Dismissed

Rep by Its Managing Director (Fac) v. the Ap Vikalangula Co. Operative Corporation

Andhra Pradesh HC5 Aug 2024WA/392/2024

Case brief

AI extract

What is this about?

This Writ Appeal challenged the Single Judge's order setting aside the petitioner's removal from service as illegal due to procedural lapses. The High Court observed that the non-supply of the enquiry report and inappropriate framing of charges prejudiced the employee, but noted the Single Judge's order confirmed that these procedural defects occurred.

What did the court decide?

The Writ Appeal is dismissed. No order as to costs. Pending interlocutory applications shall stand closed.

Rep by Its Managing Director (Fac) Vs the Ap… — Service and Employment | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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TUESDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE SRI JUSTICE G.NARENDAR - AND

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THE HON’BLE SMT. JUSTICE KIRANMAYEE MANDAVA ^

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WRIT APPEAL NO: 392 OF 2024

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Writ Appeal under clause 15 of the Letters Patent preferred against the Judgment dated. 14.03.2024 in W.P.No. 39697 of 2012 on the file of the High Court.

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Between:

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Rep By Its Managing Director (FAC), The A.P. Vikalangula C-operative Corporation, Ground and 2nd Floor, B. R. K. R. Buildings,^TankBundRoad Saifabad,Near Secretariat, Hyderabad- 500063. ...APPELLANT/RESPONDENT No.2 AND 1. The A.P. Vikalangula Co Operative Corporation, Ground and 2"^^ Floor, B. R. K. R. Buildings, Tank Bund Road, Saifabad, Near Secretariat Hyderabad- 500063.

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...APPELLANT/RESPONDENT No.2 AND

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The District Manager, The A.P. Vikalangula C-operative Corporation, R C D Hospital Campus, Pedda Waltair, Visakhapatnam-17.

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...RESPONDENTS/RESPONDENTS-

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L Guru Murthy, S/o Late L Yenda Rao, Aged about 40 years, Occ Helper (Under Removal), R/o. H. No.1-20-14, Adarshnagar,^Pedda Waltair, G.V.M.C Mandal, Visakhapatnam District-530017.

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...RESPONDENT/WRIT PETITIONER

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lA NO: 2 OF 2024

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to Stay the Operation of Judgment, Dated. 14.03.2024 in W.P._

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No.39697 of 2012 passed by the learned Single Judge,^{pendingdisposalof} the main Writ Appeal.

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Counsel for the Appellant: SRI SUDHIR MATTEGUNTA, Counsel for the Respondent Nos.1 & 2 : NONE APPEARED

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Counsel for the Respondent No.3: SRI V. SUDHAKAR REDDY

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The Court made the following: JUDGMENT

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THE HONOURABLE SRI JUSTICE G.NARENDAR

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THE HONOURABLE SMT. JUSTICE KIRANMAYEE MANDAVA

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WRIT APPEAL NO: 392 of 2024

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JUDGMENT: (per Hon’ble Smt. Justice Kiranmayee Mandava)

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The petitioner was appointed as a helper on consolidated^payof Rs.700/- per month. He was initially posted in a residential school vide proceedings dated 17.01.1991. Thereafter, he was transferred and posted as helper in the existing vacancy of the 3'^'^ respondent^{office.Hispayscale} was fixed by the 2 nd respondent vide proceedings dated 20.12.1994. Thereafter, revised pay scales were made applicable^{tothepetitioner.} 2. The 3rd respondent vide proceedings dated 27.03.2010^required the petitioner to submit his proof of age. In compliance,^{thepetitionerhas} submitted a School Leaving Certificate, issued by the^{schoolHeadMaster,} disclosing the date of birth as 10.03.1972. According^{totherespondents,on} their internal enquiry, the certificate produced by^{thepetitionerwasfoundto} be bogus and fictitious. Disciplinary action was initiated^{againstthepetitioner} by framing the following charges:

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'STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST

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SRI L.GURU MURTHY. HELPER(NT)

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ARTICLE OF CHARGE: That Sri L.Guru Murthy Helper (NT) office of the District Manager APVCC Visakhapatnam has submitted faise School Transfer Certificate and get employment In APVCC.

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BASIS OF CHARGE

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Sri L.Guru Murthy Helper (NT) office of the District Manager APVCC Visakhapatnam has submitted false School Transfer certificate and get employment In APVCC.

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Thus the behavior of Sri L.Guru Murthy Helper (NT)^{officeof.theDistrict} Manager APVCC Visakhapatnam is unbecoming on the part of a Corporation employee and warrants severe action. Hence the charge.”

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Pursuant to the same, an enquiry officer was appointed and enquiry was conducted into the charges. The enquiry^{officerhassubmitted} the report. As per the enquiry report, the School Leaving Certificate produced by the petitioner was found to be not genuine. Basing on the report of the enquiry officer, the petitioner was removed from service. Challenging the same, the subject writ petition was filed contending that, before the imposition of the punishment of removal from service, no show cause notice was issued, and no opportunity was given to the petitioner to rebut the allegations. His further contention was that no individual was examined before arriving at a finding that the certificate produced by the petitioner was bogus.

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The respondents contended that due procedure was followed while passing the order of removal from service. The petitioner was removed

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from service since he cheated the corporation in getting employed, on the basis of a false, fake School Leaving Certificate.

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The learned single Judge set aside the order of removal^from service observing that the disciplinary authority did^{notfollowtheprocedure} for removal of an employee from service. In as much^{asnoenquiryreportwas} furnished to the petitioner and no show cause notice^was issued to the petitioner before passing the order of removal from^{service.Thelearnedsingle} Judge accordingly set aside the order of removal from^{serviceholdingthe} same as illegal and the learned Judge further observed^{thatthepetitioneris} entitled to be reinstated with all consequential benefits^{including backwages.}

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Assailing the same the writ appeal. 7. Heard the submissions of Sri Sudhir Mattegunta, learned^counsel for the appellant and Sri V.Sudhakar Reddy, learned counsel for the respondents.

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The learned counsel for the appellant contend that^nonsupplyof the enquiry report would not vitiate the proceedings^{unlessthenonsupply,}

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causes prejudice to the delinquent employee. The learned counsel^insupport of his contention relied on the following decisions;

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i) The decision of the Hon’ble Supreme Court in the case^ofSarva 1 Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha

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(2010) 3 see 556

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ii) The decision of the Hon’ble Supreme Court in the case^ofBurdwan Central Cooperative Bank Limited and another Vs. Asim Chatterjee and others^

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iii) The decision of the Hon’ble Supreme Court in the case^ofUnionof

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India and others /s. Bishamber Das Dogra^

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As noted from the impugned proceedings in the writ petition, the disciplinary proceedings were initiated against the writ petitioner basing on a letter stated to have been issued by the school that the petitioner had not studied in their school. The articles of charges framed against the petitioner are that the petitioner has cheated the department in getting employed, on the basis of a fake certificate.

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A perusal of the impugned proceedings would reveal that the pursuant to the instructions of the Government, dated 08.12.2011, to verify the age of all the persons working in the 1®‘ respondent Corporation, for the purposes of fixation of the cadre strength, the petitioner was^{askedtosubmit} his proof of date of birth vide Memo dated 27.03.2010. Pursuant the same the petitioner has submitted his date of birth as shown in the School Leaving Certificate. As the same was alleged to be bogus a^{showcausenoticedated} 25.05.2012 was issued to show cause as to why the disciplinary^actionshould not be taken against the petitioner, including removal from service. The articles of charges famed depicts as if the petitioner^{onthebasisofthefake}

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^(2012) 2 see 641

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^ (2009) 13 see 102

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School Leaving Certificate has got into employment. The articles of charges thus framed by the disciplinary authority suffers from non application of mind in as much as the petitioner has produced the certificate pursuant to the directions of the respondent authority after rendering service of 19 years. Therefore, it cannot be said that by virtue of the said certificate the petitioner got employed, in the absence of any finding to the^saideffect, Further, as noted from the annexure II of the charge memo dated 04.08.2012, it does not show any list of documents that would be relied upon, list of witnesses to be examined, during the enquiry into the charges framed against the petitioner.

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This court is of the considered view that the explanation was called for vide show cause notice as to why an action^{shouldnotbeinitiated} against the petitioner for furnishing false School Leaving Certificate and for cheating the corporation. Whereas, the charges were framed, as if, on the basis of the said School Leaving Certificate the petitioner got into the service. The disciplinary authority, even before the charges^wereframed and the enquiry officer was appointed, as noted from the show cause notice dated 25.05.2012, had come to a conclusion of imposing the punishment of removal from service. We, therefore are of the considered view that the order of removal from service is vitiated for the following^reasons:

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a) At the stage of show cause notice itself arriving at a satisfaction that the imposition of punishment of removal from service is the appropriate penalty,

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b) Inappropriate framing of charges, c) Non supply of the report of the enquiry officer. In the facts of the case, the non supply of enquiry officer’s report would certainly cause hardship to the petitioner, since no witness was examined and the enquiry conducted that was conducted is unilateral. The

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non furnishing the copy of the report of the enquiry officer prevented the petitioner from making effective representation against the proposed punishment.

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The order under appeal deserves to be confirmed for^theabove and the following reasons, firstly, the person who^{wasstatedtohaveissued} the letter dated 18.04.2012 was not examined by the enquiry officer. The same was obtained by the authorities behind the back of the petitioner. Secondly, the observation of the disciplinary authority that the petitioner has secured the job based on a fake certificate is unfounded because it was never the case of the respondents that the petitioner was employed in service based on the said School Leaving Certificate. The said certificate was admittedly produced by the petitioner as proof of his age, as required by the respondents vide their letter dated 27.03.2010, after 19 years of service of the petitioner in the respondent corporation. The punishment of removal from service is grossly disproportionate to the alleged misconduct. Thus, the order of the learned single Judge does not call for any interference.

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