THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY and THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY
WRIT APPEAL No. 1197 of 2014
% 11.08.2014
Between:
# Sri Venkateswara University and others.
Versus $ Sri O.Ramasudarshana Reddy and another.
....
APPELLANTS ...RESPONDENTS < Gist:
> Head Note:
! COUNSEL FOR THE APPELLANTS :- Sri P.Govind Reddy ^ COUNSEL FOR RESPONDENT :- Sri M.Panduranga Rao ? Cases Referred:
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY WRIT APPEAL No. 1197 of 2014
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
This writ appeal is filed by respondent Nos.1 to 3 in W.P.No.7478 of 2002. Respondent No.1 herein filed the writ petition challenging the order, dated 11.02.2002, passed by the appellants herein directing his removal from service. A learned Single Judge of this Court allowed the writ petition through judgment, dated 20.01.2014.
The facts in brief are that respondent No.1 was appointed as Attender on 03.10.1968 in the appellant-University and was promoted as Lower Division Clerk in the year 1974. On the allegation that he was involved in acts of grave misconduct, such as that he was instrumental in admitting as many as 10 candidates into 24th Convocation, though they did not obtain pass marks and that he committed similar irregularities in relation to 25th, 27th and 30th Convocations, he was placed under suspension through order, dated 04.04.1987. Thereafter, he was removed from service on 12.11.1987. The order of termination was set aside in W.P.No.5088 of 1988 by a Division Bench of this Court through order, dated 26.10.1999, on the sole ground that it was not preceded by a departmental enquiry. Thereafter, the appellants appointed respondent No.2 herein, a retired District Judge, as an Enquiry Officer. Respondent No.2, in turn, conducted enquiry and submitted a report on 03.11.2000 holding that the charges against respondent No.1 are proved. Taking the same into account, the appellants passed an order, dated 11.02.2002, removing respondent No.1 from service. The same was challenged in W.P.No.7478 of 2002.
Respondent No.1 pleaded that the very appointment of respondent No.2 as Enquiry Officer is contrary to law and that the findings recorded by him are untenable. He contends that the Convocation has taken place strictly in accordance with law and no objection was raised at any point of time. He has also filed miscellaneous petitions claiming the benefit of full salary for the period during which he was kept out of service.
The appellants filed a counter-affidavit opposing the writ petition. They stated that the acts resorted to by respondent No.1 are very serious in nature and that he was instrumental in conferring degrees upon quite large number of persons, though such candidates have failed in the examinations. According to them, the objection as to appointment of Enquiry Officer was not raised till the writ petition was filed and it cannot be entertained at this stage.
The learned Single Judge did not accept the contention of respondent No.1 as to the legality of appointment of respondent No.2 as Enquiry Officer. He has also refused to interfere with the findings recorded by the Enquiry Officer. However, the learned Single Judge observed that though disciplinary proceedings in relation to scandal were initiated against respondent No.1 as well as two other employees, by name Sri G.Lakshminarayana Reddy and Sri A.Selvarajan, through its resolution, dated 02.09.1997, the Syndicate of the University directed termination of the services of respondent No.1 even while it let off the other two persons, with a warning. It was observed that respondent No.1 has only assisted the other two employees and in that view of the matter, imposition of penalty of removal from service against him is disproportionate, untenable and contrary to law. Accordingly, punishment of removal from service was set aside and the one of withholding of two annual increments with cumulative effect was imposed against respondent No.1. The relief of reinstatement with continuity of service and attendant benefits was granted.
Sri P.Govind Reddy, learned counsel for the appellants submits that once the charges framed against respondent No.1 were held proved and the learned Single Judge concurred with them, there was absolutely no basis for setting aside the order of removal. He contends that the Syndicate has taken into account, the involvement of respondent No.1 on the one hand and other two employees on the other, and imposed suitable punishment and there was no basis for drawing similarity with them. He submits that the theory of proportionality and arbitrariness does not at all fit into the facts of the case and the learned Single Judge ought not to have interfered with the punishment of removal of respondent No.1 from service.
Sri M.Panduranga Rao, learned counsel for respondent No.1, on the other hand, submits that respondent No.1 has worked only as a Lower Division Clerk at the relevant point of time and a certificate of degree can come out only on being signed by the important authorities, such as Controller of Examinations and Registrar. He contends that the appointment of respondent No.2 as Enquiry Officer itself was contrary to law, since the Rules do not contemplate any outsider being appointed as Enquiry Officer. He submits that the learned Single Judge has taken all the relevant factors into account, and granted the relief, even while imposing suitable punishment and that no interference is warranted.
One of the grounds urged by respondent No.1 was about the very appointment of respondent No.2, as Enquiry Officer. It has already been mentioned that the University passed an order in the year 1987 itself removing respondent No.1 from service and that the same was set aside by this Court in W.P.No.5088 of 1988 on the sole ground that the order of removal was not preceded by enquiry. That prompted the University to appoint an Enquiry Officer.
It is true that the University has its own set of Rules that prescribe the procedure to be followed in the disciplinary proceedings. However, obviously because the matter was a bit complicated and there is no prohibition under the Rules against the taking assistance of experienced persons, respondent No.2, a retired District Judge was appointed as an Enquiry Officer. The following charges were framed:
Charge No.1:That you while working as Junior Assistant in Examination branch, S.V. University, Tirupathi in the year 1981 along with Lakshminarayana Reddy, admitted Sri B.Prasad Reddy and 10 other students who were ineligible candidates by doing malpractice with oblique motive to 24th convocation by giving more marks than the marks secured by them. The said Prasad Reddy secured marks actually in the first year examination bearing No.2382 in Part-II Business Organisation and Management 20 marks as per tabulated register extract and the marks statement as 35 marks. The candidate secured in English-II 27 marks but in the statement of marks, shown as 35 marks, the same candidate actually obtained marks in PU Advanced Accountancy 29 marks and in the marks statement, it is shown as 35 marks, in the 3rd year B.Com., the said Prasad Reddy secured 28 marks in Part-II P-IX Advanced Accountancy-II but in the marks memo, mentioned as 35 years in order to have wrongful gain for yourself and wrongful loss to the University which is unbecoming of a University employee and that you thereby rendered yourself for disciplinary action under Chapter 22 of LAWS of the University and 72 of SVU Service (Discipline Control and appeal) and Rules.
Charge No.2: That you while working in Examination branch of S.V.University along with Lakshminarayana Reddy, admitted Sri Sk.Sabson, Sri N.Venkatasubbaiah, Sri B.Ravindra Reddy, Sri B.Rajendra Prasad, and 6 other students, who are ineligible candidates by doing mal-
practice to 25th convocation by giving more marks to them, than the marks secured by them, i.e. Sk.Sabson obtained 25 marks in English paper, but as per statement of marks, 35 in B.Com 1st year; in the 2nd year B.Com the said Sk.Sabson secured 26 marks in English Part-III, but in the marks statement it is entered as 36 marks. In the 3rd B.Com., the same candidate secured 26 marks in Advanced Accountancy, but as per the statement of the marks, it is shown as that he got 36 marks. In the B.Com., 3rd year in Part VII Business Statistics he secured 20 marks, but shown in the statement as 35 marks. Sri N.Venkatasubbaiah secured 18 marks in Part-I English-II, but shown in the statement of marks as 35 marks; Sri B.Ravindra Reddy secured 22 marks in English Paper, but shown in the marks statement as 35 marks in B.Com. 1st year; in B.Com 2nd year he secured 30 marks in English Paper-II, but in the marks statement, it is mentioned that he got 35 marks; in English Paper III, he secured actually 12 marks; but as per the statement of marks, he got 35 marks; Sri D.Rajendraprasad secured 29 marks in English Part-II, but shown as 35 marks in statement of marks, in order to have wrongful gain for yourself and to cause wrongful loss to the S.V. University, which is unbecoming of an University employee and that hereby rendered yourself liable for disciplinary action under Chapter 22 of Laws of University and 72 of S.V. University Service (Disciplinary, Control and Appeal) Rules.
Charge No.3: That you while working as Jr.Assistant along with one Selvarajan, admitted Sri C.N.Ravindranath Reddy B.Com ineligible candidate to 27th convocation by giving more marks than the marks secured by him in order to have wrongful gain to yourself and to cause wrongful loss to University, which is unbecoming employee of S.V.University and that you thereby rendered yourself liable for Disciplinary action under Chapter 22 of Laws of University and 72 of SV University Service (Disciplinary Control and Appeal) Rules;
Charge No.4: That you while working as Jr.Assistant in examination branch along with Selvarajan, admitted 8 B.Com. students and 3 B.Sc. students to 30th convocation by adding more marks than the actual marks secured by them in order to have wrongful gain for yourself and to the University and that which is unbecoming of an University employee and that you thereby rendered yourself liable for Disciplinary action under Chapter 22 of Laws of University and 72 of SV University Service (Disciplinary, Control and Appeal) Rules.
The enquiry Officer submitted a report. Charges 1 and 2 are proved and charges 3 and 4 are not proved.
In case respondent No.1 has any serious objection about the appointment of respondent No.2 as Enquiry Officer, he ought to have raised it, as soon as he received notice of appearance. Not only he did not do so, but also participated in the enquiry without any demur. Adequate opportunity was given to him in the course of enquiry. It is only after the enquiry was concluded and the punishment was imposed on the basis of the findings therein, that respondent No.1 raised an objection for appointment of respondent No.2 as Enquiry Officer.
What is essential in any proceedings against an employee is that any punishment can be imposed only after departmental enquiry is conducted. It is a step to ensure compliance with the principles of natural justice. The Rules or Regulations, which indicate the procedure to be followed in this behalf, are mostly supplementary to the basic requirement under law. The requirements, such as that an Enquiry Officer must be the one who is superior in rank to the delinquent employee, are prescribed to ensure fairness and objectivity. Small lapses in this behalf do not have the effect of rendering the proceedings void.
The appellants seem to have derived inspiration from the fact that whenever enquiries into serious matters in the Government and other agencies are ordered, the services of the Judicial Officers, retired or otherwise, are availed and accordingly, have chosen respondent No.2. No serious irregularity can be said to have been taken place, particularly when no rule is cited in support of the contention. Secondly, respondent No.1 has acquiesced in such appointment. Learned Single Judge also, did not find fault with the appointment of respondent No.2 as Enquiry Officer.
Coming to the merits of the matter, a peculiar situation is noticeable. The learned Single Judge made a categorical observation to the effect that he does not intend to interfere with the findings of the Enquiry Officer. Relevant portion reads as under:
“A reading of the enquiry report discloses that the learned fourth respondent placed reliance upon enough material before him to conclude that the petitioner was guilty of charges 1 and 2 levelled against him and was not guilty of charges 3 and 4. I do not find any ground to interfere with the finding of the Enquiry Officer. Indeed, P.W.1 was alleged to be a co-delinquent but his evidence was appreciated by the fourth respondent having regard to the fact that he was a co-delinquent. I, therefore, see no reason to differ with the report of the Enquiry Officer in this context.”
The charges have already been extracted in the preceding paragraphs. They are grave in nature and the charges that were held proved, cover two Convocations, in which respondent No.1 is said to have become instrumental in conferring degrees on 10 candidates in 24th Convocation and another 10 candidates in 25th Convocation, though those candidates have failed in the respective examinations. It is not difficult to imagine the gravity of such a serious misconduct. However, on the ground that the Syndicate of the University has let off two employees, by name Sri G.Lakshminarayana Reddy and Sri A.Selvarajan with a warning, even while imposing punishment of removal upon respondent No.1 in the year 1987, learned Single Judge opined that the punishment of removal is shockingly disproportionate. It is important to note that the said finding was not on the appraisal of the acts of proven misconduct. The relevant paragraph reads as under:
“In comparison with the punishment, the penalty imposed against G.Lakshmi Narayana Reddy and A.Selvaran, the penalty imposed against the petitioner is shockingly disproportionate and deserves to be interfered with. I consider that imposition of penalty of withholding of two annual increments with cumulative effect would meet the ends of justice, where the assistance of the petitioner who were more or less went scot-free. I opine that the appointment of fourth respondent is within the disciplinary Rules of the University. I also hold that the finding of the fourth respondent that the petitioner was guilty of charges 1 and 2 is correct and does not require to be interfered with. The punishment recorded against the petitioner is shockingly disproportionate and is liable to be set aside.”
We do not subscribe to the view expressed by the learned Single Judge.
As a matter of fact, the imposition of punishment upon respondent No.1 and giving a warning to the employees discloses the objectivity, on the part of the Syndicate. Further, though what was impugned in the writ petition was an order of removal, dated 11.02.2002, the learned Single Judge took the resolution, dated 02.11.1987, passed by the Syndicate into account. A charge, which is otherwise grave, does not become moderate, on comparison with the disciplinary proceedings initiated against the other employees. If the exoneration of an otherwise guilty employee is wrong, the attempt must be to bring him to book, than to let off others, who were found guilty. Even where the High Court, in a writ petition finds that the punishment imposed against an employee is disproportionate to the act of misconduct held proved, the matter has to be left to the employer for consideration. It cannot, by itself, substitute a punishment of a different description.
On the facts of the case, we are of the clear view that the charges that were held proved against respondent No.1 are grave in nature and the punishment imposed cannot be said to be disproportionate to the charges.
Therefore, we allow the writ appeal and set aside the order passed by the learned Single Judge. There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
L.NARASIMHA REDDY,J T.SUNIL CHOWDARY,J Dt:11.08.2014 Note: L.R. copy to be marked. kdl