IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH TUESDAY THIS THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.4913 of 2002 Between: K.Gangulappa . PETITIONER And The Tirumala Tirupati Devasthanams, Tirupati, rep.by its Executive Officer, Holding his office at Tirupati . RESPONDENT The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.4913 of 2002
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Certiorari to quash the proceedings of the respondent passed in ROC No.DA4/12922/94, dated 06.02.2002 on the ground that they are illegal, arbitrary, unreasonable and violative of Articles 14, 21 and 311 of the Constitution of India.
2. It is submitted by the petitioner that he was appointed as Surveyor in the respondent Devasthanam in 1974 and basing on the false complaints made by his opponents, a charge memo was issued to him imputing the following charges:
Charges framed in Roc.No.DA4/12922/94 dated 03.07.1995 Charge No.1 That you have acknowledged certain records on behalf of M.C.Sunanda under CA No.41/87 of the Collectorate, Chittoor, which were filed in W.P.No.13552/92 on the file of HC, Hyd., A.P., filed by A.Balaji Iyyengar and others against the TTD as exhibited by the petitioners on behalf of M.C., Sunanda and appended your signature in as witness in possession of receipt of TTD land handed over to Sri P.Ramachandra Reddy and others in S.No.7/2-A at Tirupati and H.R.Mutt land handed over to TTD in S.No.57/3 at Tirupati town while working at Tirumala, colluding with M.Chakrapani Rao, AEO(Retired) TTD, though the matter relates to Tirupati and gained some personal benefit from them and thus exhibited misconduct;
Charge No.2 That you did not inform regarding the encroachments at peruru tank though it is your lawful duty to inspect properties of TTD regularly and submit reports regarding encroachments and thus exhibits gross dereliction and negligence to duty;
Charges framed in Roc.No.DA4/12922/94, dated 04.04.1997 Charge No.1 That though specific instructions were issued to you to reject the encroachments in several areas you did not evince proper interest and on the other hand you have instigated others to file W.P. acting hands in glove with M.Chakrapani Rao and thus acted detriment and derogatory to the institution and thereby revealed gross misconduct. You have not submitted compliance reports in several cases;
Charge No.2 That though a communication bearing Roc.No.Rev.2/30250/86 dated 29.05.1995 was communicated to you, you did not bestow proper attention and give befitting explanation and thereby proved to be insubordinate and disobedient towards your superiors;
Charge No.3 That though you were directed in Memo dated 01.02.1995 to meet Municipal as well as Revenue Mandal Authorities and obtain the requisite particulars and furnish them with your detailed report within a week. But you in spite of several reminders you did not care to gather the said particulars and furnish them and thereby revealed gross misconduct and irresponsible and as well as insolent attitude;
Charge No.4 That after a lapse of couple of months on 22.03.1995 you have submitted compliance report stating that the property covered by charge No.3 was a private property bearing D.No.31 classified as dry house site and no useful information could be gathered. To elicit correct information by Memo dated 20.05.1995, you were directed to meet Sri Venkata Reddy, Ex.V.M and obtained his written statements regarding Chengalrao Thota in T.S.No.2207. Even for this you did not care to respond till you were reminded on 22.07.1995. You have submitted a compliance report stating that Sri Venkata Reddy, Ex.V.M. died long ago in the year 1985 and so he could not gather the relevant particulars desired by the authorities. Enquiries revealed that Mr.Venkata Reddy, Ex.V.M. was actually alive upto 22.05.1996 but you have given a false report stating that the said V.M. expired long back which is unbecoming on your p a r t and reveals your callous impertinent and irresponsible attitude;
Charge No.5 When you were deputed to Thati Thopu from 18.07.1996 to 21.07.1996 to conduct survey and planting of stones and allied work, while presenting the T.A. bill you have mentioned the distance from Tirupati to Thatithopu as 12 kms and claimed D.A. @ Rs.40/- per day, but it was revealed that the distance between Tirupati to Thatithopu was only 6 kms.
Charge No.6 That you were deputed to Shantipuram, Chittoor District to assist Sri S.Chakrapani Achari, AEO (Rev.) in taking possession of the land to avoid complications. On 03.07.1996 possession was taken from the Asst.Commissioner, Endowments, CTR, but it was noticed that you did not append any signature, even though B.Subramanyam Naik has appended his signature as witness thus you have disobeyed the instructions to assist the D.R.O. and proved to insubordinate;
Charge No.7 That possession was taken of immovable property measuring an extent of 0.36 cents in S.No.90/2 from the donor G.Sreenivasulu Reddy out of one acre vide documents No.2475/87, dated 19.11.1987 without verifying the title of the property before taking possession as culmination of which a lawyer notice on behalf of Director, Pragathi Silks Pvt.Ltd., stating that possession was taken is not the property of the donor G.Sreenivasulu Reddy and it belonged to Pragathi Silks Pvt.Ltd. Thus you proved to be neglect in the discharge of your esteemed duties;
Charge No.8 That though you were transferred to Tirumala you did not hand over the two wheeler under your use and enjoyment to the Superintendent, Revenue Section and was utilizing the said vehicle for your personal use besides getting the petrol from the vehicle section, with a mala fide intent to defraud the institution, thereby revealed misconduct;
Charge No.9 Though S.Venkatachalam, Inspector of Survey has sent a Chairman to Transport on 31.10.1996 to get petrol for the Moped issued to him for official field work, the request was abnegated on the plea that you have already managed to secure petrol for the vehicle and your enjoyment, and thereby revealed misconduct. Though you were called on to explain as per ref.Prop.4/41558/96, dated 06.11.1996, though you have acknowledged the said ref., you did not care to submit your explanation within the time stipulated and submitted after lapse of 20 days stating that you did not know that the Moped AAC.4842 was allotted to S.Venkatachalam who retired from service and reappointed as consultant. You have also added that you took two litres of petrol on 30.10.1992 for official use since you were deputed to Revenue Section, Tirupati to attend survey work for the period from 26.10.1996 to 01.11.1996. You ought to have obtained prior permission, but you have failed to do so deliberately and proved to be unworthy;
Charge No.10 That C.Sekhar, Surveyor who has taken charge of the Moped from you had reported that it was not useful at all since all spare parts were totally condemned. It seems that the said vehicle was not properly utilized for the purpose intended and misused causing loss to the institution. This evidently speaks of the irresponsible attitude;
Charge No.11 Though you were directed to gather particulars of property enjoyers etc., in connection with acquisition of properties in spite of several reminders you did not evince proper interest and discharged your legitimate duties cognizant of the fact that the matters were of utmost importance one in nature as a culmination of which 40 to 50 files were kept pending for want of report;
Charge No.12 You have given the title deed in respect of immovable property belonging to Tallapaka family to Tirumala by taking away the said file bearing LS7/48283/90, on 22.01.1990 from the chamber of E.O. and basing on the said document the said family got succeeded both in the High Court and Supreme Court, thereby revealed your misconduct;
Charges framed in Roc.No.DA4/27384/98, dated 17.09.1998.
Charge No.1 That you have been directed by the Estate Officer, TTDs to take over possession of the above said lands to an extent of Ac.5.03 and survey the properties physically for making necessary entries in property register. You have taken over the above said property on 08.07.1995 and handed over to Sri B.Bhaskara Reddy, VAO, Damarapakam and keeping the office in darkness.
Until and unless M.R.O., Nagiri send a petition received by him, Estate Officer is not aware of the facts. When Sri P.Bhaskara Reddy, VAO was enquired, he admitted that you have handed over the above TTD property to him and allowed him to grow sugarcane crop. It shows that you have connived with VAO and handed over the land to him with a mala fide intention which exhibits your breach of Trust;
Charge No.2 That in spite of the instructions of Estate Officer to do survey of lands take physical possession of the land and enter the particulars in properties register, you have evaded to do survey with ulterior motive;
3. In spite of repeated representations, the petitioner submits that the relevant records basing on which the charges have been framed against him were not furnished. However, subsequently he submitted explanation and without accepting his explanation, the Enquiry Officer was appointed. The Enquiry Officer out of 16 charges held that 7 out of them are proved, 2 out of them are partly proved. The remaining charges were either held to be not proved or withdrawn as there is no substance in the charges. On receipt of the report of the Enquiry Officer, the disciplinary authority vide proceedings dated 06.02.2002 passed an order of dismissal against the petitioner after issuing him a show cause notice and receiving explanation from him. In this context, it is submitted in the affidavit filed in support of the writ petition that after receiving the enquiry report, though the charges themselves were not grave in nature, the disciplinary authority kept the enquiry report in the cold storage for 8 months and continued him under suspension then he was constrained to file W.P.No.20010/2001 questioning the attitude of the respondent in keeping him under prolonged suspension without taking any steps on the enquiry report. The said writ petition was disposed of on 16.10.2001 directing the respondent to pass final order within three months. The respondent did not pass final order within three months, however, ultimately passed final order on 06.02.2002 dismissing the petitioner from service.
4. The respondent filed counter affidavit contending inter alia that the charges leveled against the petitioner are grave in nature and they were held to be duly proved by the Enquiry Officer, no lenient view can be taken, and therefore, the impugned order does not require any interference.
5. The principal questions urged by the petitioner in the present writ petition are that the charges themselves are vague, the findings of the Enquiry officer are not based on any evidence and that the order of dismissal was passed against him as a measure of victimization. He also contends that the punishment inflicted against him is grossly disproportionate to the alleged misconduct which is liable to be set aside. As to the alternative remedy available to him by way of appeal to the Committee of TTD under Section 120(I) of Act 30/87, it is submitted by the petitioner that no Committee is constituted by the Government so far, there is only a specified authority which is headed by the Executive Officer who passed the impugned dismissal order, and therefore, it is not possible for him to avail the appellate remedy.
6. Considering the facts and circumstances of the case, it is relevant to peruse the enquiry report. The findings of the Enquiry Officer on the afore mentioned charges are as under:
7. Findings on the charges framed in Roc.No.DA4/12922/94 dated 03.07.1995;
Charge No.1 Partly proved and partly not pressed Charge No.2 Proved Findings on the charges framed in Roc.No.DA4/12922/94, dated 04.04.1997;
Charge No.1 Not proved Charge No.2 Not pressed Charge No.3 Proved Charge No.4 Proved Charge No.5 Partly proved Charge No.6 Not pressed Charge No.7 Not pressed Charge No.8 Not pressed Charge No.9 Not pressed Charge No.10 Not pressed Charge No.11 Proved Charge No.12 Not proved Findings on the charges framed in Roc.No.DA4/27384/98, dated 17.09.1998 Charge No.1 Partly proved, as per counter averments (No findings of the Enquiry Officer on this charge are placed on record) Charge No.2 Proved, as per counter averments (No findings of the Enquiry Officer on this charge are placed on record)
8. I have gone through the charges, enquiry report and also the final order passed by the respondent dismissing the petitioner from service. Out of 16 charges, only 5 charges are alleged to have been proved by the Enquiry Officer. Apparently, the charges are not specific, there is any amount of vagueness in the charges. The Enquiry Officer himself withdrew many of the charges on the ground that there is no substance in the charges. The remaining charges also do not attribute any specific misconduct to the petitioner, they relate to general performance of the petitioner and in my view, basing on such vague charges, it is not possible for the charged employee to submit appropriate explanation except making a formal denial of the charges.
9. The report of the Enquiry Officer does not show that basing on any material the charges were held to be proved. The Enquiry Officer merely stated the charge, the explanation offered by the petitioner and then gave findings according to his own imagination. Perusal of the enquiry report clearly shows that the findings are the result of non-application of mind of the Enquiry Officer and exhibits clear disregard of the Enquiry Officer to find out whether the charges have been proved against the petitioner basing on any evidence which is worth consideration. Obviously, the findings of the Enquiry Officer are based on surmises and conjunctures. The enquiry report also does not show that on what basis the Enquiry Officer held that the charges were proved. The charges should contain specific allegations so as to enable the charged employee to arrange his defence and the Enquiry Officer to examine the charges in the light of the evidence forthcoming at the time of enquiry. In the instant case, the Enquiry Officer himself states that he referred to certain documents but no such documents have been exhibited during the course of enquiry and no opportunity was given to the petitioner to meet the charges.
10. The Enquiry Officer curiously makes an observation that the petitioner failed to adduce any evidence to disprove the charges. Even though in a departmental enquiry the charge leveled against the employee can be proved by preponderance of probability, the employer cannot be relieved of the basic responsibility of proving the charge. In the instant case, without assigning any sufficient reasons, the Enquiry officer withdrew certain charges, held certain charges were proved against the petitioner and further held that some of the charges were partly proved and some were not proved.
11. Upon thorough examination of enquiry report, I do not find any basis for the Enquiry Officer to hold that the charges are proved against the petitioner. The Disciplinary Authority on receiving such report, without application of mind, by merely referring to the enquiry report, in a casual and mechanical way, passed the final order, dismissing the petitioner from service. Therefore, the proceedings of the authorities below suffer from serious irregularities which require interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. The impugned order dated 06.02.2002 being prima facie unsustainable in law is liable to be quashed, consequently, the same is quashed.
12. The Writ Petition is accordingly allowed. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
Date: 25.11.2014 R.KANTHA RAO,J Dsr