Allowed

S.M.P.M. Hashmi v. The State of Telangana

Telangana HC14 Jul 2022WP/5106/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a retired Sub-Treasury Officer seeking to quash the order permanently withholding 30% of his pension. The Court held that denying the petitioner the same benefit granted to similarly situated colleagues violated Article 14, overriding concerns regarding delay.

What did the court decide?

To quash the order of punishment imposing permanent 30% pension withholding and set aside the administrative tribunal order, directing equal treatment with similarly situated officers.

S.M.P.M. Hashmi Vs The State of Telangana — Maintenance and Alimony | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY, THE FOURTEENIH DAY OF JULY TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYAN AND

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THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

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WRIT PETITION NO: 5106 OF 2022

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Betwee n:

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S M P M Hashmi, S/o. S.M. Mujeebullah Hashmi, Age 79 years, R/o. 5-6-645, Aslam Street, Karimnagar, Karimnagar District.

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...PETITIONER

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AND

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'1 . The State of Telangana, Rep. by its Principal Secretary, (Finance and Planning) Department of Finance, Secretariat Building3, Saifabad, Hyderabad.

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The Director of Treasuries and Accounts, Govt. of Telangana, lnsurance Buildings, Tilak Road, Abids, Hyderabad.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue Writ of Certiorari or any other appropriate Writ, Order or Orders, Direction or Directions to quash the order of the AP Administrative Tribunal in O.A.No.2685/2006, dt.04.12.2008 and to set aside the order of punishment in G.o.Rt.No.B77, d1.13.03.2006 issued by the 1st respondent imposing the punishment of withholding of 30% pension permanently payable to the petitioner, in the light of the order of this Hon'ble Court in W.P.No.28523/2009, d1.13.07.2017 and to direct the Pt respondent to pay the amount already withheld from the pension of the petitioner with interest and also to continue to pay his pension without any ded uctions.

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lA NO: 1 OF 2022

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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 dispense with the filing of the certified copy of orders of the A.P. Administrative Tribunal in O.A.No.268512006, pending disposal of the Writ Petitio n.

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lA NO: 2 OF 22

Petition under Section 151 CPC^{praying that in the circumstancesstated} in the affidavit filed in support^{of the petition,the High courtmay be pleasedto} suspend the G.O.Rt.No.B77,^{dt.13.03.2006issued by the lstrespondent} imposing the^{punishment of withholdingof 30% pension permanently payable to} the petitioner, in the light of the^{orderof this Hon'ble Court in W.P.No.28523 of} 2009, dt.13.07.2017,^{pendingdisposal of the WritPetition.}

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Counsel for the Petitioner: SMT.^{VEDULA CHITRALEKHA}

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Counsel for the Respondents:^{GP FOR SERVICES ' I}

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The Court at the stage of admission^{made the following: ORDER}

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HON'BLE THE CHIEF JUSTICE^{UJJAL BHUYAN} AND HON'BLE MRS JUSTICE SUREPALLI^NANDA

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w.P NO. 5LO6 0F 2022

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ORDER :^(Per Hon'ble Mrs Justice Surepalli^Nanda)

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Heard learned counsel for the^{petitioner and learned} Government Plead er for Services-I.

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The present Writ Petition is^{filed against the order of A P} Administrative Tribunal^(for short'the^{Tribunal')in O.A No' 2685of 2006,} dated 04.12.2008,^{wherebythe Tribunal has dismissedthe OA and did} not interfere with the^punishment of^{withholding of 30% pension} permanently payable to the^petitioner and to^{quash the said order dated} 04.12.2008 and also to set^{aside the order of punishment imposed in} G.O.Rt.No.877, dated 13.03.2006.

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3, The brief facts of the case are as^follows:

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The Petitioner worked as Sub-Treasury^{Officer, in the Disirict} Treasury Office, Karimnagar during^{the period from March, 1997 to} 3r.01.2001 and^{he retired on 31.01.2001 after attainingsuperannuation.} on 18.02.2004 four^Articles of^{charge were drawn againstthe petitioner} and his explanation was^{called for.}

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The Articles of charge are as^follows:

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a that an amount of Rs. 75,0C0/_ was paid to onu fVr. Sy)1 Ameena Ahmed, Sr. Accountant, Dist. Tre Karinrnasar

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torvards medicar .d"...;;;; ;;,": - ".-:'.,-rreasurv/ or the head ",,n" olll,ilJl'::::;;[ffi: ;:1.:::] :::"; fraudulent dralvl of amount causing financial loss to the Govt.

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b that another medicat reimbursement bill of Rs.5410/_ was processed of the same officer, yvhich is also a fraudulent drawl.

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C That one G, Ranga Swamy, Sub-Treasury Officer, Karimnagar, has also drawn an a ..

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re m b u rse m e nt th o u s h ;:fi ;: :T::'JJ;,:::: :::, ff:

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d That an amount of Rs. 714/, included in the above_mentioned amount of Rs.17,662/, !/as also drawn by the same office, which is also a frauduleirt drawl.

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The petitioner submitted his explanation on 10.04.2004 denying the charges and with the defence as follows: a) He has no authority to sanction the bills since he is only a Sub_ T.reasury Officer and that the bills are prepared by the District Treasury officer and are passed by the Assistant rreasury officer and as such he is not responsible for both preparing and passing of bills for payment. Several employees of the Karimnagar Treasury Office were charge sheeted with the same allegations and, the governrlent conducted common inquiry against all the charged officers by appointing G Vijay Kumar, Joint Director as Inquiry Officer and the Inquiry Officer found those cha rges proved against all the charged employees and consequenUy, the Government issued G.O.Rt,No.B77, dared 13.03.2006 "/ tmposing the punishment of withholding of 3Oolo pension perma nen y on

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the petitioner, The order of punishment suffers from non-application of mind and unreasonableness. The disciplinary authority failed to see that there is no role played by the charged officer in both^preparation and passing of bills for payment and therefore, cannot be implicated for fraudulent drawal.

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b) The charged officer questioned the G.O Rt. 877, and approached the Tribunal by way of O.A.No.26B5 of 2006, which was dismissed on 04.12.2008 stating that the inquiry was conducted in accordance with the rules and no prejudice has been caused to the employee and that the case of the petitioner doesn't warrant any interference. The petitioner again approached the Government and submitted various representations seeking the consideration inspired by the events that have subsequently taken place in respect of the other charged employees i.e. one Smt. Sofiya, who was initially punished with stoppage of two years increments with cumulative effect and later converted into stoppage of one increment with no cumulative effect and that of one V. Babu Rao, who was initially reduced in rank from the post of AO to ATO and later converted into withholding of 27o pension for one year and that of one Saleem Raza, who was also initially given the punishment of stoppage of two increments with cumulative effect and then converted into stoppage of oneincrement with no cumulative effect and that of one S.Kommaiah, who WAS initially punished wlth withholding of 30o/o pension permanently and 'after the High Court quashed the order of punishment tn WP.No.28523/2009 on 73.07.2077, which was converted into withholding

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of 27o pension for one year.^-l'he petitioner stated that he also ,i"r.ruu,, simi!ar benefit since he is better placec than those ofl.icei-s as he was not involved in the preparation and passing of the biils nor sanctioned the bills, It is submitted ilrat the petitioner's representation was considered by the 2nd Respondent and recommended to the 1't respondent in retter no' G2i4C,3/2ALB, dated 23. r0.201r1 to reconsider the case and to irnpose punishnrent of zck cut in the pension for one year on par with the case of Kommaiah, decided on 13.07.2017 in V/i.,.No.28523/2009. But, tlre Governrnent issued Memo No.2756_A/14 S/DTA/C/2OIB, dt.12.02.2019 i-ejecting to interfere nrith the punishment imposed on the petitioner. Aggi-ieved by the same, the petitioner filed Wp. No. 78t.5/2019 before the High Court seeking to quash the order of punishment imposed in G.o,Rt.No.B77, dated 13.03.2006 and also to set aside the memo dated L2.02.2019. Unfortunately, the petitioner,s counsel omitted to challenge the order of the Tribunar in oA.No.2685/2006, dated 44.12.2008, when the W.p.No.7B15 of 2019 came up for hearing on 30.12.202t, the same was withdrawn with riberty to file fresh writ petition. Therefore, this writ petition is filed.

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The respondents filed counter contending as follows:

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The Government after examination of the inquiry report and atter following due procedure awarded punishment of iarithholding 30% of pension vide G.o.Rt.No.877 of Finance (Admn-I vic) Department, dated 13.03.2006 and that the petitioner has not chosen to prefer review

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petition as provided under Rule 38 of APCS^(CC& A) Rules, 1991 and directly challenged the^{said GO before the Tribunal} vlde O.A.No.268 of 2006, which was dismissed on^{04.12.2008. That the} impugned^proceedings are in accordance^{with law, It is further statedin} the counter that the^petitioner has^{passedthe bills in contraventionoF the} audit rules though they are^{not admissiblefor the reason that the} sanction for the expenditure^{was accorded by the DTO, who was not the} competent authority to do so, It^{is submitted that based on the inquiry} report submitted by the Regional Joint^{Director,Region III, the Director of} Treasuries and Accounts has initiated^{disciplinaryaction againstthe in} service personnel and forwarded the^case of^{the petitioner, who retired} from service and that the Government has^{initiated departmental} proceedings under Rule 9 of A.P. Revised Pension Rules,^{1980 against the} petitioner and framed charges vide G.O.Rt.No.B29 Finance^{(Admn.I VIG),} Department, dated 18.02.2004 appointing^{G.Vijay Kumar, loint Director} as Inquiry Officer. The Inquiry^{Officer conducted inquiry and held all the} charges proved against the^petitioner and^{submittedreport to the} Government. After examination of^{the Inquiry report, the Government} awarded^punishment of withholding of^{30o/o inpensionvide} G.O.Rt.No.B77, Finance^{(Admn.-IVIG), Department,dated 13.03'2006.} Sri S.Kommaiah, ATO^(retired), who^{was charged in the said case filed} W.P.No.2B523 of 2009 before the A'P'^{High Court against the orders} issued in G.O.Rt.No.B76, dated 13'03'2006^{as well as the orders of the} Tribunal dated 06.11.2009 in O.A.No.2206^{of 2006 and in the said wy'r'}

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(,<

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petition punishrnent of iixposing 30% cut of pension was quasheXconseq Ltently, the Government issueci G.O.Rt.t\io.1212, Finance (VC) Department, cated 24.0g.2018 rnodifying the punishnrent inrposed cn him tc withhold 2o/c cut of pension tbr a pe'iorJ of one year. But uie petitioner has not chosen to prefer any re'iev/ petition as provided uncreiRule 38 oi APCS (cc&A) Rules, 1991 to the Government and ciirecily approached the Tribunar and hence, the Tribunar dismissed the said oA. That the impugnei proceedings are in accordance with iaw. The mercv petition dated 14'03'201r. of the petiticner was rejected vitre Memo No. 10066/343141lAdmn.I / 2c)rs, of Finance (Admn-I) Department, ciai:ed 26.08.2015 as there are no t.lew grounds.

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The main conte,tions of rearned counsei for the petitioner are as iollows:

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1. The order of punishment impcsed by the Tribunal is non applicalion of mind and also unreasonabieness.

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1. The disciplinary authority faired to see that there is no i-ore played by the petitioner either in preparation of the biils oi- in passing of the same for payment.

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1. The petitioner cannot be implicated for fraudulent drawal of bills since they were prepared and passed by the ATO.

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1. The petitioner's case unfortunatery did not receive favourable consideration before the Tribunal and also before the Govern me nt.

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1. in view of the fact that the case of all other employees, who involved in the simirar ailegations were reconsidered and were / imposed with lightest punishment and hence, the petitioner,s

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case also^{deserves a similar benefit' The petitioner had no} involvement^{at all in preparationof the bills and passing of the} same since^{the bills werenot preparedby the petitioner 0r were} sanctioned^{bY the} Petitioner'

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1. The^{petitioner's case is clear case of discrimination and the} impugned^{order of punishmentis violative under Article 14 of the} Constitutlon^{of Indiaand opposed of doctrineof equality' as such} the^{petitioner is also entitledfor the samerelief'}

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1. Though the^{2nd respondent considered petitioner's representation} and recommended^{to the 1tt respondent (Government) vide} letter No.G2l4013/2018,^{dated 23'10'2018 to considerthe} petitioner's case^{and impose punishment of 2o/o cut in the} pension for one^{year on par with the case of Kommaiah decided} in W.P.No.28523^{of2009, dated !3'07 '2017} '^{but the} Government^{mechanicallyissued Memo No'2756-} A/145/D:jA/vClzOtB,^{dated12'02'2019 rejecting to interfere} with the^{punishmentimposed on the petitioner'}

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order of the^{High Court dated t3'07 '20L7 passed} ln

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B) rhe W.P,No.28523of200gissquarelyapplicabletotheCaSeo^{f the} petitioner and^{therefore, the order ofpunishmentin} G.O.Rt.No.B7⁷ ,^{daledf 3'03,2006is liable to be quashedentirely} andtheWritpetitionisliabletobeallowedasprayedfor.

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LearnedGovernmentPleadermainlycontendedasfollows:

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the^{preliminaryinquiry report submitted by the}

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l) Based^on oint Director,^{RegionIII, the Director of Treasuries and}

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Regional^J Accounts has initiated^{disciplinary action against the in-service} and forwarded^{the case to Government in respect of}

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\ personnel the employees^{retiredfrom service'}

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1. The Government^{initiated departmentalproceedingsunderRule} 9 of^{AndhraPradesh Revised Pension Rules' 1980 against the}

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petitioner and charges were framed against the petitioner vi G.O.Rt.No.B29, dated 18.03.2004.

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1. Sri G.Vijay Kumar, loint Director and Inquiry Officer had held that all the charges framed against the petitioner are proved and the Government after examination of inquiry report and after following due procedure had awarded a punishment of withholding 30o/o in pension permanently to the petitioner vide G,O.Rt No.B77 (Finance (Adnrn.I.VIG) Department, dated 13.03.2006.

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1. The punishment awarded was conclusion of disciplinary proceedings and the punishment was reduced in respect of the other charged officers at the stage of appeal or review by the Government, after examination of the material adduced at the time of appeal. But the petitioner had not chosen to prefer review petition to the Government as provided under Rule 3B of the A.P.C.S(CC&A) Rules, 1991 and directly challenged the orders before the Tribunal in O.A.No.26B5 of 2006, wherein orders were passed on 04.12.2008 observing that the impugned proceedings are in accordance with law and the OA is accordingly dismissed and therefore, the Government had rejected the mercy petition of the petitioner.

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1. Learned Government Pleader relied upon the^judgment dated 12.08.2015 of the Division Bench of A.P. High Court in W.P.No. 28539 of 2014 following^judgment in Mubashir Hussain v Commissioner of Central Excise-III, Hyderabad and othersl held that a party to the proceedings before the APAT does not approach the High Court concerned within one^year period or at any rate within three years period, such writ petitions cannot be entertained in normal course, unless an

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'zoor1rl^{alr 289 (289)}

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exceptional^{case is made out for entertainingany such writ} Petition.

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1. Learned^{GovernmentPleader also relied on the judgment of the} Apex Court^{in Jagdish Lal and others v State of Haryanaand} others2^{wherein it was held that the delaydisentitles a party to} discretionary^{reliefunder Article 226 or the Article 32 of the} Constitution^{of India'}

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Perused^{the material available on record'}

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Para 9 of^{the counteraffidavit reads as under:}

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"It is respectfutly^{submittedthat Sri S'Kommaiah'ATO (Rtd)' whois} also a^{ChargedOfficer in this case' fited a W'P'No'28523 of 2009'in} the^{Hon'bte AP High Court against the orders issued vide}

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G.O.Rt.Na.876,^{dated 13'03'2006as well as the orders of the} Hob'ble^{APAT dated 06'11'2009 in O'A'No'2206of 2006' The}

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Hon'bte High^{Court of Judicature at Hyderabad'vide order} W.P.No'28523^{of 2009, dated 13'07'2077' quashed the orders} imposing^{30o/o cut of pensionin r/o Sri S'Kommaiah'Assistant}

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Treasury^{Officer (Rtd)' And consequenttY Government'vide'} G.O.Rt.No,1272,^{Finance(VC) Department' dated 24'09'2018have} modified^{the punishmentto withhotdingof 2o/o cut in pensionfor a} period of^{(01) year' But the petitioner has not chosen to prefer}

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review^{petition in the matter to the Governmentas provided under} Rute 38 of^APCS GCAH^{Rules,1991 and directty challengedthe} orders in^{the Hon'bte APAT in the O'A'No'2685of 2006' whichhas} the oA on^{merits, wherein orderswere passed,dated 04'12'2008,} stating that^{the 'impugned proceedingsare in accordance with law}

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, "^{and the O.A., lsaccordingly dismissed'' And accordingly} Government^{have rejectedthe mercy petitionof the petitioner"'}

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'^{1997(6)scc sl8}

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As per the counter affidavit filed by the respondents the only ground for denial of relief to the petitioner is that O.A. No.2685 of 2OO6 was decided on merits wherein orders were passed on 04.12.2008 stating that the impugnec,i proceedings are in accordance with law and OA is accordingly dismissed and that the petitioner has not chosen to prefer review petition in the rnatter to the Government as provided under Rule 38 of APCS (CC&A) Rules 1991.

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This Court opines that the judgments reiied upon by the Learned Government Pleader appearing on behalf of the respondents do not apply to the facts and circumstances of the present case in view of the fact that the petitioner explained the circurnstances under which he approached this Court by filing the present ,vrit petition in detail in the affidavit filed in support of the petition. That apart, the petitioner is a retired government employee with attendant life complications. Furtlrer the petitioner seeks relief on parity, It would be wholly incongruous if similar benefits being enjoyed by identically placed persons are denied to the petitioner only on the ground of delay. in such a fact situation the maxim 'delay defeats justice'would not apply. Therefore, the petitioner cannot be denied relief on the ground of delay. :

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A bare perusal of contents oF letter of Director, Treasuries and Accounts Department, Telangana State to the Secretary to Government

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a-. ,a(-

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(CVO) Finance (VC) Department, Telangana State Secretariat, Hyderabad vide letter No.c2/40L3/2018, dated 23.10,2018 ctearty indicates that the 2nd respondent recommended the case of the petitioner to the 1st respondent duly considering the representation of the petitioner and requested the I't respondent to consider the mercy petition of the petitioner for necessary orders in the light of the judgment of High court in a similar case referring to case of one Sri S.Kommaiah, ATO (retired), who is also a charged officer In this case and who had filed W.p.No.2g523 of 2009, before the High Court of Andhra pradesh against the orders issued in G.O.Rt.No.876, dated 13.03.2006 as well as the orders of the Tribunal dated 06.11.2009 in OA No.22O6 of 2006 and the High Court vide its orders dated t3.07.2017 passed in W.p.No.2g523 of 2009 quashed the GO imposing 30o/o cut of pension and consequently, vide G.O.Rt.No.1212 Finance (Vigilance Cell) Department, dated 24.Og.zOtB the punishment was modified to withholding of 2o/o cut in pension for a period of one year.

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The proceedings dated 23.10.2018 clearly observed as under:

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"In view of the above, I am herewith forwarding the mercy petition of Sri S.M.P.M.Hashmi, SfO (Rtd) for further necessary orders in the light of judgment of Hon'ble High Court in the same case based on which the punishment was reduced to 2g cut tor (01) year. similar relief/ red uction may be permitted to the applicant as it involves procedural violation and no financial loss to Government on humanitarian grounds.,,

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In spite of a clear recommendation in favoui- of the petitioner by t 2nd respondent vide his letter No.4Z/4013/?-OlB, clated 23.10.20f8 addressed to the I't respondent, which very clearly observed that similar relief - reduction may be pernritted to the applicant as it involves procedural violation and no finarrcial loss to government on humanitarian grounds yet the 1st respondent passed a very cryptic, unreasonecl order vide Memo No.2756-A/t45/DrA/VC/2018, datecl L2.O2.2}tg, this Court opines that failure to give reasons amounts to denial of justice.

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The Apex Court in Gurusharan Singh v New Delhi Municipal Committee and others3, at para 9 of tlre said judgment observed as under:

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"before a claim based on equality clause is uphetd, it must be established by the petitioner that his claint being just and legal, has been denied to him, while it has been extended to athers and in this process there has been a discrimination,,.

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This Court opines that the disciplinary authority and also ApAT in its order dated 04,12.2008 in O.A.No.2685 of 2006 failed to take into account the categorical statement made by the petitioner in the writ petition that he has no authority to sanction the bills since he is only a sub-treasury officer and that the bills are prepared by the District Treasury Officer and are passed by the Assistant Treasury Officer and as such the petitioner is not responsible for both preparing and passing of bills for payment and the said statement has also not been categorically

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J r 996 scc 1zy lsl

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denied by the respondents in their counter affidavit. Undoubtedly the above factors are relevant to be taken into account while awarding punishment which has not been taken into account in the present case. The respondents even failed to explain the justification in denying the 1!rant^{of relief to the petitioner} as^extended to the^{petitioner in} W.P.No.2B523 of 2009 in the counter affidavit filed by them, having admitted in the counter affidavit that the same was granted to one Sri Kommaiah in similar circumstances. It is also borne on record that different punishments have been awarded to similarly sltuated^persons and the same constitutes clear discrimination and therefore, the writ petition is liable to be allowed, since the treatment meted out to the writ petitioner suffers frcm the vice oF arbitrariness and this Court opines that Article 14 of the Constitution of India forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14 of the Constitution of India.

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The petitioner's case is based on equality clause and the petitioner has established before the Court that his claim is^just and legal, but however, the same has been denied to him, while it has been extended to others and in this^process there has been discrimination. Therefore, the petitioner is entitled for the same benefit as extended to the petitioner in r#.P.No.28523 of 2009 on the ground of equality of treatment with perso n's similarly situ ated.

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