M. tvlahesh Kumar v. The Person - ln - Charge

in the affidavit filed in support of the petition, the High court may be pleased to direct the respondents to forthwith pass necessary orders regularizing the suspension period by treating the same as on duty pending disposal of Writ Petition. Counsel for the Petitioner: SMT. JYOTHSNA, REPRESENTING SRI R. NAVEEN KUMAR Counsel for the Respondent No.1 & 2: SRI THANTRAWAHI CHANDRA SEKHAR RAO, S.C. FOR AGRICULTURE AND MARKET COMMITTEE Counsel for the Respondent No.3: GP FOR SERVICES-II The Court made the following: ORDER THE HON'BLE SRI JUSTICE PULLA KARTHIK WRIT PETITION No.1 45Ol of2O19 ORDER: This Writ petition, under Article 226 of the Constitution of India, is filed seeking the following relief: "...to issuc an appropriatc Writ, order or direction more particularly one in the nature of Writ of Mandamus by declaring the cntire action and procedure adopted by re respondents for issuing the presert impugned orcler tr{p/ AMC} /EsAftl36 /2OI2 131217. daLcd 20.6.2O17 of the tsrrespondent, wherein imposing the. punishment of stoppage of one arnual grade increment without cumulative effect even rvithout furnishing report of the enquiry officer and without issuing final show cause notice is as highly iltcgal, unsustainable and without jurisdiction and consequently rejecting his appeal by the 2nd respondent, evcn wirhour considering any of Lhe grounds vide Da/p AS2/2Ols d,ated,, 23.4.2019 is as highlt. illegal, arbitrary, unjust, improper, contrary to CCA Rules and consequcntly hold that the peiitioner herein is entitlcd for regularizalion of suspension period by trealing the same as on duty for all the purposes and to pass..."

2. Heard Smt. Jyothsna, Iearned counsel, representing Sri R. Navccn Kumar, learned counsel for the petitioner, Sri Thantrawahi Chandra Sekhar Rao, learned Slalding Counsel for respondent No.1 ar-rd learned Governmcnt preader for Services-Il on behalf of respondent Nos.2 and 3.

3. Learned counscl for the pctitioner submitted that u,hile the petitioner was working as a Supervisor at respondent No. 1 office, he was placed under suspension on 09.07.2015 and a charge memo i t I 2 PK,,J W.P.No 14501 of 2019 dated 09.08.2016 was issued, tor which, he submitted his detailed explanation, denying the charges. However, without considering the samer an enquiry of{icer was appointed to conduct an enquiry. The petitioner appeared before the enquiry officer, but without conducting any enquiry in terms of the procedure laid down undr:r Rule 2O of the Telangana Civil Services (Classihcation, Control anci Appcal) lRuLes, 199 1 , (for short, 'CCA Rules'), he submitted his enqriiry report dated

19.I0.2016. However, without even communicating Lhe said report to thc petitioner and withouL follorving the procedure u;-rcler Rule 21 ol the CCA Rules, the impugned order dated 20.06.2-017, imposing a minor penalty of stoppage of one annual grade increment without cumulative effect, was passed by the Chairman of the respondcnt Committee, who lacks jurisdiction as per Rule 198 ol the Agricullure Market Rules, which empowers the Secretary alonc to impose the said punishment against the petitioner.

4. It was further submitted that the petitioner 1-rlcd a statutory appeal before the Director of Agriculture Market Committee against the order dated 20.06.2017 on 2O.O7.2O17, raising several grounds including that of jurisdiction, but since no action was taken thercon, he lrled W.P.No.2OO32 of 20lS, nhich was disposed oi on 15.06.201B, directing the Director of Agriculture Marketing Committee to pass 3 PK, J W.P.No.14501 of 20l9 hnal orders within a period of eight weeks. However, without considering any of the grounds raised by the petitioner, his appeal was rejecLed vide impugned order dated 23.04.2019, without any grounds, except stating lhat the petitioner had failed to perform his legitimate duties as a mediator. As such, the impugned appellate order is illegal, arbitrary, unjust and contrary to rules.

5. It was contendcd that the Chairman, AgriculLure Marketing Commiltee, despite having no jurisdiction, had failed to follow the proccdure contemplated under Rule 2l of the CCA Rules before passing the punishment order, as the enquiry report was never furnished to the petitioner. Therefore, the very order passed by the Chairman is per se illegal. It was also contended that in furtherance of the notice issued by the enquiry officer, the petitioner appeared before him, but il,iLhout conducting any enquiry, the petitioner was simply asked Lo submit his statement of defense, if any, which he had immediately submitted. Subsequently, the enquiry officer appears to have submitted his report, which was never communicated to the peLitioner for his remarks, and basing on Lhe said enquiry report alone, the petitioner was imposed with the impugned punishment, even \Mithout the issuarce of a show cause notice. However, none of these grounds were considered by respondent No.2 while passing the I 4 PK, .I \L'. P.No.145O I of 2419 impugned rejection order dated 23.04.2019. It was further contended that the respondents also failed to pass any orders, regularizing thc suspension period, and as held by the learned $ingle Judge of this Court in Vinod Kumar u. Executiue Comrnittee oJ Central Warehousing Corporationl, in case of a minor penalty, non- treatment of the suspension period as on-duty, amounts to a major penalty. Therefore, learned counsel lor thc petitiorter prayed this Court to pass necessary orders in the present writ pe(itior-r.

6. On the other hand, learncd Standing Counsel for respondcnt No. 1 submitted that while the petitioner was working as a Supervisor in the ofhce of respondent No. 1, he had disobeyed thc or-ders of the Deputy Superintendent of Police, ACB, and refused to act as a mediator in the surprise check conducted in the chambers of thc Inspector of Police, Women Police Station, Saroornagar, Hyderabad. Due to the reluctance of the pctitioner, the enquiry process of the ACB authorities was delayed. Thereafter, the Director General, AC[3, had addressed a letter to respondent No.2, dalr:d 30.05.2016, wherein, it was requested to take necessary action ngarnst the petitioner, who refused to perform his lcgitimate du ties. Pursuant thereto, respondent No.2, vide Memo dated 06.06.201 5, called for arr \ 2OO7 (5) ALD 445 i 5 PK, J W.P.No.14501 of 2019 explanation from the petitioner as to why disciplinary action shall not be initiated against him for the said rapse. In response, the petitioner submitted his cxplanation on 10.06.2O 15, stating that he was not aware of the rule position of the ACB ana tfre Government Memo dated 29 .12.1967 . He further stated that he had not wi[fully disobeyed the orders of the ACB authorities to act as a mediator. However, the explanation of the petitioner was unconvincing, and thus, at the instance of respondent No.2, respondent No.1 had ptaced the petitioner under suspension on Og.02.2015, pending further enquiry in the mattcr. However, pursuant to the interim orders of the erstwhile Andhra Pradesh Administrative Tribuna,l dated 29.or.2016 in O.A.No. 112 of 2016, the pctitioner was reinstated into service, pending disciplinary action, vide proceedings d.ated, 2l .06 .2O76. Subsequently, a charge memo datecl 09.0g.2016 was issued, for which, the petitioner submitted his explalation, denying the charge. However, as the explanation of the petitioner was once again found to be unsatisfactory, an enquiry ofhcer was appointed. After conducting an enquiry, the enquiry ofhcer submitted his report [o the Selection Grade Secretary, Agricultural Market Committee, Gaddiannaram, observing, "Sri M. Mahesh Kumar, Superuisor, AMC, Godi-iannaram committed the mistake bg not obeging the orders of ACB officials bg not 6 PK. J t'!.P.No.14501 of 2019 knotuing the knouledge in preparation of panchanairct and he refused. to sign on panchonama tuiltfullg.', Therefore, responderrt No. 1, i.e., thc Chairman, who is the competent authority to appoint and promote the employees up to the cadre of supervisor as per Iiule 179 of the 'lelangana Market Rules, 1969, has rightly imposed a minor penalty of stoppage of one annual grade increment without cumulative effect vide order dated 20.O6.201 7, which was also righ y conhrmed in thc appeal filed by the petitioner vide order dated 23.O4.21r 19. Thercforc, it was submitted that thcre are no merits in the cllse, and thus, prayed this CourL to dismiss thc present writ peLition.

7. Learned Government pleadcr appearing on behali.of respondcnt Nos.2 and 3 submitted that respondent No. 1, Lreing Lhe competent authority, has issued the charge memo dated O9.08.2O 16 lor the mistake committed by the petitioner, and later an enquiry was conclucted against the petitroner. Based on the said cnquiry report, as respondent No. 1, who is the competent authority, had imposed a mrnor penalty o[ stoppagc of one annual gradc incrcment w-itr-rout cumulative effect, which was also confirmetl by rhc appellate authority vide order dated 23.04.2019. As such, the a uthorities are justified in imposing the impugned punishment for the proven t .--. .-.-..- -,*tt* 7 PK, J W.P.No.14501 of 2019 misconduct of disobeying the orders of the ACB authorities. Therefore, it was prayed to dismiss the present writ petition.

8. This Court has taken note o[ thc rival submissions made by the learned counsel for the respective parties ald perused the records.

9. Admittedly, while the petitioner was working as a Supervisor in the ofhcc of respondent No.1, based on a letter lrom the Deputy Superintendent of Police, Anti-Corruption Bureau dated O2.05.2015 and the Director General of Anti-Corruption Bureau dated

30.05.2015, respondent No. I issued a charge memo vide proceedings No.Estt. / 36 / 2Ol2-13 /347 dated 09.08.2016, framing the following cha rge: "Sri.M-Mahesh Kumar, Supervisor, Agricultural Market Committee, Gaddiannaram has bcen deputed as mediaLor with instructions to report before Deputy Superintendent of Police, Anti Cormption Bureau, Telangana, Hyderabad and requested to act as mediators in the process of enquiry. But, he has not obeyed and violated the instructions of DSP(CIU),ACB, Hyderabad and refused to act as a mediator by saying that he does not want to act as a mediator and even he does not want to sign on mediator report."

10. In response to the charge memo, the petitioner submitted his explanation, stating that he does not possess the requisite skill and knowledge to prepare a panchanama. Despite this explanation, respondent No.1 pfoceeded with a departmental enquiry against the 8 PK, J W.P. No.145a 1 of 2019 petitioner, resulting in the imposition of a minor pelralty of stoppagc of one annual grade increment without cumulative effecL vide impugned orde r dated 20.06.2017 , besides treating the petitioner,s suspension period as leave, as per his eligibility; for regularization of his service. 1 i. The peLitioner challenged the impugned order on verrious grounds, primarily contending that respondent No. 1, Chairman, lacked jurisdiction to impose the pcnalty; secondly, 1_hat respondent No. 1 failcd to follou. the procedure under Rule 2 1 of the Tclangana Civil Services (Classrficatron, Control and Appeat) Rule s, 1991, before passing the impugned order; and lastly, that the punishmenL was imposed without furnishing the enquiry report to the pctiLioner, thereby, violating the principles of natural justice.

12. For better appreciation of the case on hand, it is relcvant to refer to the Telangana Agriculture Market Rules, 1969. As can bc seen from thc Table annexed to Rule 1g0, the post of Supervisor is classihed as a 'Category-3 post,. Rule 19g specifies the competent penalty imposing authorities and the appellate authorities, and the relevant portion of the sairl Rule is cxtracted hereunder: & 9 PK, J W.P.No.145O1 of 2O19 "198. Authority to impose penalties and appellate authorities:-- l(2)] The authorities competent to impose the penalties specified rn Rule 197 or suspension pending enquiry into grave charges under sub-rule (5) of Rule 200 on a member of the service and the appellate authorities shall be as shown in the following Table." Sl. No Kinds of penalties under different clauses of Rule 197 3 Withholding of increments or promotion under Clause (iii) Categories Ito lO, 15&16 Penalising Appellate authority authority Secretary Market Committee

13. ll is unequivocally clear from the above Rule that the power to impose the punishment of withholding of increment upon the petitioner, who is working as a Supervisor, is solely vested with the Secretary of the Marketing Committee, but not thc Chairman. As can be scen from lhe impugned order dated 20.06.2017, it was passed by the Chairman, Agricultural Market Committee, Gaddiannaram, and is therefore, vitiated by lack ofjurisdiction. Hence, this Court is of the vieu, that the reliance of the respondents on Rule 179 to justify the authority of Chairman to impose the impugned punishment on the petitioner is misplaced and unfounded. Therefore, the impugned order is liable to be sct asidc on this ground alone. i4. The petitioner further contendcd that the cnquiry report was ncither furnished to him nor was any show-cause notice issued, 10 PR, J \\'.P.Na. 1 4 :;0 1 of 2A19 before the imposition of impugned punishment. Rule 21 of the Telanganar Civil Scrvices (Classification, Control and Appeal) Ru1es, 1991, mandates that the disciplinary authority shall provide a copy ol the enquiry rcporl. to thc delinquent and an opportur-rity, for submission of l-ris cxplalation, if any. However, the respondents lailed to producc an_v documentary evidence to prove :hat the enquiry report was furnishcd to the pctitioner. Thereforc, this Court is of thc view that the prcscnt impugncd punishmcnl order is rrnsustainable in the eye of law.

15. Further. insofar as the other claim of the petitr,)ner \r,ith rcgard to the treatmenl of suspension period as '1eave' is concerncd, it is relevant to refer to the decision of this Court in A.V. Vinod. Kutnar (supra), rvherein, it was catcgorically heLd that l-he treatment ol suspension period as not on duty, r,.,hilc imurtsing a rnint.,r- punishmcnt in t he disciplinary proceedings, amounts to imposition of a major punisl-iment. The relevant portion of the said dccision is extractcd hereundcr: "18. Ho\\cvcr. I am in full agreement with the submissions madc by Sri G. Ramachander Rao, learned Counsel for the r.spondcnts that the disciplinary authority has all the power to rrnpose any punishmcnt in the facts and circumstances of the case. Thc power of thc disciplinary aLrthority is not in dispute, but the questior-r lhat arises for consideration is that wheLher, whrle imposing minor pcnalty of censure, the disciplinan authority 11 PK, J W.P.No 145O1 of 2019 could have treated the penod of suspension as .not on duty, and further, held that the petition is not entitled for any amount over and above what was paid towards subsistence allowance. Censure is a minor punishment something like a warning to be in future. ln fact, in the Order dated 24-12-1991, it was stated that a lenient view in the matter was taken to afford an opportunity to the petitioner to improve his behaviour and to be careful in his work in luture. While holding so, trcating the period of suspension as ,not on duty', cannot be said to have been done in good faith and good conscience. The censure itself is a punishment of a minor nature. To treat the period of suspension as not on duty is a severe punishment, by rvhich the petitioner is denied continuity of service for the purpose of seniority, promotion etc. Therefore, though the disciplinary authority has got power, such power, in this case, was not exercised reasonably and no reasonable person could have treated the period of suspension as not on duty lr.hite imposing the minor punishment of Censure. 19. Under those circumstances, I am of the opinion that treating the period of suspension as not on duty, rvhile imposing a punishment of censure in the disciplinary proceedings, will lead to imposing a major punishment. As such, the action o[ the disciplinary authority in treating the period of suspension as not on duty rs unreasonable and against good conscience. There[ore, that portion of the order dated 24-12-1991 treating the period of suspcnsion (about 18 months) as not on duty, as confirmed by the appellate authority, is liable to be set aside and are accordingly set aside. Now the Order dated 24-12 l99l as conflrmed bv the appettate authority on 3-8-1995 shalt be read as "that the ;eriod of suspension will count as period spent on duty for all purposes including increnrents, seniority, promotion etc." [.lowevcr, the order denying payment of anlrthing over and above the subsistence allowance granted for the period of suspension shall stand conhrmed along rvith punishment of censure_" I I

16. From the above, it is clear that the treatment of the petitioner,s suspension pcriod as 'leave', while impbsing a minor penalty of stoppage of one increment without cumulative effect, tantamount to a major penalty. Therfore, this Court is of the view that the petitioner is entitled for regularization of suspension period as ,on duty, for all purposes. { 12 PK, J P.No.14501 of 2019

17. In light of the foregoing discussion, this Court is of the considered vierv that thc impugned punishment order dated

20.06.201,7 and the order in appcal dated 23.04eol() are both liable to be sct aside.

18. Accordingly, the Writ Petition is allowed setting aside the impugned order vide proceedings No.AMCG/Estt.36l2OI2-13 l2l7 dated 20.06.2017 issued by respondent No. 1, and the order passed by the appellate authority, i.e., respondent No.2, r,icle proceedings No.DC/P-852l20 15 dated 23.O4.2O 19. Miscellancous applications, if any, pending in Lhis writ petition, shall sland closed. No costs That Rule Nisi has been made absolute as above. Witness the HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL, on this Thursday, the Nineteenth Day of June Two Thousand and Twenty Five. SD/-P. PONNA KRISHNA ASSISTANT REGISTRAR . ,:1 //TRUE COPY// 1-, t - -' SECTION OFFICER To, '1. The Person - ln - Charge, Agriculture and Market Committee, Gaddiannaram Hyderabad.

2. The Director of Agricultural lt/arketing, State of Telangana, Hyderabad. 3. The Principal Secretary, Agriculture Marketing Department, State of Telangana, Secretariat Buildings, Hyderabad.

4. One CC to SRI R. NAVEEN KUMAR, Advocate [OPUC] 5 One CC to SRI THANTRAWAHI CHANDRA SEKHAR RAO, S C for Agriculture and Market Committee [OPUC]

6. Two CCs to GP for Services-ll, High Court for the State of Telangana at Hyderabad. [OUT]

7. Two CD Copies I HIGH COURT DATED:1910612025 \) .-) . ':i\ I I \l !. iiE- S74 l.t 2 g llJ.'l ?[25 r..i'--. ORDER :.. 5) I I ,; WP.No.14501 of 2019 ALLOWING THE WRIT PETITION WITHOUT COSTS Lc