Syed Abdul Qaiyum Vs The State of Telangana

Petition under Ariicle 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 a writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order made in G.O.Rt. 218, Health, Medical and Family Welfare (VC.2) Department, dated 13-04-2022 by the 1st respondent as illegal, arbitrary, unjust and violate of principles of natural^justice besides vitiate the entire enquiry. Consequently direct the respondents to pay all consequential terminal benefits such as full pension, gratuity, commutation value of pension etc.

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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 suspend the impugned order made in G.O.RI. 218, Health, Medical and Family

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Welfare (VC.2) Department, dated 13-04-2022 passed by trre 1st respondent pending disposal of the above Writ petition.

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Counsel for the Petitioner: SRI SHAIK ABDUL KALAM RIYAZ REP- FOR SRI S.A.RAZAK

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Counsel for the Respondents: AGP FOR SERVICES-ll

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The Court made the following: ORDER

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THE HON'BLE MRS. JUSTICE SUREPALLI NANDA

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WRI T PETITION No.2 4679 0F 2022

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ORDER

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Heard Sri Shaik Abdul Kalam Riyaz, learned counsel representing Sri S.A.Razak, learned counsel appearing on behalf of the petitioner on record and the learned Assistant Government Pleader for Services-Il appearing on behalf of the respondents.

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2 e t oner a roa ch ed he o rt e kin

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praver as under:

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".._to issue a !/rit or order or directiort rncri: particularly one in the nature of Writ of Mandamus declaring the impugned order made in G.O.Rt.2iB, Health, Medical and Family Welfare (VC.2) Department, datecj t3-04-2O22 by the 1'r respondent as illegal. arbitrary, unjust and violate of principles of natural^justice besides vitiate the entire enquiry, Consequently dii'ecl the respondents to pay all consequential terminai benetits such as full pension, gratuity, commutation value of pension etc., and pass such other order or orders in the interest of^justice." 3. The case of the^petitioner, in brief, as^per the averments made in the affidavit filed by the^petitioner

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in support of the oresent Writ Petition^is as under:

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i) The petitioner was appointed as .lunior Analyst in the Institute of Preventive Mediclne on 06.02.1986,^promoted as Senior Analyst on 07.02.1998, and retired on 3t.IO.20tl^.

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ii) While in service, the petitioner was issuerl with four charge memos mainly relating to availing earnecl leave and obtaining a^passport without prior permission. I'he enquiry resulted in a minor penalty of withholding onr: increment without cunrulative effect in 1997, which was later regularized

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iii) However, after 21 years and just before retirement, the memo respondents issued another charge R.C.No.2612lF-7/2016-17 dated 31.08.2017 allegrng that the petitioner had obtained a passport in 1991 by suppressing facts and rvorked abroad as a Chemist. The petitioner had submitted his explanation dated 08.O9.2017, the^.espondents passed the impugned order G.O.Rt.No.218 dated 13.04.2022 imposing a permanent 50o/o cut in pension. Aggrierved by the same, the^petitioner filed the present writ petition.

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A. PERUS$IIIEBEGABDi

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(A) The relevant portion of G.O.Rt.No.218. Health, Medical and Familv Welfare (VC.2) Deoartment dated t3.O4.2022, issued bv the respondent No.1 the Secretarv to the Government, Health; Medical and Familv Welfare^(VC.2) Department, Telanoana, is extracted hereunCer:-

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"Whereas, in the reference 1't read above, Director, Institute of Preventive Medicine Public Health Labs and Food (Health) Administration, Hyderabad has initiated departmental action under rule 20 of the Telangana Civil Services (CIa ssificatio n, Control and Appeal) Rules, 1991 against Sri Syed Abdul Qaiyum, Senior Analyst (Retired) by framing article of charges. in the reference 2nd read above, the Charged Officer has submitted his written statement of defence.

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Whereas, in the reference 3'd read above, appointed the Deputy Director^{(Bio-Chemistry),} Institute of Preventive Medicine, Hyderabad as Inquiring Authority. The Inquiry Authority has submitted his report holding that the charges are held proved against the charged officer^vide reference 4th read above. In the reference 5th^read above, a copy oF enquiry report communicated^to the charged officer calling for^{his explanation.The} charged officer has submitted his^{explanation,vide} reference 6th read above.

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Whereas, in the reference 7th read above,^the Director, Institute of Preventive^{MedicinePublic} Health Labs and Food (Health)^{Administration,} Hyderabad has requested the Government to^take further necessary action in the matter as^{per rule} 9(2)(a) of Telangana State Revised^{Pension Rules,} 1980, as the charged officer retired from service.

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Whereas, after examination of the disci:linary case initiated against Sri Syed Abdul Qaiym, Senior Analyst (Retired), Office of the Institute of Preventive tvledicine, Hyderabad, Government have provisionaily taken a decision to impose a penalty of withholdin g of lOo/o Pension under rule 9 of Telangana State Revised Pension Rules, 1980. Accordingly, a Show Cause Notice was issued to the charged officer calling for his explanation vide reference Bth read above.

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Whereas, in the reference 9th read above, the Director, Institute of Preventive Medicine Public Health Labs and Food (Health) Administration, Hyderabad has forwarded the explanation of the charged officer to Government. After examinrng the explanation of the charged officer, Telangana State Publir: Service Commission, Hyderabad who were consulted in the matter, vide reference 1Oth read a bove.

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Whereas, in the reference 1lth read above, the Principal Secretary, Telangana State Public Service Comrnission, Hyderabad has conveyed the opinion of the Commission and advised accordingly. Gover nrnent have examined the matter keeping in view the opinion of the Telangana State Public Service Commission and observed that the charged officer has been awarded with another major punishment earlier stoppage of increment and for the same mistake has been repeated. The mistake of hiding Facts from employer without seeking permission from the department intentionally.

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And rarhereas, Government after due exafiTination of the entire Issue, have taken a decision to Impose a penalty of 5Oo/o cut in pension permanently against Sri Syed Abdul Quiyum, Senior Analyst (Retired) and issued a revised show cause notice vide reference 12th read above. The

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explanation of the charged officer is received vide reference 13th read above.

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B. Now, therefore, in exercise of the powers conferred under rule 9 of the Telangana Revised Pension Rules, 1980, Government hereby impose a penalty of 50o/o cut in pension permanently against Sri Syed Abdul Qaiyum, Senior Analyst (Retired), Office of the Directorate of Institute of Preventive Medicine Public Health Labs and Food (Health) Administration, Hyderabad.

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The Director, institute of Preventive Medicine Public Health Labs and Food (Health) Administration, Narayanaguda, Hyderabad shall take fu rther action accordingly.

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DISCUSSION AND CONCLUSION:-

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Learned counsel appearino on behalf of the petitioner primarilv contend s that the imouoned order dated 13.O4.2O22, oassed bv resoondent No.1, is liable to be set aside for the followinq reasons:

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i) The order impugned is bereft of reasons.

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ii) The impugned order clearly indicates that the explanation furnished by the^petitioner, vide^letter dated 07,03.2022 in response to the show cause notice dated 16.02.2022, was not considered at^{all, as the} order does not discuss any aspect of the^said explanation. The impugned order is based solely on^the

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opinion of the Telangana State Publir: Service Commission, and the Government has not examined the matter independently, as indicated at paragraph No.6 of the impugned order dated 13.04.2022.

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Learned Assistant Government Pleader,^placi,rg reliance on the averments made in the counter affidavit, submits that the enquiry report had held against the petitioner and, therefore, the 'mpugned order has been passed in accordance with law and warrants no interFerence by this Court

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A bare perusal of the enquiry report clearlv indicates that no witnesses were examined in the present case, and the entire proceedings initiated against the petitioner were based solely on the letter of the Additional Commissioner of Police, Special Branch, Hyderabad, in Referenr:e No. SP/A2/2345/?-0--5, dated 26.02.2016-09.03.2016 and admittedly, as borne on record, the said officer concerned had not been examired at all

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A bare perusal of the record clearly indicates that the person who issued the letter, i.e., the Additional Commissioner of Police, Special Branch, Hyderabad, had not

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been examined at all in the present case. The disciplinary proceedings initiated against the petitioner were based solely on the enquiry report dated Ll.12.2017, which also reveals that no witnesses were examined. In view of the fact as borne on record, that the Enquiry Officer submitted his report dated LL.12.2017 without examining the person who issued the letter and without proving the genuineness of the said letter or the allegations levelled against the petitioner, this Court is, therefore, of the opinion that the entire disciplinary proceedings stand vitiated.

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This Court opines that the individual who lodged the complaint against the petitioner must necessarily be examined, and the non-examination of such complainant amounts to a violation of the^principles of natural^justice. Further, proof based on preponderance of^{probabilities} is not justified. It is a settled principle of law that the burden lies on the disciplinary authority and on the^person who^{laid the} charge to establish the same with^{relevant evidence.In the} present case, admittedly, even as per the enquiry report, this has not been done.

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1O. RelevantJudoments:

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A) The relevant oortion of the iudoment oi thi s Cou rt dated 19.01.1997 in "N.Su bramanvam Vs. Chairm a n, Visakhap atnam Port Trust and Others" reDorted in 1998 (2) ALD 59_9_ is extracted hereunder:

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"15. Learned Counsel for the petitioner contended that there was no positive evidence available before the enquiry officer to hold the petitioner guilty of the charqe. A reading of the report of the Enquiry Officer, at Para 6 under the caplion "analysis of evidence" fails to impress this Court that there was any evidence before the Enquiry Officer to hold the petitioner guilty of the charge. The second witness S.W.2 who was examined on behalf of the management deposed lhat as per the report of the Head Master of C.B.M. High School, which is nrarked as S.Ex.4, the entries in the transfer certificate (S.Ex.2) produced by the petitioner are not tallying with the entries made in the admission register for the year 1960-61 maintained in the C.B.lvl. High School. However, the only competent person to speak about the genuiness or otherwise of the entries n the transfer certifacate produced by the petitioner with reference to the original admission register for the year 1960-61 is the Head Master of the C.B.M. High School. Unfortunately, the management did not chose to examine the Head Master of the C.B.[1. High School for the reasons best known to them. Had the said Head Master been examined on behalf of the management. His evidence could have thrown any amount of light on the transfer certiiicate produced by the petitioner and the petitioner would have got an opportunity to crossexamine him, Basing on the letter written by the Head Master dated 27-t-1992 the respondents have held the charge proved against the petitioner and imposed the penalty of compulsory retirement from service. When such a severe punishment is imposed only on the basis of the letter dated 27-l-1992 written by the Head llaster of the C,B.lv1. High School, it shocks the conscrence of the Court as to how such a major penalty could be imposed on the petitioner without there being any evidence supporting the version of the management.

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In Habeeb l\4ohammed's case (supra) the Supreme Court has held that withholding a witness from examination would cast a serious reflection on the fairness of the trial. In the Dreseot case, the resoondents should have discharoed their burden bv examinino the crucial witness like the Head the C. .M Hi h School. The r n n simDlv cannot throw the burden on the etitioner. In Tika Ham ndS n L (suora), the Suoreme Court has held that when a charqe is made aoainst a delinquent, the burden to prove the charqe initially rests on the authority which charoes the delinouent and it cannot be shifted totallv on the delinouent.

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Applying the ratio Iaid down by the Supreme Court in the above decision to the present case, I do not think, the Enquiry Officer had any evidence worth the salt before him to reach to the conclusion to d€clare that the charge against the petitioner is proved. Basing on the report of the Enquiry Officer, the third respondent has passed the order of compulsory retirement on the petitioner with effect from 19-2-1994. It is by now well settled that the disciplinary authority has to give necessary reasoning either for accepting or rejecting the report of the Enquiry Officer. A reading of the order passed by the third respondent- disciplinary authority which is dated 19-2-1994 imposing the punishment of compulsory retirement from service on the petitioner fails to convince this Court that the third respondent has applied his mind at all while imposing such a major punishment."

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B) The relevant oortion of the^judoment of this Court dated 2O.O9. O12 oassed in W.P.No.83 3 of^{2OO3 is}

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extracted hereunder:

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"The gravaman of the charge Framed against the petitioner was that he has produced a bogus educational certificate from the Z.?. High School at Medikonduru. The basis or the inspiration for drawlng this charge against the petitioner appears to be the entry made in his service register. In reply to the charge sheet, the

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petitioner has stoutly disputed that he has produt-r-'d any such certificate. On the other hand, to convin(re the authorit.ies that he is not guilty of any such allegal on. he asserted that he has produced copy of the transfer certificate bearing No. 102, dated 16.04.1976 issrled by the Z.P. High School at Chandalur, Guntur Uistrict. Therefore, what emerges is, the petitioner has totally denied his involvement in producing any such ce'tificate and hence, the burden was lying heavily on the Company, which framed the charge against the petitioner to establish the same. At the disci:linary enquiry, it is for the person, who has laid the cha:ge, to bring it home with some relevant evidence. It is no doubt true that when the Divisional Engineer lvrote a letter on 1,7.02.1999, the Head Master of the Z.F'. High School at lt4edikonduru, through his commurricatlon dated 17.02.1999, has declared that the transfer certificate bearing No. 192 with admission No. 5642 is not issued by the said school and that the adnission number does not relate to the petitioner at all. .]ence, the Divisional Engineer ought to have first of all brought some material to establish that the certificate t,earing No. 192 with admission No.5642 has been prodtr:ed by the petitioner at the first place. It is all the more important to establish this fact, inasmuch :rs the petitioner has completely denied any such kno flledge. His case was that he has produced a certificate bearing No. 102 daled 16.04.1976 from the Z.P. High School, Chandalur. Therefore, no attempt has been made by the Company to demonstrate during the enquiry proceedings that the petitioner never produced transfer certificate No. 102 from the Z.P. High School, Chandalur ano on the other hand, he has produced the certificate bearang No. 192 from the Z.P. High School, Medikonduru. Im.rgine a situation where the particulars contained in an'l such transfer certaficate produced by any other employee may have been wrongly entered in the service register of the employee, the employee cannot be blamed for it, for, he has no control over the making of the entries in his service register. Entries in the service register arr' made by those in-charge of the establishment. Those entries may have been prepared by some ministerial assistant and must have been authenticated by somt: other officer. In that exercise, the petitioner does not have any role to play. If the petitioner has confronted the Company with an altogether different fact, the burden

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lies on them to bring home the charge with reference to the relevant material. Far from discharging this burden, the Enquiry Officer has merely proceeded to get guided by the entries made in the Service Register. The fact that the entries in the Service Register could be erroneous or rnade mistakenly has not been kept in view by the Enquiry Officer. Therefore, the approach of the Enquiry Officer as well as the disciplinary authority is totally erroneous. On his part, the petitioner has established his defence by producing a copy of the transfer certificate bearing No.102 issued by the Z.P. High School, Chandalur. He could not have proved the negative that he has not studied at the Z.P. High School, Medikonduru. He can only prove the positive and in that regard, he has produced the certificate bearing No. 102 issued by the Z.P. High School, Chandalur. Therefore, in my opinion, the entire enquiry proceedings are vitiated for non-applicatlon of mind on proper Iines both by the Enquiry Officer as well as the disciplinary authority. No attempt is made by them to identify as to how entries were made in the Service Register relating to the petitioner and the basjs for making such entries. Illustratively put, if a certificate is produced by some other employee, who studied at the Z.P. High School, Medikonduru and out of oversight or confusion, the particulars relating to the said certlficate are entered in the service register of the petitioner, the petitioner cannot be faulted for such an exercise, nor can he explain as to how such particulars gained entry in his Service Register. Therefore, instead of merely placing reliance upon the entries made in the service record, in a case of this nature, something more ought to have been done by the respondents. For their sheer failure to bring home the charge, with reference to the relevant material on record, all I need to do is to declare the report of the Enquiry Officer as lacking any basis, much less a su bstantial and valid one. The order of imposition of DUnrshment of dismissal from^serviceis the^result m lete a t h di lina authoritv with the findinos of the Enouirv Officer. Hence, the id order of Dunishment of d ismissal p v the Divisional Enqineer on^24.O1.2r)()2 deserves to be set aside. Conse^quently, the^orders passed by the Superintending Engineer rejecting the appeal of the petitioner on 22.O7.2002 and the rejection of the petition by the Chairman and Managing Director of

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the Company on 16.12.2002 are also not sustainable^as the very basis namely the order of imposii,'on of punishnent of dismissal is knocked down now. Consequently, a declaration will be issued th,rt the petitioner will be treated to have continued in :;ervice with ef fect from 24.01.2OO2."

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C) The r:el_evant^portion of th _^{this Court} dated 23.11.2018 Dassed in W.P.No.1225^,if 2O07 is

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extracted hereunder:

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"6. This Court having considered tl'e rival submi:;sions made by the parties is of the view^r.hat the post in which the petitioner was initially apporn::d does not require any educational qualification, excepl reading and wnting, Moreover. the department officials are the persons to speak anything as to the genuinener;'; of the educational certificates produced by the petitiorrer, but none of the officials, who are alleged to have stated that the certificate produced by the petitioner was boqus, was examined in the enquiry. Except relvino on the letter addressed bv D.E.O, wherein it was stated that the rtifi<: rod b h e n r is fak h respondents have not enquired the^perso were resoonsible for issuino such certificate. The petitioner was asked to produce the certificate of educational qualification and when he prodL(;ed the certificate during the course of enquiry, the enqui:y officer held that the certificate produced during the cours;e of oral enquiry cannot be taken into consideration since he was promoted as Assistant Lineman and Lineman basing on the education certificate produced by him urh ch was confirmed as bogus certificate by the DEO, Machilif,atnam, and the alleged fake certificate was not produced before the enquiry officer. The finding recorded by the enquiry officer is perverse. The disciplinary authority and appellate authority passed the order of dismissal based upon such perverse enquiry report. Further, the punishrnent of dismissal is shockingly d isproportionate to the proved misconduct, which was based on perverse findings of the enquiry officer. Apart from that, the respondents,:ught to have examined the case of the petitioner as to whether the qualification, for which the petitioner is alleged to

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have produced a fake certificate, is relevant qualification for the purpose of securing employment. Since the respondents have not considered the above aspects, the proceedings impugned are liable to be set aside."

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In view of h fa h h r n passed bv respondent No.1, does not andicate anv consideration of the explanation furnished bv the er dated o7.O3.2022 tn charqed officer vide le response to the show cause notice dated 16.O2.2O22, and further in view of the f ct that the order imouoned is bereft of reasons and is based solelv on the opinion of the Telanoana lState Public Service Commission resDondent No.1 without exercisin o 1tt res DOn dent's mind indeoendentlv, as clearlv admitted in^paraoraph No.6 of the imouqned order dated L3.O4.2O22. and also tn vrew of the fact that the^rre r^sc) nwhoi^ssrrefl the comDlaint aqainst the oetitioner was not examined at all to orove the oenuineness of the letter n the basis of which the disciolinarv Droceedinqs were initiated aqa in st the oetitioner, thi Court is opines that the entire enouirv oroceedi nos initiated^aqinstthe Detitio n er is illeqal, vitiated, and^unsus inable,

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L2. This Court further opines that in viern,of the fact that more than four⁽⁴⁾ vears have lapsec since the date of the^petitioner's retirement and the resoondents have ngt^paid any termrrr a I benefits such a:;^qratuity, dv eof nst n nd r r t :!n n h petitiorler" is entitled to receive the sanle as^per petitiolerl s I ent in accordance t,: law.

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Takiqg_ into consideration:-

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The aforesaid facts and circumstarrces of the a)

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ca se,

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b) The submissions made by the learned counsel appearing on behalf of the petitioner and the learned Assistant Government Pleader for Services-II appearing on behalf of the respondents,

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c) The observations of this Court in the various judgments (referred to and extracted above) and again enlisted below:

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(i) 1998(2) ALD soe

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(ii) W.P.No.8343 of 2OO3

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(iii) w.P.No.L225 of 2OO7

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d) In the light of discussion and conclusion arrived at para Nos. 5 to 12 (referred to and extracted above)

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The writ oetition is a llowed. The imouoned order i.e., G.O.Rt. No.218, Health, Medical and Fam lv We lfa re 2 e artmen dat 1 4.2 2 resDondent No.1. is herebv set-aside. The respondents are directed to release all the terminal benefits due to the oetitioner. which have been withheld for the last four vears in view of the oendencv of the disciolinarv Droceedinqs, as observed in the oroceedinos dated 30.O7,2018 of the Director, Institute of Preventive Medicine, Telanoana Public Health Labs & Food (Health). addressed to the Principal Secretarv, Welfare DeDartment, Telanqana S ate. Hvderabad, within a period of four⁽⁴⁾ weeks from the date of receipt of a copv of this order, as oer the^{petitioner'sleoal} entitlement in accordance to law. However, there shall be no order as to costs.

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