P.Ganga Naik Vs State of Andhra Pradesh

P.Ganga Naik, S/o. Kotya Naik, aged about 49 years. Occ; Deputy Executive Engineer, P.R.l. Sub-Division, Macherla, Guntur District , R/o. Flat No. 403, Mayuri Crystal Dww, Vidyanagar, 1st Lane, Guntur.

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...PETITIONER-

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AND

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The State of Andhra Pradesh, Rep. by its Principal Secretary,

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Panchayat Raj and Rural Development (Vig.ll) Department, Andhra Pradesh Secretariat, Hyderabad-500 022.

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The Engineer-in-Chief, Panchayat Raj, Andhra Pradesh, Errumanzil, Somajiguda, Hyderabad 500 082.

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...RESPONDENTS ^

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Petition under Article 2^ of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith the High Court may be pleased to issue an order or direction calling for the records pertaining to G.O. Rt. No. 1014, Panchayati Raj and Rural Development (VIG.II) Department, dated 31.10.2(fl5, issued by the 1 respondent, and quash the same as illegal, arbitrary, contrary to A.P. Civil Services (Classification, Control and Appeal) Rules. 1991 and unconstitutional.

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Counsel for the Petitioner: M/s. S. SIVA KUMARI --

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Counsel for the Respondent Nos.1 & 2: GP FOR SERVICES IV

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The Court made the following order:

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APHC010604432024

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3311]

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(Special Original Jurisdiction)

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Wednesday, the second day of July, two thousand and twenty five

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Present

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The Honourable Ms. Justice B.S. Bhanumathi

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Writ Petition (AT) No.123 of 2021

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(O.A.No.1608 of 2016)

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Between:

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P. Ganga Naik S/o Kotya Naik, aged about 49 years Occ: Deputy Executive Engineer, R/o Guntur

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...Petitioner

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and

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The State of Andhra Pradesh, rep. by its Principal Secretary, Panchayat raj & Rural Development and others

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Respondents

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Counsel for the petitioner;

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S. Siva Kumari

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Counsel for the respondents:

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G.P. for Services

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The Court made the following:

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ORDER:

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The writ petition is originally filed before the Andhra Pradesh Administrative Tribunal vide O.A.No.1608 of 2016. After transfer of the case to this Court, it was re-numbered as W.P.(A.T.).No.123^of2021. The writ petition is filed to quash G.O.Rt.No.1014, Panchayat and Rural Development (Vig-ll) Department, dated 31.10.2015, issued by the respondent No.1 as illegal, arbitrary, contrary to^{theA.P.CivilServices} (Classification, Control and Appeal) Rules, 1991.

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The case of the petitioner is briefly as follows:

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a. The petitioner, while serving as Assistant Engineer, Mandal Parishad, Komarole, Prakasam District, was placed under suspension on 24.03.2005, based on allegations of irregularities^{intheexecutionof} Food for Work Programme (F.F.W.P.) / S.G.R.Y. works and misappropriation of rice worth Rs. 66,88,742/-. The Executive Engineer, P.R. Division, Markapur, addressed a letter dated 21.04.2005 to the Superintending Engineer, Panchayat Raj, Guntur, submitting a report that the allegations against the petitioner were not major. The Superintending Engineer, P.R. Circle, Guntur, conducted an enquiry and submitted a report dated 23.05.2005 to the respondent No.2, recommending that no further action be taken. However, disregarding this report, the respondents issued a charge memo on 21.07.2006, alleging that the petitioner misused 56.2265 M.T.s of rice worth Rs.3,17,671.30/-, causing loss to the State’s exchequer. The petitioner submitted a detailed explanation on 23.08.2006, denying the charges and requesting that further action be dropped. Pending disciplinary proceedings, the petitioner was reinstated into service on 27.11.2007, vide G.O.Rt. No. 1642 Panchayat Raj and Rural Development (VIG. 1(A)

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rr- ^

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Department). Subsequently, the petitioner was promoted to the post of Deputy Executive Engineer (P.R.) temporarily on 22.07.2009 and has been discharging his duties without any adverse remarks. A joint inspection was conducted on 19.04.2006 and 20.04.2006 in respect of the alleged irregularities in Komarole Mandal. The Superintending Engineer, P.R. Circle, Guntur, submitted written arguments on 25.02.2010, supporting the petitioner’s claim of innocence. The Commissioner of Inquiries submitted his report on 24.12.2011, but his findings were not properly considered. b. The Vigilance and Enforcement officials inspected the works after a gap of three years during which natural factors, such as, heavy rains and lack of maintenance could have obscured evidence of the executed works. The distribution of rice was supervised by the Mandal Parishad Development Officer and the Civil Supplies Department, and the petitioner had no direct involvement in any misappropriation. Despite these submissions, the respondent No.1 issued a memo on 09.03.2012, calling for an explanation from the petitioner, to which he responded in detail on 28.07.2012. c. Without proper consideration of the petitioner’s defense or the findings of the Superintending Engineer, the respondent No.1 imposed a penalty of stoppage of one annual grade increment with cumulative effect, vide G.O. Rt. No. 1014, Panchayat Raj and Rural Development (VIG. II Department), dated 31.10.2015. The penalty is disproportionate, arbitrary, and violative of the Andhra Pradesh Civil Services (C.C. & A.) Rules, 1991. Since the petitioner is only a supervising authority,^he cannot be held solely responsible for the alleged misappropriati on at the village level, particularly when higher authorities like the Mandal Parishad Development Officer, were the controlling^officers.

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d. The impugned punishment is a major penalty under^theA.P.C.S. (C.C. & A.) Rules, 1991, and was imposed without proper^{justification.} The delay in concluding the disciplinary proceedings,^{spanningovera} decade, has caused undue prejudice, and the findings^oftheinquiry were not based on conclusive evidence. 3. The respondents filed the counter affidavit stating briefly as follows: a. The case pertains to irregularities in implementation^ofFoodfor Work Programme (F.F.W.P.) and Sampoorna Grameen Rozgar^Yojana (S.G.R.Y.) in Komarole Mandal of Prakasam District.^{TheVigilance&} Enforcement Department conducted inspections and submitted^Report No. 95, dated 24.08.2004, which found misappropriation^of1,092M.Ts. of rice worth Rs.66,89,000/- across five mandals, including^Komarole. Specifically in Komarole Mandal, out of 119 works inspected, irregularities were found in 16 works - involving release^{ofricefor4non} existent works and excess release of rice in 12 works, totalling misappropriation of 77.874 M.Ts. of rice worth Rs.4,80,117.90/-.^The petitioner, who served as Assistant Engineer in Komarole Mandal during the relevant period, was found responsible along^{withfiveother} officers. Based on the findings in the V & E report,^{thepetitionerwas} placed under suspension vide G.O.Rt.No.516 dated 24.03.2005.^The Guntur submitted a report, dated Superintending Engineer, P.R. 23.05.2005, stating that works were executed as per records and attributing discrepancies to villagers removing jungle^{stumps.However,} the government found this report unreliable as it lacked specific inspection dates and details, and appeared to support^{thedelinquent} officers without proper verification. The V & E Department in their remarks dated 04.11.2006 maintained their findings, noting that the

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inspection was conducted 2 72 years after works and there was no physical evidence of the jungle clearance works.

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b. Proper disciplinary proceedings were initiated by issuing charge memo vide Memo No.10038A/ig.l(A)/2004-8 dated 21.07.2006,^towhich the respondent submitted written statement of defense. The case was then entrusted to Commissioner of Inquiries (C.O.I.) vide G.O.Rt.No.692 dated 15.05.2007. The C.O.I. in the report dated 24.12.2011, stated that the petitioner’s defense was heavily rested on the Joint Inspection Reports which lacked credibility as they did not explain divergences from V & E findings or specifically address the irregularities. The C.O.I. noted that the petitioner failed to produce documentary^evidence or examine witnesses to substantiate his claims, and therefore, held the charges as proved.

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c. The respondents stated that the C.O.I.'s findings were communicated to the petitioner vide Memo No.10038A/ig.lA/2004^dated 09.03.2012 seeking his explanation. After considering his reply, the government proposed penalty of stoppage of one annual grade increment with cumulative effect. The A.P.P.S.C. was consulted vide letter dated 08.05.2015. The A.P.P.S.C. concurred with the proposed penalty vide letter dated 16.09.2015. Consequently,^{thefinalorder} was issued vide G.O.Rt.No.1014, Panchayat Raj and Rural Development (VIG.II) Department dated 31.10.2015 imposing the penalty.^Theentire disciplinary proceedings were held following due process under A.P.C.S. (C.C. & A.) Rules, 1991 and the penalty was proportionate to the established misconduct.

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Heard both sides.

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The main grievance of the petitioner is that there^{wasinordinate} delay in the inspection and thereby, the work done could not be identified for want of subsequent maintenance after^execution of the work and further, the inspection team is said to have^{visitedtheareas} without assistance from the petitioner and similar employees who could have correctly identified the work done area and therefore, the conclusions drawn by the C.O.I. is based on assumptions^and the explanation given by the petitioner was not properly^answered. That apart, it was also vehemently contended that many reports^areinfavour of the petitioner to drop the allegations, such as the report of the Superintending Engineer, P.R. Circle, Guntur, dated 25.03.2005, report of the joint inspection team in furtherance of the inspection held on 03.05.2006 and also the written arguments of the Superintending Engineer, P.R Circle, Guntur submitted on 25.02.2010, but without considering the best material, the petitioner was held guilty and punishment was disproportionately awarded. It was also vehemently contended that the role of the petitioner is only supervisory,^whereasthe work was done under the direct control of M.P.D.O. and Civil Supplies department and as such, there is no possibility of the petitioner to directly involve in any other misappropriation.

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The punishment imposed is also challenged on the ground^that A.P.P.S.C. was not consulted. The petitioner placed^{relianceonthe} decisions in support of the argument. The petitioner^{furthercontended} that the explanation offered by C.O.I7 similar to the explanation of the petitioner was considered and the proceedings were^{recommendedto} be dropped, whereas the petitioner was not given the^samebenefit. In this regard, the petitioner placed reliance on the^decision in G.Valli

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Kumart Vs. Andhra Education Society and others', wherein there was no consideration of the explanation of the petitioners by the respondents in the order which was dealt with. It was also further contended that the procedure contemplated under the C.C.& A. Rules for holding the enquiry was not duly followed.

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The learned Assistant Government Pleader representing the respondents vehemently contended that all these grounds had been raised before the Enquiry Officer and they all had been answered in detail giving reasons for each and every explanation submitted by the petitioner and therefore, there is no truth in the contentions of the petitioner. He further submitted that the A.P.P.S.C. was also consulted in respect of the proposed penalty as described in the counter and therefore, it is not correct to state that the penalty imposed is not valid for want of consultation.

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The learned counsel for the petitioner relied on the following decisions:-

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(i) Roop Singh Negi Vs. Punjab National Bank and others^ It was held at paragraph No.20 as follows: 20. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason

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1 2010(2) see 497 2 (2009) 2 see 570

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as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required^tobe proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are.^As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”

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(ii) Director (Marketing), Indian Oil Corporation Ltd. Vs.^Santosh Kumar^. It was held in paragraph Nos.6 & 11 as follows:

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“6. Before the High Court, a solitary contention was raised on behalf of respondent stating that despite a detailed response preferred by the respondent herein, the Appellate Authority passed the order dated 15.5.2000 without considering any of the issues raised by the respondent herein as petitioner in the writ petition.^The learned Judges of the High Court had also perused the records placed before them by the Corporation. It is^seen

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3 (2006) 11 see 147

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from the impugned order passed by the High Court that the Judges were satisfied that no reasons whatever had been recorded in either not accepting the issues raised by the respondent in response to the show cause notice nor had the claim of the respondent made in the various grounds raised by him in his appeal been considered. The learned Judges of the Division Bench felt that the orders of punishment dated 30.12.1999 as well as the order dated 15.5.2000 by which the respondents appeal had been rejected are cryptic and non-speaking orders and, therefore, the orders passed by the Disciplinary Authority and Appellate Authority. are liable to be setaside on the ground of non-application of mind. The High Court also held that the action taken by the authorities is arbitrary. However, the learned Judges while settingaside the order of dismissal as well as the appellate order, issued a direction to the appellant-Corporation to reinstate into service with continuity in service with all consequential benefits. Liberty was also reserved to the appellant to re-initiate the enquiry from the stage of consideration by the Punishing Authority and pass appropriate orders in accordance with law. 11- A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no Other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh disposal to the Disciplinary .Authority. The Disciplinary Authority shall consider the.

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detailed representation made by the respondent and^also consider the detailed report of the Enquiry Officer^and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only^on the basis of records already on record. The respondent^is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside for the above reason. We also set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter,^within three months from the date of receipt of this order,^after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs.”

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(iii) G. Valli Kumari Vs. Andhra Education Society and others (1 supra), it was held at paragraph Nos. 19 to 21 as follows:

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“19 In his order, the Chairman of the Managing Committee did refer to the allegations leveled against^the appellant and representation submitted by her in the light of the findings recorded by the inquiry officer but^without even adverting to the contents of her representation^and giving a semblance of indication of application of^mindin the context of Rule 120(1 )(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was

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passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned. 20. A careful reading of the Tribunal's order shows that though it did not find any procedural infirmity in the inquiry against the appellant, the order passed by^the Chairman of the Managing Committee was nullified only on the ground of violation of Section 8(2) of the Act read with Rule 120(2) of the Rules inasmuch as permission of the Director was not obtained before removing the appellant from service. The High Court set aside the order of the Tribunal and indirectly restored the order passed by the Chairman of the Managing Committee because it was of the view that Section 8(2) is not applicable to the minority institutions. Neither the Tribunal nor the Division Bench of the High Court dealt with and decided the appellant's challenge to the findings recorded by the inquiry officer and her plea that the extreme penalty of removal from service imposed on^her was not justified because she was not found guilty of any serious misconduct. 21. Since the order of punishment passed by the -s Chairman of the Managing Committee is vitiated due to

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violation of the statutory rules and the principles of natural justice, we may have remitted the matter to^the Tribunal with a direction to consider whether or not the penalty of removal from service imposed upon the appellant was disproportionate to the misconduct found against her or the action taken by the management was wholly arbitrary or unjust but keeping in view the^factthat the appellant was removed from service more than 13 years ago, we do not consider it proper to adopt that course.”

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(iv) In Badru Huda Ahmed Vs. The State of Assam and others'*, it was held at paragraph No.7 as follows:

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“7 Framing of charges or dropping a particular charge is not within the jurisdiction of the Inquiry^Officerif he is different from the Disciplinary Authority. ...It^isalso apparent on the face of the removal order that the disciplinary authority found all the charges framed against the petitioner as proved. But as observed earlier, charge No.3 was dropped by the inquiry officer in his report without any authority and it is not understood^how the disciplinary authority could hold that all the charges drawn against the petitioner had been proved.”

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It is clear that the enquiry authority has considered all the objections raised and the explanation given by the petitioner and duly answered. Merely because the other authorities are also part of the

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4 1972 (7) SLR 62

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working team, the supervisory role of the petitioner is not insignificant significant and failure to discharge such duty calls for disciplinary action. The cases cited were decided basing on the facts and circumstances therein. Each case has to be decided in the light of the facts, contentions and evidence.

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Insofar as consultation with the AP.P.S.C. also, there is no denial of the correspondence with the A.P.P.S.C. indicated in the counter. Therefore, there was due consultation and consequently penalty cannot be challenged on that ground. At the most, in the light of the explanation offered by the petitioner, the quantum of punishment ought not to be as high as is awarded. Therefore, penalty of stoppage of one annual grade increment with cumulative effect is altered to stoppage of one annual grade increment without cumulative effect.

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Accordingly, the writ petition is allowed in part modifying the punishment imposed as above.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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To,

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Sd/- M. RAMESH BABU DEPUTY REGISTRAR //TRUE COPY// // ^ . SECTION OFFICER

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The Principal Secretary, Panchayat Raj and Rural Development (Vig.ll) Department, State of Andhra Pradesh, Andhra Pradesh Secretariat, Velagapudi, Amaravati, Guntur.

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