Partly allowed

B Srinivasa Rao v. the Unit Run Canteen National Cadet Corps

Andhra Pradesh HC26 Sept 2022WP/11481/2022

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by the Government Employee against the departmental order dismissing him from service. The Court found the appellate authority violated natural justice by refusing a hearing after a prior stay order. It set aside the dismissal and remanded the matter for a fresh reconsideration complying with the previous directions.

What did the court decide?

The order dated 17.01.2022 and the order dated 16.04.2019 confirming the dismissal are set aside. The matter is remanded to the Appellate Authority for a fresh, speaking order.

B Srinivasa Rao Vs the Unit Run Canteen… — Service and Employment | Andhra Pradesh HC (2022)

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THE HON’BLE DR.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.11481 of 2022

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ORDER:-

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This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:

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…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus, declare the action of the second respondent in dismissing the appeal vide order dated 17.01.2022 and confirming the order of the first respondent dated 16.04.2019 vide Proceedings Rc.Gun/457/C of 1/URC/11 by holding it as illegal, arbitrary, violation of Principles of natural justice and contrary to the order passed by this Hon’ble Court in Writ Petition No.12218 of 2021 dated 05.11.2021 and consequently set aside the order passed by the second respondent dated 17.01.2022 as well as order of the first respondent dated 16.04.2019 vide Proceedings Rc.Gun/457/C of 1/URC/11 and direct the respondents to release all consequential benefits such as continuity of service arrears of pay and allowances gratuity and all other benefits as if he was in service and pass such other orders.”

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Heard Ms. M. Siva Jyothi, learned counsel for the petitioner and Mr. N. Harinath, learned Deputy Solicitor General of India appearing for the respondents.

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The brief case of the petitioner is that while he was working as Manager in the 1^st respondent, a Charge Memo dated 17.01.2019 was issued to him. The petitioner submitted his explanation dated 21.01.2019. An enquiry was conducted,

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basing on the enquiry report dated 17.03.2019, the 1^st respondent issued show-cause notice dated 28.03.2019. The petitioner also submitted his explanation on 08.04.2019 to the 1^st respondent. The 1^st respondent issued proceedings dated 16.04.2019 awarding punishment of dismissal from service. Assailing the same, the petitioner preferred an Appeal to the 2^nd respondent 18.05.2019, which was dismissed on 03.06.2019 by the 2^nd respondent without giving an opportunity of hearing.

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Aggrieved by the said order dated 03.06.2019, the petitioner preferred W.P.No.12218 of 2021 and the same was partly allowed by this Court on 05.11.2021, directing the 2^nd respondent to examine the issues afresh and pass a speaking order on merits by giving an opportunity of hearing. Thereafter, the petitioner has submitted the order of this Court dated 05.11.2021 along with representation and material evidence to the 2^nd respondent. But the 2^nd respondent without following the directions of this Court, dismissed the Appeal on 14.12.2021. The petitioner challenged the same in W.P.No.31239 of 2021. While pending the writ petition, the 2^nd respondent passed the impugned order dated 17.01.2022 and in view of the same, the W.P.No.31239 of 2021 was withdrawn

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with liberty to file writ petition afresh. Therefore the present writ petition came to be filed.

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During hearing learned counsel for the petitioner would contend that the respondents without following the directions of this Court in W.P.No.12218 of 2021, dated 05.11.2021, without considering the issues raised by the petitioner in the Appeal dismissed the same. She further contended that after disposal of the W.P.No.12218 of 2021, the petitioner has submitted the order dated 05.11.2021 and relevant material supporting the averments raised in the Appeal to the Appellate Authority. She further contended that the punishment imposed against the petitioner is not in accordance with Rule 27 of Terms and Conditions of Regular Civilian Employee Unit Run Canteen (URCs) Paid Out of Non Public Fund and the punishment imposed is not in accordance with the above rules and disproportionate to the charges leveled against the petitioner. Therefore the learned counsel contended that the 2^nd respondent without conducting enquiry and hearing the petitioner confirmed the order of the 1^st respondent mechanically, which is illegal and arbitrary and requested to remand the matter to the 2^nd respondent.

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Whereas learned Deputy Solicitor General for the respondents would contend that the respondents followed the procedure stipulated in the guidelines during the enquiry and rightly dismissed the appeal. The petitioner was given ample opportunity by the Enquiry Officer to defend his case. To the show-cause notice issued by the respondents, the petitioner submitted his explanation and the enquiry officer having not satisfied the same, passed the order dismissing the petitioner from service. Therefore, he vehemently opposed to grant relief in favour of the petitioner. Further the respondents have no objection to remand the matter for conducting fresh enquiry.

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This Court perused the impugned order. Therefore it is needless to emphasize that the impugned order passed by the 2^nd respondent is not in terms of the order of this Court in W.P.No.12218 of 2021, dated 05.11.2021. The 2^nd respondent has not considered the issues raised by the petitioner, nor the evidence placed and not given opportunity as directed by this Court.

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8. In Whirlpool Corporation Vs. Registrar of Trade

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Marks, Mumbai and others¹ regarding maintainability of writ

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1 AIR 1999 SC 22 = MANU/SC/0664/1998

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petition in the context of availability of alternative and

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efficacious remedy, the Apex Court held thus:

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14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

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15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied).

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The instant case falls in one of the exceptions carved out

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by the Apex Court, the principles of natural justice is a casualty here.

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Having regard to the facts and circumstances of the case and submissions of the both the counsel, the order passed in the Appeal dated 17.01.2022 by confirming the order of the 1^st respondent dated 16.04.2019 is illegal and arbitrary and same is hereby set aside. Further the matter is remanded to the 2^nd respondent with a direction to reconsider the appeal preferred

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by the petitioner afresh in the light of the order of this Court in W.P.No.12218 of 2021, dated 05.11.2021 and duly considering the material placed by the petitioner and pass appropriate orders strictly in accordance with law, within a period of eight (08) weeks from the date of receipt of a copy of this order.

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With the above direction, the writ petition is disposed of, at the stage of admission. No costs.

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As a sequel, miscellaneous applications pending, if any, shall stand dismissed.

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________________________________ Dr.JUSTICE K. MANMADHA RAO

Date: 26.09.2022.

THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.11481 of 2022

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Date: 26.09.2022

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B Srinivasa Rao v. the Unit Run Canteen National Cadet Corps

Case brief

What is this about?

What did the court decide?

B Srinivasa Rao v. the Unit Run Canteen National Cadet Corps

Case brief

What is this about?

What did the court decide?

What the court decided

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