated 05.07.2019 to the Board of secondary Education requesting to furnish the date of birth of the petitioner. Accordingly, the Board of Secondary Education informed that as per their records, the date of birth of the petitioner was 17.09.1959. Further, Respondent No.2 addressed But however, the a-' --n-,, \ 'r .\ttl:.! .' I 14P No,20l5 0t 2020 letters to Z )l- S, I\Jarayarpur of Yadadri Bhong r )i:;trrct, Nanakram Bhagavardas Decree C,tlle rgr Intermediate College, Hyder,tbad .rnd Government , Khairatabad, Hyderabad reqrrestir!l thr:m to furnrsh the date of l)ir h of the petitioner as per their adm s;,;iorr records. All these institu [ic per their re,:o rs informed that lhe date of b rth o. I.he petitioner as d:; is 17,09.1959. Even thorigh t1(, p3titioner was given ample ot has not fu rn isi birth. Therefo rortunity to submit his proof of actu. I Cate of birth, he eJ any documents in support of f is; a(:tual date of e the Appointing and Disciplinarv I ur_hority issued a charge memr)/ petitioner a n(J I Even afte L5 statement of d€ No.2 appointec submitting hi:, ' by filing Vt/.P N petitioner to sI weeks from tlte petitioner subtni d,rted 31.08.2019 duly framing chirrr;es against the rovided all the relevant docurnents t(: ^e petitioner, rlays, the petitioner did nct sui)n1it his written 'ence. LeFt with no other alternative, t:he Respondent an Inquiry Officer. The letiti(,r er, instead of /ritten statement of defence, ,lppror(:he,l this Court t.18527 of 2019, wherein, this CoLtf.t (iirected the lnit his written statement of def,:rce within two date of receipt of the said orrJer. l\,:cordingly, the terd his written statement of de,fence (:,n 04.10.2019. Not satisfied w :h the expla nation offered bru Inquiry Officer- r orlducted the enquiry on five prior notic€r to flre petitioner and furnishinc all t.-re documents requested by th€ petitioner. AFter completion o. enqrri,.y, the Inquiry the 1>et tioner, the diffe'etnt spells with .,,* Officer submitted his report vide letter. dated lB.l2.2OLg holding 9 lustice luwadi Sridevi wP No,2(,1s or 2020 /r, that the charges levelled against the petitioner are proved beyond any doubt and by communicating the said enquiry report, the petitioner was directed to submit his objections, if any, to the enquiry report within 15 days. Instead of submitting his objection to the Inquiry Officer's report, the petitioner again approached this Court by filing W.P.No.24t of 2O2O to quash the enquiry report. However, this Court directed the petitioner to submit his objections if any to the enquiry report and further directed the disciplinary authority to pass appropriate orders in accordance with law within a period of four weeks from the date of receipt of copy of the said order. The order copy of W.P.No.241 of 2020 was made available in the website prior to 13.01.2020, the representation of the petitioner, dated 13.Ol.ZO2O was treated as his explanation to the enquiry report and, accordingly final order was passed on 27.0L.2020 imposing penalty of dismissal from service. The objections of the petitic,ner in his representation, dated 13.01.2020, were found devoid of merit. No fresh material or submissions that deserved further consideration by the disciplinary authority were brought on record by the petitioner. The contention of the petitioner that the documents requested by him were not supplied to him is totally false and baseless. In fact, all the documents were already furnished to the petitioner from time to time. Further, reasonable opportunity was afforded to the petitioner 10 lu. tr.c luvvadr S.'devr wP N o.20 r 5 0r 2020 at differen'. p,rir ts oF time to defend his case. []orve"', r, the petitioner fa iled to prove ri:; innocence with regard to th(t tam:t rinq of his date of birth. Th us the petitioner cheated the d,lp.trtrrr(:nt and unduly benefited by ,:o rt nuing in service till his dismis,sal b z .he respondent. Further, with lL availing the alternative rem€'dy o lilirg an appeal before appellat : authority, the petitioner strrighti v,ay approached this Court by fi ng the present writ petition. fhe c., 'rterttions raised on behalf rf th ) petitioner are not tenable, tl- e rel ol sought in this writ petition c ar n )t be'granted and accordingly praye: :i tc, dismtss the writ petition.

6. I har,,e rlir eir thoughtful consideration to thc s-.rl)missions made and meticLrlousl / examined the entire material on r t('orc. The point that arises; f,)r determination in this writ p€itition is 'ryhether the representation, l;rted L3.0L.2020, submitted by the t)etil ioner to the Respondent [\ o. I can be treated as his further defer r;i: slatement, so as to sustain th: impugned proceedings, datec 27.C - 2020 imposing the major gru ri:;hment of dismissal from serv (:e lgainst the petitioner.

7. There is 1o need to reiterate the facts wlr ,.:h are already adverted to lre e nabove. Suffice to say th;rt thr: pel itioner filed W.P.No.24l of .020 before this Court seeking ,l marrcamus declaring enquiry rr-.port dated 18.12.2019 communicat,)cl to him by t 11 Justice luwadi 5r'deva wP No.20l5 0f 2020 Respondent No.2 vide proceedings in Memo No.351B/Admn/A2/2019, dated27.12.201B is perverse, contrary to sub rule (11) (12) (14) and (15) of Rule 20 of TSCS (CC&A) Rules, 1991 and against the sub rule (1) of Rute 2 of G.O.Ms.No.165 Finance and Planning (Fin.Wing. F.R.1) Department, dated 21.01.1984 and sustainable under law, consequently set aside the impugned proceedings No.3518/Admin/A2/2019, dated 27.12.2019. This Court, after adverting to the submissions made by both sides, disposed of the writ petition on 06.01.2020 holding as follows: "This Court, having considered the rival submissions of the learned counsel appearing for the respective parties, is of the considered view that this writ petition can be disposed of directing the petitioner to submit his objections to enquiry officer's report in pursuance to the proceedings dated 27.12.2079. Upon such objections being received, the disciplinary authority shall consider the same and pass appropriate orders in accordance with law within a pertod of four weeks from the date of receipt of a copy of this order. "

8. Pursuant to the order, dated 06.01.2020, the petitioner submitted a representation, dated 13.01.2020 to the Respondent No.2 requesting as follows: "I most humbly submit that on receipt of Inqurry Report communicated to me through the reference 1st cited, I have observed that the Inquiry Omcer has concluded the enquiry abruptly, erroneously and violating the Rules. In this regard I also submit that I have been facing great difficulties and obstacles in submitting my defence statement in view of non providing me the relevant documents by the disciplinary authority, though the supply of relevant documents are mandatory as per Rules. I submit that right from the initiation of drsciplinary case against me I observed that the authorities are constantly adopting irregular and rrrational method against me and avoiding to provide me reasonable opportunity to defend my case, but I have attended the enquirles conducted by the Inquiry officer. I submit that evidently, the Inquiry Officer without following the Rules and that no witnesses examined and no opportunity was given to me to cross examine the wltnesses, concluded the report by violating the statutory rules. Therefore, having no alternative and apprehend that prejudice may cause to me. 12 rIst/cc Juvvadr sndeJi 1/P No-2015 012020 I have Frled Courl fo- t Court to 27 .1,' .2A7\) :hr wflt petrtroner No,241 of 2020 before th. itci'rle llrgh re State of Telangana, Hyderabad, prar'inq :le Hor'ble el aside the l"lemo No.351B/Admn./A2120t I d.ted communicating me the Inquiry report, dated t B 1:1.20 9. I submrt th t as per the rnformation furnished to m.. ll/ tl € :ounsel appe(rrcc b fo-e the Hon'ble High Court, Hyderabad, th,r v\ ) No. 141 of 2010 lras Jr;posed ofthe case by order, dated 06.01.2r120 Ther€for(,, I sLbrr,it that I will submit my further defe,.tcc sta:(Inen to the Irqu ry Orficer's repcrt communicated to me v de rerf,rrr:nce 1,, cited, on re ei )t of the copy of the orders passed by thc Hor i)le l-igh Court, Hlde aLad. in W.P.No.247 af 2020.

9. While thr (ase of the petitioner is that he sp r(:ifically stated in the represe rrt; :irrn, dated 13.01.2020 that he rrr:ulc submit his further defer c< s,taternent to the Inquiry Offi<:er's r fort as soon as he receives t re clpy of the order passed by this Co trt ir W.p.No.241 of 2020, the sti nl of the Government is that inasmt r:h as the copy of the order ,:f ,:h the website ; Court in W.P.No.241 of 2020 was rrad€: available in lf the High Court on 1:i.01.i 0.20 itsetf, the representatio'r / C;rted 13.01.2020 of the petitic)ner v/,:s tr-eated as his further defer ct rtatement and, accordingly, the irrpr.:gned order, dated 27.01.,10 lC was passed. There is a specific :;L bmission in the representatiorl, Jtrted 13.01.2020 that the petitioner rriourd submit his further det.en :e receipt Of ,:otry

2020. It is .tls statement to the Inquiry Offi<;er's -c ooi-t soon after ll the orders passed by this Court n W p.No.241 of r the case of the petitioner that th,: rep,resentation, dated 13.01.,:0. that he receiv( 0 is a provisional one. The pr:titior er- also contends J the copy of the order passed lry this Court in W.P.No.24:. of :C20 on 24.01.2020 and wher he rvr:s preparing to / Josti.e Juvvadi Sridevi wP 0.2015 0f 2()20 submit his further deFence statement, the Respondent No.2 passed the impugned order on 27.01.2020. Rute 20 oF the Rules is so elaborate that the repetition of the whole procedure is unnecessary here. However, it is designed to see that a reasonable opportunity should be given to the delinquent employee before passing any orders against him to prove his innocence. It is trite law that any order passed without affording an opportunity to produce the defence, either oral or documentary, is a perverse order. It would also be in violation .of the principles of natural justice. The disciplinary authority is required to pass final order only after receipt of the defence, if any, by the delinquent officer. In the instant case, the petitioner contends that he received copy of the order passed by this Court in W.P.No.24l of 2020 only on 24.01.2020. When the petitioner specifically submitted that he would submit his further defence statement to the Inquiry Officer's report on receipt of the copy of the order passed by this Court in W.P.No.241 of 2020, the disciplinary authority ought to have waited for some more time enabling the petitioner to submit his further defence statement. Without waiting for the same, the disciplinary authority passed the impugned order, dated 27.01.2020 in a hurried manner. Further, there is a specific direction in the order, dated 06.01.2020 passed by this Court in W.P.No.241 of 2020 to the petitioner to submit his objections to the Inquiry officer's report in pursuance to the _--:r::::--:-E. \ '14 lust.e Juvvadi Sridcwi wP No,2015 oI2O2O proceedings, dt le d 27.12.2O19 and upon srch ttrjections being received, tte d t( iplinary authority should corside' the same and pass appropri. t€ orders, in accordance with law The inte,rtion of this Cou rt in usin g !i e words "upon such object ions b,:in,J received" makes it vivid ly c ear that the disciplinary authority I as to pass an order only aft er Inquiry Officer's convinced with receipt ot the objections of the f et.itioner to the 'eport. Under these circumstances, this rlourt is not the submissions of the responij:rnts that the discip Iina ry auth >rity treated the representation of :he petitioner, dated 13.01.2()2 ) as his further defence staternent artd passed the impugned ord,lr lated 27..01.2020. Thus, t:his (l:rurt is of the /, considered_:hat he impugned order, dated 2-,,.01 i020 passed by s to be considered as an c rder p;:ssed without Respondent No.l considering, or f< r that matter, without receivinrl the fi. rtl er defence statement of the it is in vioraticr re titioner to the Inquiry Officer's rep,>r.- and as such. ,rf the principles of natural justrct,, and hence, unsusta ina ble in t rr: eye of law. Viewed thus, this Co[ r.r- is of the firm opinion that impugned order in proceedings No.351B/AdmslA. /2019, dated 27.0L.2020 is liable to br: sr:t aside.

10. Accordingly the writ petition is allowed. I'.te impugned Proceedings Nc.3 it B/Admn./AZ/2019, dated 27'.01.i0.20 issued by Respondent I"lo.2 s set aside. It is brought to the noti l€r of this Court T 15 Justi.e-ruvvadi Srid.vi wP No.2015 0f 2020 that the petitioner has attained the age of superannuation. In view of setting aside of the dismissal order, dated 27.01.2020, the respondents are directed to process the pension papers of the petitioner and rerease the retirement benefits incruding pension and all consequentiar benefits within a period of six (06) weeks from the date of receipt of copy of this order. Misceilaneous petitions, if any, pending in this writ petition shail stand closed. There shall be no order as to costs. I //TRUE COPY// SD/. P. PADMANABHA ASSISTANT REG ODY TRAR To, SECTION FFICER 1' The Principal Secretary to Govt., Planning Department, state of relanqana BRKR Buitdinss, gth.Ftoor, T"h;sr; S;;[[irt, Hyderabad- soo o22 2. The Director, Directorate E;;;;i;'u'ni's,r,i.,i"r, Gannaka Bhavan, "f Government of Telangana, Khairtabad, iyourJOro _ 5oo 001 . 3. one CC ro SRt. rr,rr" sveo uuiiila;,H;ff, Advocate.[opUC] 4. TwoCCs to Gp FoR SERVtCaS_i, iJid'ffi;forrhe State of Tetangana at Hyderabad. [OUT] 5. Two CD Copies SB,, cJP n!^-- HIGH COURT DATED:07107,2023 ORDER WP.No.2O15 o' '.t-020 t i 1',: .rri1'l liji t ALLOWING TH WITHOUT COS rS = WRIT PET|T|ON -'-a tc) f'\01\ .',7\q\r)