18THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.17271 of 1997 Dt.18-01-2008 Between: A.K.Gopalan ..Petitioner and Osmania University rep. By its Registrar, Hyderabad ..Respondents. THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.17271 of 1997 Oral Order: In this case, petitioner has obtained a Rule from this Court calling upon the respondent—University to show cause why a writ in the nature of Certiorari should not be issued under Article 226 of the Constitution for quashing the proceedings No.2446/210/69/Adm.III dated 09-07-1997 dismissing the petitioner from service with effect from the date when he was placed under suspension i.e. 07-07-1993 for the proved misconduct. The factual backdrop of the case for the purpose of present proceedings may be stated thus: The petitioner, whose date of birth as per service records is 30-08-1935, was appointed as Director of Printing Press, Osmania University with effect from 26-08-1972. While working as such he was placed under suspension on 07-07-1993 when he was availing medical leave from 04-06-1993 to 03-08-1993 pending enquiry. Petitioner filed W.P.No.12355 of 1993 contending that though he retired from service on attaining the age of superannuation of 58 years, the papers relating to retirement benefits were not being processed. Therefore, necessary direction may be issued to process the pension papers to grant the amounts and benefits, which he is entitled to including Pension, Gratuity, GPF, Surrender Leave Salary etc. Pending W.P.No.12355 of 1993 interim direction was sought in W.P.M.P.No.15642 of 1993 for payment of pensionary benefits. This court passed the following order: “In the circumstances, no direction can be given at this stage to the respondents for payment of pensionary benefits to the petitioner pending enquiry. The enquiry has been initiated petitioner is entitled to subsistence allowance till the conclusion of the enquiry. In the circumstances, I direct the respondents to pay subsistence allowance as per rules, from the date of his suspension till the conclusion of the enquiry, pending disposal of the writ petition.” Aggrieved by the above order the petitioner filed W.A.No.419 of 1994 which was disposed of by a Division Bench on 23-04-1994 with the following directions: “Having regard to the facts and circumstances of this case, we direct that the University shall complete the disciplinary proceedings against the appellant within eight (8) weeks from the date of receipt of a copy of this order. The appellant shall cooperate with the authorities in the completion of the disciplinary proceedings. If he does not cooperate even after giving reasonable opportunity to him, it is open to the enquiry officer to proceed with the enquiry ex-parte and pass appropriate orders. If the disciplinary proceedings are not completed within the said period of eight weeks, it is open to the appellant herein to approach the learned single judge and seek appropriate direction as to the payment of Gratuity and Provident fund including payment of provisional pension under rule 52 of the Revised Pension Rules, 1980.” The said order was extended in WAMP 1444 of 1994 on 25- 07-1994. Subsequently the W.P.No.12355 of 1993 was allowed on 17- 11-1994 directing the University to pay the amounts of Provident Fund, Gratuity, Family Benefit Fund and Family Welfare fund before 31-12- 1994. Petitioner also filed W.P.No.21927 of 1994 for a declaration that the respondent-University has no jurisdiction, authority or power either to hold or continue to hold any enquiry, either disciplinary or otherwise against the petitioner or can award any punishment against the petitioner either withholding pensionary benefits or pension itself and for a direction to pay all the remaining pensionary and retirement benefits to the petitioner. Petitioner also filed W.P.No.12501 of 1996 for issuing a direction to pay the full pension from 01-09-1993 as per the Rules and also the leave encashment salary as per his entitlement according to service record salary for the months of July and August, 1993. Meanwhile, the University filed W.A.No.59 of 1995 questioning the correctness of the order dated 17-11-1994 passed in W.P.No.12355 of 1993 directing the University to pay the pensionary benefits within time frame. A Division Bench of this Court by a common order dated 17- 03-1997 disposed of W.A.No.59 of 1995 as well as W.P.Nos.21927/94 and 12501/96 with the following directions: (1) Since the petitioner/appellant has already been served with a copy of the enquiry report and called upon to show cause, if any, (notice after enquiry) he must submit his show cause within one month from today, if already not yet shown cause; (2) The University shall pass final orders in the enquiry within one month from today, in case the petitioner-appellant has already show cause and in case he has not shown cause yet, within one month of the petitioner-appellant showing cause, as ordered above. In compliance of the order passed by the High Court the Executive Council of the University resolved thus: i) To dismiss Sri A.K.Gopalan, Director, Department of Press and Publications, O.U., from the University service from the date he was placed under suspension i.e. 07-07- 1993. ii) To stop all payments to Sri A.K.Gopalan including that are presently being paid to him. iii) To explore the probabilities of filing of criminal proceedings against Sri A.K.Gopalan for the recovery of loss caused to the University by attachment of his property. In light of above resolution, the University passed the impugned order. Questioning the same the present writ petition has been filed contending that on attaining the age of superannuation on 31-08-1993 the employer and employee relationship between the University and the petitioner came to an end; disciplinary proceedings are not pending on the date when he attained the age of superannuation but they have commenced on the date the charge memo was issued and communicated to him. As the charge memo is dated 20/25-06-1994 long after he ceased to be the employee of the University, the entire disciplinary proceedings are void from the date of its initiation. The order of suspension dated 07-07-1993 is void ab initio and he is entitled to full pay and allowance from 07-07- 1993 till he retired from service on 31-08-1993 on attaining the age of superannuation apart from Pension, Gratuity, Surrender Leave Salary etc. Opposing the writ petition the respondent—University filed a counter stating that on coming to know various irregularities, the Vice Chancellor by order dated 29-05-1993 appointed three Man Committee consisting of Professor K.Ram Reddy, Professor Y.Saraswathi Rao and Professor A.Narsing Rao to examine all the accounts of the Department of Publications and University Press for the period between 1988-89 to 1992-93 and submit a report, informing the same to the petitioner. In view of the same, petitioner’s leave application dated 02-06-1993 was kept in abeyance for enabling him to make available the records to the Enquiry Committee. While sanctioning medical leave the petitioner was asked to handover the charge of the press to T.Anjaneyulu vide letter dated 03-06- 1993. The Committee submitted interim report to the Vice-Chancellor on 28-06-1993. Basing on the said interim report the petitioner was placed under suspension by proceedings dated 07-07-1993, which was ratified by the Board of Management and the same was communicated to the petitioner through proceedings dated 17-08- 1993 to his residential address by a special messenger. When the petitioner declined to receive the same was sent through registered post acknowledgement due, which was returned with postal endorsement “party out of station”. On suspension of the petitioner, leave granted to him stood cancelled. The Committee, prima facie, found embezzlement amounting to Rs.94 lakhs over a period of five years through various channels. On suspension of the petitioner, the Board of Management appointed Professor J.Satyanarayana, Department of Commerce, Osmania University as Enquiry Officer, who refused to enquire on personal grounds. Therefore, Sri Pitchaiah, Consultant to Government, PR & RD was appointed as Enquiry Officer. In pursuance of the interim order passed by this Court in W.P.M.P No.15641 of 1993 in W.P.No.12355 of 1993 dated 26-08- 1993 Pension and Gratuity of the petitioner was finalized. As per Rule 9 of the Revised Pension Rules, 1980, adopted by the Osmania University vide order No.134/11/10/Accts-Pen.I, dated 01-03-1990, University has right to withhold or withdraw Pension. Meanwhile, Pitchaiah, who was appointed as Enquiry Officer, informed that he has been appointed as Secretary, A.P. Finance Commission and it would not be possible for him to continue as Enquiry Officer. Therefore K.Kalyan Rao, Former Director, Treasuries and Accounts, Government of Andhra Pradesh, Hyderabad was appointed as Enquiry Officer on 14-07-1994. On his submitting the report dated 19- 09-1994, second show cause notice was issued to the petitioner on 24-09-1994 to which he submitted explanation. While so, this Court in W.P.M.P.No.27243 of 1994 in W.P.No.21927 of 1994 dated 16-12- 1994 stayed all further proceedings. On disposal of the above writ petition along with writ appeal the University passed the impugned order. A reply affidavit has been filed by the petitioner reiterating that he retired from service on 31-08-1993 on attaining the age of superannuation of 58 years. Therefore, the final orders passed by the University, dismissing him from service from 09-07-1993 with retrospective effect is not valid and no disciplinary proceedings can be initiated or continued after the date of retirement. The question of determination of provisional pension could arise only on retirement from service. Therefore, the order passed by the University dismissing him from service is not valid and void ab initio. Sri D.V.Seetharam Murthy, learned counsel for the petitioner, initially submitted that (i) charge has not been initiated before the petitioner attaining age of superannuation; therefore, University cannot issue show cause notice on attaining the age of superannuation; (ii) the Vice Chancellor has no power to suspend the petitioner especially when he was working as Director of Printing Press, Osmania University, Hyderabad and (iii) no opportunity was given to the petitioner to defend during the course of enquiry; has conceded that since the petitioner was placed under suspension before attaining the age of superannuation, which was ratified by the Board of Management, followed by charge memo; therefore, he is not pressing the first two grounds and submitted that the petitioner was not given an opportunity to defend during the course of enquiry, which vitiates the whole proceedings. He elaborated the same by contending that witnesses were examined behind his back during the preliminary enquiry who were also examined by the Enquiry Officer on 17, 18, 20, 26, 28-08-1994; petitioner was permitted to engage the defense assistant only on 26-08-1994 by the Vice Chancellor, by that time witnesses were already examined; though he addressed a letter dated 22-08-1994 to the Enquiry Officer requesting to supply the copies of the statements of P.Ws.1 to 11 which were recorded during the preliminary enquiry and authencated copy of the enquiry report and also report of the preliminary enquiry they were not supplied to the petitioner. Professor K.Ram Reddy who did not appear in the list of witnesses was examined on 28-08-1994; a request was made on his behalf for cross-examination of P.Ws.1 to 11, which was rejected thus, he was not given a fair opportunity to defend himself. To substantiate his submissions he placed reliance on the judgment of the Supreme Court in SAWAI SINGH v. STATE OF RAJASTHAN[1]. In the absence of any specific charge about the petitioner’s misappropriation of the amount and the punishment imposed on him in on the vague charges it is liable to be set aside. The explanation offered by the petitioner to the charge memo has not been considered by the Enquiry Officer, which is evident from the enquiry report. Per contra, Sri Deepak Bhattacharji, learned Standing Counsel for the Osmania University contended that the petitioner was placed under suspension before attaining the age of superannuation, followed by charge sheet and the enquiry was conducted as per the directions of this Court in W.A.No.59 of 1994. The petitioner was given full opportunity and report of the Enquiry Officer was supplied for offering his explanation and only after considering the explanation, which was found not satisfactory, he was dismissed from service. He has taken me to the enquiry report and various proceedings to show in spite of providing reasonable opportunity he has not availed the same. He also contended that unless the petitioner establishes that prejudice is caused, he is not entitled to question the findings of the Enquiry Officer as accepted by the Disciplinary Authority. In view of the above submissions, the only point that arises for consideration in this writ petition is: “Whether the petitioner was provided reasonable opportunity to defense himself during the course of departmental enquiry or not” By proceedings dated 01-08-1994 the petitioner was informed that the enquiry will be commenced from 16-08-1994 onwards till all the witnesses were examined and cross-examined including the defense witnesses to be proposed by the petitioner and the said enquiry will commence at 11.30 A.M. every day from 16-08- 1994 in Room No.104, Platinum Jubilee Cell, Osmania University Guest House, to which the petitioner addressed a letter dated 02-8- 1994 to the Enquiry Officer, K.Pitchaiah, stating that in the completed questionnaire appended to the explanation he had opted for column 2(b) (e) to be heard in person without an oral enquiry and requested to inform a date, so that he can be heard in person in Room No.104, Platinum Jubilee Cell, Osmania University Guest House. The Enquiry Officer through his letter dated 11-08-1994 called upon the petitioner to present during the oral examination of witnesses listed in the questionnaire stating that questionnaire does not stop the Enquiry Officer from offering the petitioner an opportunity for cross-examine the witnesses and since the said witnesses were not examined in his presence during the preliminary enquiry, petitioner was given an opportunity to cross-examine them and to give a full and fair opportunity to defend himself. He also informed at the request of the presenting officer, he permitted Professor K.Ram Reddy to be produced as one more witness during the oral enquiry. He will be examined on 25-08-1994 at 1.30 P.M. and called upon the petitioner to present on the said date to cross-examine the witness, if he so desires; in case he attends the oral enquiry the date of personal hearing will be intimated personally on 25-08-1994 and also enclosed a programme of the witnesses to be examined. Petitioner made a request on 25-08-1994 for defense assistant, which was permitted on 26-08-1994. Meanwhile, all the witnesses were examined and he has not availed the benefit of cross-examining the witnesses. On 27-08-1994 petitioner was supplied authenticated copy of depositions of P.Ws.1 to 11 and informed that personal hearing has been fixed on 30-08-1994. On receipt of the same, the petitioner submitted a written brief along with letter dated 30-08- 1994. While enclosing copy of the enquiry report, show cause memo dated 24-09-1994 has been issued to the petitioner informing that University, prima facie, of the opinion that the findings recorded by the Enquiry officer are correct and why suitable disciplinary action commensurate with the proved charges should not be taken against him for which the petitioner submitted his explanation. On petitioner submitting explanation to the second show cause notice the impugned order has been passed. Learned counsel for the petitioner would contend that since the whereabouts of the petitioner are not known, he is handicapped to substantiate why the petitioner has not proceeded with the cross- examination of the witnesses who were present during the course of enquiry and reasons for his not availing the opportunity to be present before the Enquiry Officer and cross-examine the witnesses. It is not in dispute that the petitioner was made known the dates of enquiry on 01-08-1994 itself that the enquiry will be proceeded from 16-08-1994 to 27-08-1994 and also examination of Professor K.Ram Reddy on 25-08-1994. Only on 25-08-1994 he made a request for defense assistant, which was permitted on 26-08- 1994; meanwhile all the witnesses were examined. Petitioner submitted written brief after supplying the entire depositions, but not requested to summon them for enabling him to cross-examine or reported for availing the services of defense assistant. Learned counsel for the respondent placed reliance on the following judgments 1. MUNICIPAL COMMITTEE, BAHADURGARH V. KRISHNAN BCHARI[2] 2. STATE BANK OF PATIALA v. S.K.SHARMA[3] 3. V.RAMANA v. APSRTC[4] 4. UNION BANK OF INDIA v. VISHWA MOHAN[5] 5. G.SATYANRAYANA v. CANARA BANK, BANGALORE[6] 6. UNION OF INDIA v. A.NAGAMALESHWAR RAO[7] 7. STATE OF PUNJAB v. RAM SINGH[8] 8. SANCHALAKSHRI v. RAGHUVIRPRASAD MEHTA[9] 9. STATE OF ASSAM v. M.K.DAS[10] contends that in spite of giving opportunity to the delinquent employee if he has not availed the same he cannot complain breach of principles of natural justice. The finding of the Enquiry Officer also goes to show that the petitioner attended the enquiry while examining Professor K.Ram Reddy and cross-examined him on 28-08-1994. On 30-08- 1994 he gave a written statement in lieu of oral hearing. After taking into consideration the reply of the petitioner the Enquiry Officer found charge Nos. 1,2,6 and 7 held proved. Charge No.1 shows that petitioner has not accounted for Rs.31,83,765/-. Charge No.2 shows that petitioner caused loss to an extent of Rs.19,91,992/- by purchasing paper from open market at exorbitant rates during the period from 1988-89 to 1992-93. Charge No.6 relates to loss of Rs.20,10,080/- caused to the University by making cash purchases of articles like ink and other materials relating to printing, by purchasing at higher rates than prevailing in the market. Lastly Charge No.7 shows that the petitioner caused loss by incurring an expenditure of Rs.13,95,590/- by purchasing printing machinery which was not used and which is not of the standard quality. The Disciplinary Authority also accepted the report of the Enquiry Officer and basing on the same the petitioner was dismissed from service. Learned counsel for the petitioner expressed his inability to substantiate violation of principles of natural justice except stating that petitioner was not given reasonable opportunity during the course of enquiry as he was not provided defense assistant and the statements recorded in the preliminary enquiry have not been supplied. It is now well settled that statements recorded during the course of preliminary enquiry, unless made part of record and on which basis services of the petitioner are terminated, need not be supplied. As already referred, by letter dated 01-08-1994 the Enquiry Officer made it clear that witnesses, who were examined during the course of preliminary enquiry, will be examined during the course of enquiry and he can avail the opportunity to cross-examine them; petitioner failed to cross-examine them and he cross-examined only Professor K.Ram Reddy on 28-08-1994, which is evident from the enquiry report, now he cannot complain violation of principles of natural justice. Since the charges held proved are grave in nature and misappropriation of huge amount, which was accepted by the Disciplinary Authority, this Court cannot go to the correctness of the findings so recorded unless infirmity is pointed out in the evidence so recorded by the Enquiry Officer. The writ petition fails and it is accordingly dismissed. No costs. ________________ A.GOPAL REDDY, J. 18-01-2008 Murthy [1] AIR 1986 SC 995 = (1986) 3 SCC 454 [2] AIR 1996 SC 1249 [3] AIR 1996 SC 1669 [4] 2001 (5) ALD 427 (FB) [5] AIR 1998 SC 2311 = (1998) 4 SCC 310 [6] 2003 (1) ALD 49 (DB) [7] (1998) 1 SCC 700 [8] AIR 1992 SC 2188 [9] AIR 1999 SC 578 [10] AIR 1970 SC 1255