HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION NO.18291 of 2005 ORDER:- The petitioner herein is a former Record Assistant of Singareni Colleries Upper Primary School of Bhoopalapalli in Warangal District and it is run by the first respondent society. He filed this writ petition under Article 226 of the Constitution to set aside the proceedings in Ref.No.SCES/ Sec/2005/704 dated 16.04.2005 of the first respondent i.e. the Secretary of Singareni Colleries Educational Society dismissing him from service on the ground that they are illegal and to reinstate him into service with all back wages and attendant benefits. 2. A perusal of the impugned proceedings/order would show that a departmental enquiry was commenced against the petitioner on a charge that he misappropriated a sum of Rs.20,721.50ps of the first respondent’s school. In that departmental enquiry he contested the charge but at the same time he admitted the said charge but requested that the said amount be recovered from his salary at the rate of Rs.150/- per month and drop the enquiry as the short remittance was not due to his fault or any wilful misconduct on his part. The said charge was based on the detection of short remittance of the above amount. The impugned order shows that the said request of the petitioner was not accepted and he was found guilty of the charge and thereupon a second show cause notice dated 23.11.1994 was issued previously regarding the penalty proposed and ultimately as there was no satisfactory explanation the petitioner came to be dismissed from service by the impugned order. Even just prior to the impugned order a second show cause notice regarding the penalty was also given to the petitioner on 30.03.2005 and this will be mentioned a little later. 3. Three points are raised on behalf of the petitioner questioning the impugned order. The first is that the charge memo is dated 17.02.1987 and the misappropriation charge pertains to the year 1985-1986 and the enquiry was also held during 1992. It is pleaded under the first point that the second show cause notice proposing the penalty was issued on 23.11.1994 and the impugned order of dismissal was passed on 16.04.2005. Sri Kumara Swamy the learned counsel for the petitioner pointed out that the first respondent took nearly more than ten years to pass the impugned order of dismissal and therefore by reason of this delay itself it should be quashed. He also relied upon two decisions on this point and I shall refer to them while answering this point. 4. The second point is based on the direction given in W.P.No.13953 of 1988 by this court. A copy of the order dated 11.08.1997 passed in that writ petition is filed. A perusal of that order would show that the petitioner earlier approached this court by way of the above writ petition challenging the action of respondents in restraining him from attending the school with effect from 22.09.1987. The relief granted in the said writ petition reads as follows. “Hence, we dispose of the writ petition with a direction to the respondents to permit the petitioner to join duty with effect from 1.9.1997 positively and pay the salary and other allowances, if he is entitled to in law. However, the management is at liberty to hold enquiry as to his earlier absence whether his absence was voluntary or forcible one at the instance of the Head master and regarding mis-appropriation of amount. All other contentions are kept open.” Basing on the above relief granted, Sri Kumara Swamy pointed out that this court directed the respondents to hold an enquiry not only with regard to his alleged unauthorised absence but also regarding the charge of misappropriation of amount. The said order is dated 11.08.1997. Sri Kumara Swamy’s contention is that after the above order the respondents should have conducted a de novo enquiry and could not have acted on the enquiry ordered and conducted earlier and therefore the impugned dismissal order passed on the earlier enquiry is bad and is liable to be set aside on that ground also. 5. The third point is that in the case of another employee a lenient view was taken and therefore the same treatment should be given to the petitioner also and he should be taken back into service by taking a lenient view. 6. Sri N.Krishna Rao the learned counsel for respondents 1 and 2 basing on their pleadings raised the following contentions in answer to the above points raised on behalf of the petitioner. The first is that the first respondent-society cannot be treated as State or a public authority and therefore it is not amenable to writ jurisdiction of this Court under Article 226 of the Constitution. The second contention is that in the enquiry the petitioner admitted the charge and pleaded for an excuse offering to pay back the amounts from his salary in monthly instalments of Rs.150/- each and the enquiry was held according to valid procedure and since the petitioner himself has admitted his guilt and otherwise failed to prove his innocence, the question of delay does not invalidate the impugned order. It is also their plea that the service of the petitioner under the first respondent school is purely contractual and having regard to the misconduct of the petitioner the first respondent is within its power to terminate the service of the petitioner on the ground of loss of confidence. They also pleaded that the order in the above writ petition cannot come to the rescue of the petitioner and I shall deal with this aspect while answering this contention. Regarding the third point of the petitioner, the learned counsel for respondents 1 and 2 pointed out that the case of head master or the other employee mentioned by the petitioner cannot be compared with that of the petitioner as the said head master already retired from service. The learned Government Pleader appearing for the 3rd respondent supported the stand of the learned counsel for respondents 1 and 2. 7. Coming to the maintainability of the writ petition, the learned counsel for the respondents 1 and 2 relied upon a decision of this court given in BHEL HSS Staff Assn., BHEL, Ramachandrapuram v. BHEL, New Delhi[1] to show that the writ petition is not maintainable. In the said decision this court was dealing with the questions whether BHEL company can be directed to run the school as before with all the classes i.e. from LKG to XII class. After examining the matter it was held that though the said school which was run by the society therein was financially dependant upon the BHEL, it was held that it was not financially dependant upon any State Government or Central Government or any public fund and therefore the said society which ran the said school cannot be held to be amenable to writ jurisdiction as it is not a public authority. 8. In the present case Singareni Collieries company is also no doubt a Government of India undertaking but the first respondent is Singareni Collieries Educational Society which is stated to be registered under the Societies Registration Act, 1860. Nothing is brought to my notice to conclude that the first respondent society receives any money from the public fund or money from State Government or Central Government or that it is otherwise controlled in any manner by the Government either Central or State. Hence going by the above decision of this court the contention of the respondents that this writ petition is not maintainable has to be accepted and this is the first minus point for the petitioner. 9. It may however be noted that the writ petition is of 2002 and it has not been dismissed at the admission stage on the above ground. We are now in August 2011 and hence I propose to go into the merits of the matter also. Turning to the first point of the petitioner which is based upon the delay in passing the impugned order, it is true that the charge sheet or the charge memo issued against the petitioner is dated 17.02.1987, enquiry was conducted and report given in April 1992, the second show cause notice regarding the proposed punishment was issued on 23.11.1994 and the impugned order dismissing the petitioner from service was passed on 16.04.2005. It should be noted here that before passing the impugned order the Secretary of the first respondent again issued a second show cause notice dated 30.03.2005 calling upon the petitioner to give his explanation within 15 days from the receipt of that notice. The petitioner addressed a letter dated 28.04.2005 stating that he was hospitalised and requested time by sending an e-mail on 14.04.2005 to the head master of the school but was surprised to see the dismissal order. In any event there is a delay of ten years in passing the impugned order from 23.11.1994 which is the date of the first show cause notice regarding penalty. The question is whether this delay is by itself sufficient to set aside the impugned order. 10. In C.N.Ramaswany v. Chief Engineer[2] relied upon by Sri Kumara Swamy the Madras High Court was dealing with a case where the disciplinary action was commenced very belatedly. Due to that delay certain material documents which had a bearing on the charges which were of bribery and corruption, became unavailable and as a result of the same the charged officer therein was disabled in effectively putting forth his defence. The Madras High Court basing on the above circumstance and other circumstances in that case came to the conclusion that the delay therein in initiating the departmental enquiry has vitiated the said enquiry. That is not the case here and as will be presently seen the delay in this case cannot be said to have prejudiced the petitioner in any manner in his defence. 11. Sri Kumara Swamy then relied upon the judgment dated 28.06.2002 in W.P.No.10268 of 2002 (B.Gandhi v. Government of Andhra Pradesh, rep. by its Secretary, Corporation Department) of this court regarding the delay factor. This decision pertains to the disciplinary action taken against the paid Secretary of a Primary Agricultural Cooperative Society. There the proposal to dismiss the paid Secretary was dated 04.05.2002 and that also related to a charge of misappropriation of the society’s money. In the corresponding surcharge proceedings the appellate tribunal set aside the surcharge order and directed a fresh enquiry. The enquiry was kept pending for about ten years and later on another enquiry officer was appointed and that is how a delay occurred in commencing the enquiry afresh and it was in those circumstances and having regard to the fact that the surcharge order against the employee therein was set aside, this court intervened in the matter. This case is also easily distinguishable on facts. 12. In the present case the enquiry was over by 07.04.1992 and after considering the matter and the defence of the petitioner the second show cause notice was issued on 13.09.1994 proposing the punishment of dismissal. It is true that there is no proper explanation as to why the matter was kept pending till 2005 in which year the impugned order was passed. What should be noted is that in the present case the petitioner in substance admitted misappropriation which was detected by short remittances and pleaded even in 1992 that he be permitted to pay the amount in equal monthly instalments on the ground that the short remittances was not due to his wilful misconduct. This was not a case where the petitioner has denied the charge like the charged officers in the aforesaid two cases. It is also not the case of the petitioner that because of the delay certain documents relevant for the enquiry were not supplied to him and therefore he was disabled from effectively putting forth his defence or that he was otherwise prejudiced. It must be stated here that it is the good fortune of the petitioner that no criminal case was filed against him. Regarding the denial of opportunity to give explanation to the second show cause notice dated 30.03.2005, it shows that the petitioner received it and kept quiet and came up with a lame excuse subsequently after receiving the dismissal order. Thus the circumstances of this case would show that the first respondent-society gave ample opportunity to the petitioner even before passing the impugned order regarding the penalty. This apart it should be noted that the first respondent-society cannot be considered as a public authority and this aspect is already stated supra and the appointment being contractual it was open for the first respondent to terminate the service of the petitioner even on the ground of loss of confidence. Hence the plea of the petitioner regarding the delay cannot be accepted as all the above circumstances weigh against him and show that the delay is an ignorable factor in this case. 13. Then turning to the second point of the petitioner which is based on the order dated 11.08.1997 in W.P.No.13953 of 1988, the relief portion of that order has already been extracted supra. A perusal of that order would show that the petitioner earlier abstained from duty and therefore he was not allowed by the respondents 1 and 2 to work in the school and consequently this court directed them to hold an enquiry into that aspect and take a decision in the matter. It is true that in the said order an observation is also made that respondents 1 and 2 are also at liberty to hold an enquiry regarding misappropriation of the amount. A perusal of the said order would also disclose that the present enquiry relating to misappropriation of amount of Rs.20,000/- and odd was not the subject matter of the said writ petition. It appears that a request was made to the court on behalf of the petitioner that an enquiry should be held into the misappropriation charge also without taking to the notice of the court about the enquiry already held and the admission made by the petitioner regarding that charge and his request for repaying the misappropriated amount in monthly instalments. 14. As the respondents have already held an enquiry into the misappropriation charge even by the date of the order in the above writ petition it follows that they have followed the prescribed procedure regarding that charge. Nothing is pleaded before the court to show that the inquiry is vitiated. Basing on the observations in the above writ petition the petitioner cannot once again demand that a fresh enquiry should be ordered when an enquiry has already been held on the charge of misappropriation and the petitioner has also admitted the charge and requested an opportunity for repaying the amounts. In fact it can be said that the petitioner has obtained the above order in the above writ petition, to say politely, by not placing the entire information before the court. Hence the above order cannot come to the rescue of the petitioner now. 15. Then coming to his third point, the version of the petitioner is that one Ex-Head Master who was also guilty of misappropriation of the amount was let off by adjusting the said amount against his PRC arrears and therefore the same treatment should be given to him. The petitioner has filed a copy of that communication addressed to the Ex-Head Master and it is dated 13.09.1994. The said communication itself shows that by that date the head master in question already left the service of the first respondent and therefore the above action was taken against him. Even otherwise one cannot demand that if a lenient view which is not justified has been taken against one employee having regard to the charge which can be said to be a serious one, the same illegality should be committed in his case also and this legal position is well settled and Article 14 of the Constitution cannot be applied here. In this connection it should also alternatively be noted that in the counter of respondents 1 and 2 it is stated that the petitioner was given an opportunity to refund the amount embezzled but he failed to repay or refund it and therefore the extreme step was taken. Thus the petitioner cannot complain on this ground also. Hence this third point is also rejected. 16. Accordingly for the aforesaid reasons, this writ petition is dismissed. No costs. ______________________ N. RAVI SHANKAR, J 20th August 2011 CVRK [1] 2001 (3) ALD 125 (DB) [2] 1981 (2) SLR 469