Allowed

Laxmana Swamy Sirpur Kagaznagar Adilabad v. a.P.Forest Dev.Cor.Ltd HYDAND3 Ors.

Telangana HC19 Dec 2013WP/21830/2001

Case brief

AI extract

What is this about?

Allowed a writ petition challenging recovery of funds from the petitioner's pension. The court held the disciplinary enquiry was illegal as no witnesses were examined, evidence recorded, or the delinquent given an opportunity to cross-examine. The recovery order was set aside as perverse.

What did the court decide?

Orders dated 23.1.2001 and 23.7.2001 set aside; Rs. 48,052.75 to be paid to petitioner if not already paid.

Laxmana Swamy Sirpur Kagaznagar Adilabad… — Pension and Retirement Benefits | Telangana HC (2013)

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HON’BLE DR. JUSTICE K.G. SHANKAR

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WRIT PETITION NO. 21830 OF 2001

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ORDER:

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The petitioner seeks for a writ of Certiorari to set aside the orders dated 2.1.2001 and 23.1.2001 by the second respondent and for consequential reliefs.

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The petitioner joined the first respondent-Corporation on 7.2.1983 as a Clerk. He was subsequently promoted as Deputy Plantation Manager.

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On 11.9.1998, the petitioner was placed under suspension for alleged misconduct. The second respondent served charge sheet upon the petitioner on 26.11.1998. After enquiry, considering that the petitioner was guilty, orders were passed for recovery of a sum of Rs. 48,052.75 and also stoppage of two annual grade increments with cumulative effect through orders dated 23.1.2001. However on appeal, the order was modified. Punishment of stoppage of two annual grade increments

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with cumulative effect was set aside. The punishment of recovery of Rs. 48,052.75, as recorded by the disciplinary authority on 23.1.2001 was confirmed by the appellate authority through orders dated 23.7.2001. Questioning the same, the present Writ Petition is laid.

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The learned counsel for the petitioner attacked the case mainly on the ground that principles of natural justice have been violated in this case. The charge sheet dated 26.11.1998 shows that the petitioner misappropriated the funds of the Corporation and was negligent in his duties resulting in execution of the substandard work and suppression of facts.

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As already pointed out, the petitioner was initially placed under suspension on 11.9.1998. On 7.12.1998, the orders of suspension were invoked. The petitioner was taken back to duty. However, the enquiry was continued. The petitioner made a representation to permit him to peruse the documents relied upon by the disciplinary authority. The petitioner was granted permission on 22.2.1999 to peruse the records to enable him to submit explanation. It is the contention of the learned counsel for the petitioner that although the petitioner has not submitted any explanation, on 30.1.1999 itself, the second

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respondent passed orders directing the petitioner to deposit Rs. 48,053.75.

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After perusing the records, the petitioner offered explanation on 18.3.1999 stating that the allegations against the petitioner were false. On 25.3.1999, the second respondent passed final orders of recovery of Rs. 48,052.75. The orders were passed without any enquiry. The petitioner consequently questioned the same through W.P.No. 9117 of 1999 on the file of this Court. On 30.10.2000, the writ petition was allowed. The second respondent was directed to conduct an enquiry by according reasonable opportunity to the petitioner before orders were passed. Then alone, the second respondent issued notice to the petitioner to appear before him for the purpose of enquiry.

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Curiously, the second respondent issued charge sheet, conducted enquiry and passed orders as Disciplinary Authority. He was the presenting officer as well. The learned counsel for the petitioner submitted that the second respondent was the prosecutor as well as the judge and that such a conduct on the part of the second respondent is in violation of principles of natural justice.

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The learned counsel for the petitioner also pointed out that at the enquiry, no witness was examined and that even the statement of the petitioner was not recorded. The learned counsel for the petitioner pointed out that the procedure adopted by the second respondent in conducting enquiry is violative of principles of natural justice and that the imposition of punishment where there was no proof of the allegation is unjust and is liable to be set aside.

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Where there was no evidence at all and where no witness was examined, holding that the petitioner was guilty of misappropriation or negligence is not a just and reasonable conclusion on the part of the enquiry officer. In SUR ENAMEL AND STAMPING WORKS LIMITED VS. THE WORKME N^[1] , it was observed in paragraph 4 as under:

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“An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined – ordinarily in the presence of the employee – in respect of the charges, (iii) the employee is given fair opportunity to cross examine witnesses, (iv) he is

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given a fair opportunity to examine witnesses secluding himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer reorders his findings with reasons for the same in his report.”

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The Supreme Court gave detailed steps to be undertaken by the disciplinary authority in establishing the guilt of the employee in the disciplinary proceedings. One of the hallmarks of the procedure is recording the evidence of witnesses in the presence of the delinquent and according opportunity to the delinquent to cross examine the witnesses. While so, no witness was examined in the enquiry. The question of according opportunity to the petitioner to cross-examine the witnesses consequently did not arise. Where no witness was examined, I am afraid that the finding of the second respondent that the petitioner was guilty of the charges levelled against him and ordering recovery is perverse and is liable to be set aside. The petitioner has retired from service on 31.3.2007 on attaining superannuation. It would appear that the amount of Rs. 48,052.75 was deducted from the pensionary benefits due to the petitioner. If so, the same is liable to be returned to the petitioner as the order of

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recovery of the said amount is without any reason; the charges against the petitioner have not been proved by any evidence.

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Consequently, this Writ Petition is allowed. The orders of the disciplinary authority dated 23.1.2001 and the subsequent orders of the appellate authority dated 23.7.2001 are set aside. Withholding of Rs. 48,052.65 from out of the amount due to the petitioner is found to be incorrect and illegal. The respondents shall pay the same to the petitioner, if not already paid within four weeks from the date of receipt of a copy of this order. No Costs. Miscellaneous petitions, pending if any in this Writ Petition, shall also stand closed.

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______________________________ DR.JUSTICE K.G.SHANKAR

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DATE: 19.12.2013 KA

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[1] AIR 1963 SC 1914

Laxmana Swamy Sirpur Kagaznagar Adilabad v. a.P.Forest Dev.Cor.Ltd HYDAND3 Ors.

Case brief

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Laxmana Swamy Sirpur Kagaznagar Adilabad v. a.P.Forest Dev.Cor.Ltd HYDAND3 Ors.

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