P.V. PURUSHOTTAIV RAO v. I Vice President

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHU/AR RAO WRIT PETITION No.16795 oF 2Oo9 ORDER: This Writ Petition is filed questioning the order dated 08.06.2009 passed by the 3.d respondent, u,ho confirmed the order dated

16.03.2009 passed by the 2nd respondent as u,ell as the order dated

22.09.2008 and Corrigendum dated O7.11.2OO8 passed b\: the ls' respondent.

2. Heard Sri Sundareshan, learned counsel representing Sri P.Govind Reddy, learned counsel appearing for the petitioner and Sri A.K.Jaya Prakash Rao, learned Standing counsel appearing for the respondents.

3. Brief facts of the case are as follows :- (a) The petitioner was initially appointed as a Computer Operator in the respondent Corporation on 11.08.1997 and thereafter, he was posted at the Accounts Division of Hotel Samrat, New Delhi and worked till May,2OO1. On 15.05.2001, he was transferred and posted at ITDC Duty Free Shop, Hyderabad Airport, Hyderabad, on permanent basis. The petitioner discharged his duties to the satisfaction of his superiors at Hotel Samrat and there was no complaint whatsoever against him. 2 (b) While so, on 05.04.2006, the Prohibition and Excise Police, Balanagar, registered a case in Crime No.4/06 07 for the offence punishable rtnder Section 8 (b) (ii) r/w Rule IV and VII of A.P.Prohibition .Act. 1955 against A-I to A 7, u'herein the petitioner uas arrayed:rs,{ 5. In view of the registration of the said case, the 1st respondent pl:lced the petitioner trnder suspension by order, dated

08.04.2006. (luestioning the said suspension ot'der, the petitioner iiled W.P.No.1l'857 of 2006 and this Court suspencted the order. rlated

08.04 2006 vide W.P.M.P.No.22397 of 2O06 in W-P.No.17857 of 2OO6 dated 06.O2.2()07, and thereafter, the petitioner u,as reinstated into servlce. (c) After completion of the investigation, the Excise authorities filed a charge sheet before the learned Special Judicial First Class Magistrate for Prohibition and Excise Cases, Ranga Reddy Drstrict, only against A.1 to A-5, and the narnes of A-6 and A-7 were deleted. Questioning the said action, the petitioner filed W.P.No.18067 of 2OO7 before this Cor.rrt. This Court by order, dated 19.04.2OO8, granted stay of all further proceedings in C.C.No.l74 of 2OO7. (d) Tht:reafter, the lst respondent issued Memorandum to the petitioner on 27.O2.2OO7 and ordered for an enquiry. After completion of the enquiry, the Presenting Officer filed his written brief on

27.03.2008, to which the petitioner filed his reply on 17.C4.2008. The ./ -) 3 Enquiry Officer submitted his report on 25.O5.2O08, to which the petitioner submitted his explanation on 28.07.2OO8. Not satisfied u ith the explanation submitted by the petitioner, the 1"t respondent passed order, dated 22.O9.2OO8, imposing the penalty of stoppage of two annual grade increments with cumulative effect along with recovery of an amount of Rs.38,226/- towards loss to the Corporation and Rs.25,0OO/- towards Customs Duty and Penalty. Thereafter, the lsr respondent issued a Corrigendum on 07.11.2OO8 tn respect of the penalty mentioned at Para 2 page 2 of order, dated 22.09.2008 (e) Aggrieved by the said order and Corrigendum, the petitioner preferred an appeal before the lncl p65p6ndsnt, and the same was dismissed by order, dated 16.03.2009. Thereafter, the petitioner also preferred a revision before the 3.d respondent arrd the same u'as also dismissed on 08.O6.2009. Aggrieved thereby, the petitioner lilcd the present rvrit petition.

4. Lcarned counsel appearing for the petitioner submits that tl're Enquiry Officer, a-fter conducting an eiaborate enquiry, held that the Management failed to establish both the charges levelled against the petitioner. Though the Enquiry Oflicer exonerated the petitroner from both the charges, however held that he is partially responsible for taking the goods outside the D.F.S. Shop at Hyderabad Airport. The petitioner submitted a detailed explanation to the show cause notice 4 on 28.07.2OO8. The 1"t respondent passed order, dated 22.09.2OO8, as well as Corrigendum dated 07.11.2008, without adverting to the contents of the petitioner's explanation. Therefore, the orders passed by the l.t respondent, as confirmed by respondents 2 and 3, are illegal and arbitrary.

5. Learned counsel appearing for the petitioner further submits that no charge ivas framed against the petitioner for recovery of the amount of Rs.38,226 l- and Rs.25,000/- and no enquiry was conducted. Therefore, the penalty of recovery of the said amount is grossl-v illegal and arbitrary. Further, the penalty of stoppage of two anntral increments with cumulative effect is totally disproportionate to the charges levelled against the petitioner.

6. Learned counsel appearing for the petitioner further submits that respondent Nos.2 and 3 without considering the contentions advanced by the petitioner erroneously confrrmed the orders passed by the 1"t respondent. Therefore, appropriate orders be passed in the writ petition b_r' setting aside the impugned orders and allow the writ petition. 7 . The respondents filed a counter affidavit stating as follows :- (a) The petitioner has joined in the respondent Corporation as a Computer Operator in New Delhi and subsequently transferred to Hyderabad to u,ork in Duty Free Shop of the respondent Corporation 5 situated at Rajiv Gandhi International furport, Begumpet, Hyderabad. The duty free shop of the respondent is established to sell foreign goods and foreign liquor for the foreigners, who are travelling through Hyderabad. In duty lree shop of Hyderabad, there was hardly al-r' ',r,ork of the computer. The petitioner was entrusted additional duties of attending to counter sales in various shifts. At the time of reporting to the duty, the petitioner has to verify the stock position and handover the same to others while he is reliving from his duties after completion of his shift. (b) On O5.04.2OO6, at about 09.45 p.m., in front of the Begumpet ICICI Bank, one Mr.Srikanth (Trainee Sales Assistant), Mr.Rama Swamy (Daily Casual Worker) and Mr.Md.Ghouse (Auto Driver) were red-handedly caught hold by the Prohibition and Excise Inspector, Balanagar, when they were unauthorisedly in possession of 48 liquor bottles of various brands. On interrogation, the said persons disclosed that they have collected liquor bottles of various brands from the petitioner herein and Mr.G.Pavan, a Trainee Sales Assistant of the respondent Corporation. On the basis of the information given by the above said persons, the Prohibition and Excise Officials caught hold the petitioner and Mr.G.Pavan at Begumpet Fly over bridge in front of M/s.Bottles and Chimney Restaurant and Bar and searched the gunny bag, which is in possession of the petitioner. At that time, the Excise Officials foutd 24 tins of Tiger Beer each 330m1 and Johny 6 Walker Gold I-abeled Whisky of 750 ml with the petitioner and the petitioner'*,as caught red handed with such material. (c) The petitioner, in order to save his skin, falsely implicated one Mr.Venkzrta Ramana, Sales Supervisor ald Ms.Kala Dacha, Manager, Dut1, Free Shop. The Excise Officials df Balanagar registered Cr.No. 4973/2006 ICPEIG 1, dated 25.O4.2006, against the petitioner and others. (d) Mr.T.Srikalth ald Mr.G.Pavan, who n,ere co-accused in the above said case, \ /ere removed from service, since they were only Trainee Sales Assistants and one Mr.Rama Swamy, another co-accused, d:ril1, w,ages scavenger, was also removed from the service of the respondent Corporation. (e) Alter registering the case by the Excise Officials, the Vigilance Oflicrals of the respondent Corporation made an enquiry and found that Ms.Kala Dacha, Manager, on duty, as established from circumstantial and oral evidence, is not found directly or indirectly connected with the said offence of stealing of liquor bottles from Duty Free Shop and selling in the open market. The allegations made by the petitioner has not been established and that the petitioner himself in his cross-examination before the Vigilance Officials deposed that he never made any statement in respect of Ms.Kala Dacha Manager, and 7 Mr. Venkat Ramana, Sales Supervisor, Dtrty Free Shop, as such, no action was initiated against them. (0 The petitioner was in-charge of the stock in the duty free shop at the time of the incident and the keys of the godown were also with the petitioner arrd he has accepted the same in the enquiry. (g) The Excise officials, after completion of the investigation, filed charge sheet and found that though the names of Mr. Venkat Ramana, (4-6) and Ms. Kala Dacha, (A-7) were included as per the statement of the petitioner, at the time of registering the case, but in the course of investigation, no suflicient evidence u,as found / established against A-6 and A-7 to charge them lor unauthorized transport and illegal possession of foreign liquor and therefore, their names were deleted from the charge-sheet. (h) Since the act of the petitioner is grave and serious in nature, the respondent issued a charge sheet to the petitioner vide charge sheet No. 145-ClHR/DISC/ITDC/O6, dated 27.O2.2OO7 and requested the petitioner to submit his explanation for the charges levelled against him. The petitioner in his explanation has simply denied the charges levelled against him. The explanation submitted by the petitioner is not satisfactory and the respondent Corporation has decided to conduct an enquiry into the charges levelled against the petitioner. Accordingly, the respondent appointed one Mr.A.M.Tewari, 8 as an Enquirv Olficer and Mr.Ashok Lamba, as a Ptesenting Officer to conduct the departmental enquiry against th c petitioner. The petitioner has not flled anv valid document to p:-ove his innocence against the <:harges levelled against him. The petitioner himself admitted in the enquiry that the keys of the godown were in hrs custody at the time of the incident i.e. 05.04.2006 (i) Aftcr completion ol the enquiry, thr: Enquiry Officer submitted his report stating that the charges lt:velled against the petitioner in Article I is partialll, proved and tl-re charges levelled against the pt:tilioner in Article [[ are not proved and concluded his lindings as folloq,s: "It cannol happened Luithout express or implied consent of tle person, utho uas lnlding the keys of DFS slnp. Therefore the CO is considczred partially responsible that on 05.04.06 without help of other staJf he committed breach of trust and permitted DFS liquor to go outside of DFS Shop. Therefore, the onlA charge Article 1 is considered partiallg proued rest of tLuz charges are not proued. It is submitted though the charges leuelled against the petiti<>ner u.tere portiallg proued but the petitiorrcr he himself admitted i.n the enquiry that the kegs of tLrc DFS tuere uLith him on the date of incident i.e., 05.04.2OO6.1t is submitted though the petitioner admitted his negligence on hi,s duty, and tlrc respondent hos losf confrd.ence on the dedicatiorr of the work" and on th.e dutg of the petitioner, but the respondent has takert a sAmpathetic uiew on the petitioner and his employment, consideing all aspects like past record of the petitioner, present unemployment conditions in society, social -stofus of the 9 petitioner in the societg tLe respondent has imposed a minor punishment to the petitioner, i.e., STOPAGE OF TWO INCREMENTS WITH CUMIJLATM EFFECT along with the recouery of Rs. 38,226/ -. The amounf o/ loss caused to the corporation to tLrc petitioner because of his negligence on duty, further an amoutl.t of Rs.25OO0/' the temporary penalty presentlg tmposed bg the customs and Excise autlnities and further penalty if ang which is to be imposed by the Customs and Excise Ofjlcials depending up on their decision. "

8. The petitioner \vas given copy ol the inquiry report dated

25.05.2008, to which the petitioner submitted his explanation on

28.07.2OO8. Not satisfied r.r.ith the explanation submitted by the petitioner, the I't respondent imposed the minor penalty against the petitioner and the same was also conlirmed by respondent Nos.2 and

3. Challenging the order passed by the 3.d respondent, the petitioner filed the present writ petition.

9. Learned Standing Counsel appearing for the respondents submits that the contention ol the petitioner that the Inquiry Authority has exonerated the petitioner completely from the charges levelled against him is faise. The Inquiry Authority has not exonerated the petitioner and held that the petitioner 1S partially responsible for charge contained in Article 1. The Inquiry Authority has partialiy proved the charge leveled against the petitioner on the basis of \ 10 documents an d $'itnesses in the disciplinary case and therefore, the same is legirllv sustainable.

10. Learned Standing Counsel appearing for the respondents submits thilt it is lalse to state that no charge '"vas lramed against the petitioner for recovery of the amount. A perusal of the major penalty charge-sheet No.1a5lHR/DISC/ITDC/06, dated )7.O2.07, discloses the description of stolen goods b1' the petitioner along u'ith quantity. Therefore, pcrraltl ol recovery of loss has been i:rposed as per the value of the items stoien by the petitioner, as the same r,r,as duly proved in the inquiry report. Therefore, the imposition of penalty of reco\ierv o1' tlre arnount by the l"t respondent vide Order dated

22.09.2OO8 is legal and valid. The said incident was happened u'hen the keys ef 1fi,. godown were in the custody of the petitioner and the petitioner aloi:Le is responsible. Therefore, the l:;r respondent rightly passed the order dated 22.O9 .2OOq and Corrigendum dated

07.ll.2OO8 and the sarne was a-lso confirmed by respondcnt Nos.2 and

3. Therefore, the n,rit petition is devoid of merits ancl the same is liable to be dismisse<l . 1 1. Learned ,:ounsel appearing for the petitioner llled a reply stating that no charge is lramed against the petitionerwith regard to the financial loss :rlleged to have been caused to the Corporation and the allegations mzrde by the respondents are baselt:ss and incorrect. I Therefore, appropriate orders be passed in the writ petition by setting aside the impugned orders ald allorv the writ petition. 11

12. On 17.O8.2OO9, this Court while admitting the writ petition, gralted stay of recovery of the amount, until further orders.

13. This Court, having considered the rival submissions made by the learned counsel for the respective parties, is of the considered view that the 1"t respondent issued Memorandum dated 27.02.2007 to the petitioner framing two charges against the petitioner. As discussed above, the Management has partially proved the charge levelled against the petitioner in respect ol Article I and it has not proved the charge levelled against the petitioner in respect of Article-ll. In the Enquiry report, it was observed that a,ll the documentary and circumstantial evidence produced by the Management disproves the Management story and both the charges as mentioned in Article-I and Article-ll could not be proved by the Management. Once the Management itself has not proved the charges levelled against the petitioner, the question of imposing of major penalty does not arise. In the instant case, it cannot be said that there is no involvement of the petitioner. According to the petitioner, his role is very limited in the entire episode, but he cannot escape from the entire punishment. Therefore, the imposition of penalty of stoppage of two annual grade increments with cumulative effect is a major penalty and it is highly L2 excessive and disproportionate. However, the respondent authorities stated that the said punishment is a minor punishment. But, the said contention is not correct, as the imposition of the said penalty is a major penaltr''. Respondent Nos.2 and 3 without considering the contentions raised by the petitioner confirmed the order passed by the 1$ respondent. Respondent Nos.2 and 3 ought to have modified the punishment imposed against the petitioner.

14. With the above said observation, imposing the punishment of stoppage of tu'o annual grade increments with cumulative effect is highl1' excessive arld disproportionate and the same is liable to be modified.

15. Therefore, the punishment of stoppage of two annual grade increments u.itlt cumulative effect vide proceedings dated 22.09.2OO8 and Corrigend.um dated 07.11.2008, is modilied to that of stoppage of two alnual grade increments without cumulative effect.

16. Insofar as the recovery of amount ol Rs.38,226/- and Rs.25,OO0/- is concerned, major penalty charge-sheet No.1a5/HR/DISC/ITDC/06, dated 27.O2.2OO7, discloses the description of stolen goods by the petitioner along with qualtity. Therefore, penalty of recovery of loss has been imposed as per the value of the items stolen by the petitioner, as the same was duly 13 proved in the inquiry report. Therefore, the imposition of penalqr of recovery ol the said amount by the l"' respondent holds good.

17. Accordingly, the writ petition is disposed of. No order as to costs. Miscellaneous petitions, il a'r1', pending in this Writ petition, shall stand ciosed. SD/. R. KARTHIKEYAN JOINT RE ISTRAR //TRUE COPY// SECT OFFICER / To,

1. Vice President, (AITD), India Tourism Development Corporation Limited, Scope Complex, 7 Lodhi Road, New Delhi -1 10003. 2- Director (Finance), lndia Tourism Development Corporation Limited, Scope Complex, 7 Lodhi Road, New Delhi -110003. Limited, Scope Complex, 7 Lodhi Road, New Delhi -1 10003.

3. Chairman and Managing Director, lndia Tourism Development Corporation 4. One CC to SRI P. GOVIND REDDY, Advocate IOPUC] 5. One CC to SRI A.K. JAYAPRAKASH RAO, SC FOR ITDCL IOPUC] 6. Two CD Copies BN PVL w HIGH COURT DATED:111'1112025 l i',E o ii[\J ?trfi ORDER -!: WP.No.167'95 of 2009 DISPOSING OF THE WRIT PETITION WITHOUT COSTS @ \X