IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.22984 of 2004 Between: P. Vara Prasad S/o P. Ganga Raju Presently Working as Regional Supervisor Senior Inspecting Officer APSWCS Ltd., (APCO), Tirupathi R/o 26-104/2/2, Balaramanagar Safilguda, Hyderabad ..... PETITIONER AND The Vice-Chariman & Managing Director, The A.P. State Handloom Weavers Co-operative Society Ltd. (APCO), Weavers Bhavan, Narayanaguda, Hyderabad .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue direction or pass an order or orders or issue a Writ more particularly one in the nature of a Writ of Mandamus declaring the action of the respondent in imposing the punishment of dismissal through his proceedings in Ref. No. 5812/2003/Admn.III (1)/Nlg. Dist/T&D Proc/C.O./2003-2004/4432 dt 11-11-2004 as arbitrary and illegal and violtive of principles of Nature of Justice and also violative of Article 14, 16 21 & S11(2) of the Constitution of India, and consequently setting aside the same with all consequential benefits and pass such other order or orders. Counsel for the Petitioner: Mr.M.PANDURANGA RAO Counsel for the Respondent: Mr.CH.JAGANNADHA RAO The Court made the following : W.P.No.22984 of 2004 O R D E R: This Writ Petition is filed seeking a Mandamus declaring the action of the respondent in imposing the punishment of dismissal through Proceedings in Ref.No.5812/2003/Admn.III(1)/Nlg.Dist/T&D Procs/C.O./ 2003-2004/4432, dated 11-11-2004 as arbitrary, illegal and violative of principles of natural justice as also Bye-laws of the Society and further declare that the Managing Director has no power or jurisdiction to initiate proceedings muchless to pass an order of dismissal against the petitioner. According to the petitioner, he belongs to Scheduled Caste community and recruited directly as Marketing Officer in the Andhra Pradesh State Handloom Weavers Cooperative Society Limited (APCO) in the year 1984 with M.B.A. (Marketing) qualification and posted at Central Office, Hyderabad. Further, he was promoted as Senior Marketing Officer in the year 1994 and was continued at Central Office till 7-12-2002 and was transferred as Regional Supervisor, Tirupathi. Subsequently, by an Order dated 8-4-2004 his designation was changed to that of Regional Supervisor/Regional Inspecting Officer, Southern Region at Tirupathi. While he was working as a Senior Marketing Officer (I.S.), Central Office, a new procurement policy for procurement of stocks was introduced and guidelines to that effect were issued by the respondent on 2-1-2002 in supersession of the earlier guidelines. Subsequently, a business plan for the year 2002-03 was issued by the respondent on 28-3-2002 along with the guidelines. As per those guidelines, all the Divisional Marketing Officers in the State were made responsible to procure the stocks along with respective Procurement Officers (POs) and Technical Assistants (TAs) of the respective divisions, directly contacting the weavers and societies, who are within the cooperative fold of the area for achieving their targets. However, in view of crisis in the Handloom Industry, starvation deaths occurred at Pochampally and other areas of Nalgonda District, the Government of Andhra Pradesh permitted the APCO to lift the stocks from the weavers outside the cooperative fold for which it had released Rs.5.00 crores to APCO to be used as Revolving Fund. As the said crisis area come under Secunderabad Division, the Divisional Marketing Officer of Secunderabad Division was instructed to arrange procurement of stocks selected by different DMOs and SBU Managers in the State along with PO and TA of Secunderabad Division and also to make arrangements to dispatch the same to the respective divisions as well as SBU units. The said crisis procurement was made during the months of May,2002 to September,2002 and the stock procured was being dispatched to the concerned DMOs/SBU units directly from the DMO’s Office, Secunderabad. In view of the fact that the said special crisis procurement was made as a special case only to support the weavers within and outside the cooperative fold and also as per the request of the political leaders and other elders of the said area, excess procurement was made by the DMO, PO and TA of Secunderabad Division. Hence, the target of Secunderabad was modified to Rs.14.40 crores within time. However, the actual procurement was made for Rs.13.72 crores, which was within the modified target. The said special crisis procurement was made during the months of May to September,2002 and the stock procured was being despatched to the respective DMOs and to other outlets directly by the DMO, Secunderabad and the DMO did not supervise the procurement being made by the PO and TA of the division as per the said guidelines. But, all of a sudden, the Divisional Marketing Officer, Secunderabad issued a Memo dated 18-10-2002 to the PO and TA of Secunderabad Division calling for their explanation as to why they did not put their respective stamps on the special crisis procurement stock, instead why did they use the stamp of the committee. In addition to that, the D.M.O., Secunderabad noticed that the PO and TA used their stamps on invoices raised for the said special crisis procurement stock, thereby they misled the Central Office also. A copy of the said Memo dated 18- 10-2002 was sent to the respondent for information and necessary action. Only then, it was brought to the Head Office that the DMO, PO and TA have violated the guidelines in procuring the said crisis procurement stock. Immediately, on the oral instructions of the respondent, the petitioner went to the Office of DMO, Secunderabad and obtained their statements-cum-explanations and submitted a report to that effect to the respondent for taking action against them. The said PO and TA of Secunderabad Division were suspended immediately, pending enquiry. The DMO, Secunderabad was also suspended in another case. In view of the above, on the personal instructions of the respondent, the petitioner verified the remaining stock kept under the DMO, Secunderabad and returned certain stocks to the respective societies/parties from whom procurement was made. Petitioner submitted a report dated 20-11-2002 to the respondent regarding the return of stock mentioned. Thereafter, the DMO, Secunderabad also made a statement of return of stock to the respective societies/master weavers with L.R. numbers and dates confirming that they were dispatched to the parties concerned. In view of the above, strict instructions were issued to all the DMOs and SBU Managers not to procure stocks from outside cooperative fold. Meanwhile, on coming to know that the APCO is returning the excess stocks procured by the said DMO, PO and TA of Secunderabad Division in violation of the procurement guidelines, the said societies and parties of Nalgonda area made representations to the then C.M., who, in turn, said to have given instructions to the respondent not to return any excess stock. Thereby, the returning of excess stock to the respective societies and parties was stopped from 21-11-2002. While that being so, the petitioner was transferred from Head Office to Tirupathi as Regional Supervisor for Southern Region on administrative grounds to strengthen the Regional Offices by an Order dated 2-11-2002. As the societies and parties whose stocks were returned from the DMO’s Office, Secunderabad have represented to the then Chief Minister to take steps for payment for the said stocks, they did not come forward to take delivery of returned stocks. As the stock was returned from the DMO, Secunderabad, who also made statement of returned stocks with LR particulars, he is also responsible to pursue the matter, whether the returned stocks were delivered to the concerned society/party or not. But, it appears that he did not take any further steps with regard to the returned stock and also did not inform anything to the Head Office with regard to the above non-delivery of stock till the petitioner was transferred from Head Office to Tirupathi on 7-12-2002. Subsequent to the transfer of the petitioner from the Head Office, the DMO, Secunderabad appears to have informed the Head Office that the returned stocks worth about Rs.1.31 crores were not delivered to the societies/parties and were still lying with the transport. In view of the non-delivery of the stock due to reluctance of the societies/parties in taking delivery and as they made representation to the Chief Minister, respondent issued a Circular dated 11-3-2003 allocating the non-delivered stocks among the different Divisional Marketing Officers/SBU Managers in the State as a special procurement on consignment basis. Thus, the return stocks were distributed among them. While that being so, surprisingly, the respondent issued a charge Memo dated 10-3-2003 to the petitioner alleging violation of procurement guidelines and failure to supervise the duties in procurement of silk sarees from the societies located in Nalgonda district and calling for explanation for the charges made against him. Petitioner submitted a detailed explanation on 27-3-2003. Thereafter, by Proceedings dated 11-6-2003 the respondent informed about the appointment of a representative on behalf of the Management and also asking the petitioner to attend the domestic enquiry on 16-6-2003. It was also stated in the said Proceedings that a joint enquiry was sought to be made by the Enquiry Officer of the Central Office to conduct an enquiry against him as well as N.Rangaswamy, the then P.O., P.Laxman Das, the then DMO and S.V.V.Prasad Reddy, the then TA for violation of procurement guidelines. In the said enquiry, B.Kotilingam, Marketing Officer, Wholesale Godown, Secunderabad was examined as a Management Witness. Petitioner attended the enquiry on 16-6-2003. According to him, the enquiry was conducted without giving him reasonable opportunity of cross-examining the witnesses against him. Thereafter, the Enquiry Officer submitted a report on 24-6-2003 stating that the charges were proved. In pursuance thereof, show cause notice dated 18-7-2003 was issued to the petitioner asking him to explain as to why punishment of dismissal from service should not be imposed against him. Petitioner immediately submitted a letter dated 24-7-2003 stating that only from pages 5 to 10 of the enquiry report were supplied, without statements of any witnesses, which are required for giving detailed explanation; therefore, he requested the respondent to supply full report of the domestic enquiry. But, the respondent did not supply; however, by Proceedings dated 2-8-2003 the petitioner was informed that he could personally come to the Central Office during working days and note down the particulars of the enquiry report. Since the petitioner was working at Tirupathi and his job was to make inspection of the units in the Southern Region as a Regional Supervisor/Senior Inspecting Officer, with an intention not to dislocate the work there itself, and also he is entitled to have a full copy of the entire domestic enquiry report dated 24-7-2003 and also in view of the provisional punishment of dismissal sought to be imposed against him basing on the alleged and illegal report of the Enquiry Officer, once again he requested the respondent to supply a copy of the domestic enquiry report in full shape, so that he can give a detailed explanation for the said show cause notice, as the pages 5 to 10, supplied to him, do not contain any preamble or heading of the responsible Officer of the Central Office, or any part of the conclusion of the enquiry report and or the signature of the Enquiry Officer. However, by Memo dated 22-9-2003 it was stated that the enquiry report is very voluminous and as such, a copy of the same cannot be supplied to the petitioner and directed him to come to the Central Office and take note of the required documents for submission of his explanation within 7 days, as a last chance. Though he was not supplied with full text of Enquiry Officer’s report, he submitted his explanation on 27-9-2003. However, the respondent without considering the same, issued Proceedings dated 11-11-2004 dismissing the petitioner from service. Hence, this Writ Petition. A detailed counter affidavit is filed denying the allegations made by the petitioner. It is inter alia stated that the record of the petitioner right from the beginning till his dismissal from service was very unsatisfactory and wherever he was posted, he committed grave irregularities with the connivance of the staff; thereby causing financial loss to the organization. Petitioner, on completion of probation, was posted at Guntur with effect from 6-5-1986 and while working there as Marketing Officer, he misused his official position; therefore, charges were framed. On completion of the enquiry, he was let-off with a warning. Thereafter, petitioner was transferred and posted as Divisional Marketing Officer at Kurnool, but he failed to report as per the transfer order. Action for the disobedience of the orders was taken and charges were framed against the petitioner. During the pendency of this enquiry, petitioner was again transferred to Secunderabad as Divisional Marketing Officer and he joined duty on 1-7-1987. Again, the petitioner while working as DMO, Kurnool had committed grave irregularities in collusion with the then Procurement Officer and other staff of the Sales Emporium of Kurnool Division by creating fictitious records in respect of procurement and sale of Janata Stocks. The staff also involved in booking orders and claiming heavy expenditure of transportation and the petitioner found abetted the commission of the said irregularities and is responsible for cheating the society, thereby causing heavy financial loss to the Management. In view of these serious irregularities, charges were framed by Office Memo dated 9-3-1988 and ultimately, proceedings were concluded on 28-11-1992 dismissing the petitioner from service. Against the said order, the petitioner filed an appeal and the appellate authority, as per the recommendations of the administrative sub-committee, directed to reinstate him into service with stoppage of 6 annual grade increments with cumulative effect, by Proceedings dated 30-4-1993. On reinstatement, the petitioner’s case was considered for promotion and was promoted as Senior Marketing Officer by Proceedings dated 20-5-1994 and he joined at Central Office. While working as such, the petitioner again committed serious irregularities in arranging direct dispatch of cloth to the processing unit and failing to arrange test check by the technical personnel of the Quality Control, Secunderabad. Further, he failed to follow the procedure in vogue and this charge is still pending against him. Petitioner was thereafter transferred and posted to work at Regional Supervisor in Southern Territory at Tirupathi and he reported to duty on 11-12-2002. Petitioner in his new post even failed to supervise his subordinate staff and guide them properly with regard to procurement and contrary to rules procured excess stocks, which also resulted in loss to the management. In view of this lapse on the part of the petitioner, a charge memo was issued to him on 10-3-2003. Petitioner submitted his explanation to the said charge Memo. Since the same was found to be not satisfactory, the disciplinary authority appointed an Enquiry Officer to enquire into the charges levelled against the petitioner and others, who also found to be involved. After giving adequate opportunity to the petitioner to defend his case, the Enquiry Officer submitted his report holding that the petitioner is guilty of the charges. Thereafter, a show cause notice was issued and the petitioner was dismissed from service for proved misconduct, which was grave in its nature. Further, the allegation that proper opportunity was not given during the enquiry is not correct. Petitioner at no point of time raised any objection before the Enquiry Officer nor protested the manner of conducting enquiry. Having participated in the enquiry, it is not proper on the part of the petitioner to question the proceedings conducted by the Enquiry Officer without any valid reason. It is denied that the petitioner was not served with enquiry report along with the show cause notice. A joint enquiry was conducted against several employees including the petitioner and a joint report was submitted. The disciplinary authority while issuing second show cause notice also supplied enquiry report insofar as the petitioner’s case was concerned and the findings recorded against him, which are relevant. When the petitioner made an application to the Management to give an opportunity to peruse the entire enquiry report, he was permitted to go through the report. Petitioner, having not satisfied with the opportunity given by the disciplinary authority, made false allegation that he was not given proper opportunity to go through the report and record. Therefore, the impugned Order of dismissal cannot be said to be either arbitrary or illegal or the enquiry conducted against the petitioner is vitiated under the law. The Writ Petition is devoid of merits and liable to be dismissed. Heard both sides. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned Order and other material made available on record. Though the petitioner filed reply, he has not denied the earlier punishments suffered by him, except saying that the dismissal order was ultimately set aside and he was reinstated into service. Further, it appears, a joint enquiry was conducted against the petitioner and others. The relevant portion of the Enquiry Officer’s report insofar as the petitioner was concerned, was supplied to him. It is not the case of the petitioner that in the other part of the enquiry report, some portions relating to him, are also available nor it is the case of the petitioner that on the basis of any third party’s evidence, which is recorded therein, he was held to be guilty of the charges. Therefore, absolutely there is no truth in the contention of the petitioner that he was not supplied with the Enquiry Officer’s report in total for the purpose of submitting a detailed explanation nor it is the case of the petitioner that the order of dismissal passed by the disciplinary authority is based on any material, other than the report of the Enquiry Officer, which was not furnished to him. Therefore, it cannot be said that the enquiry is vitiated or invalid and thus, the dismissal order needs to be set aside. It is the contention of the learned counsel for the petitioner that for the very same charge, the other Officers were imposed with a punishment of stoppage of increments with cumulative effect, whereas the petitioner is meted out with the punishment of dismissal from service. Even otherwise, the charges are trivial in nature and are proved, the punishment of dismissal from service is shockingly disproportionate to that of the misconduct alleged. On a close examination of the record, it is seen that the sum and substance of the charge is, the petitioner did not supervise properly and did not follow certain guidelines. But, absolutely, there is no evidence to hold that he had caused any loss to the organization. Even if the past conduct is taken into consideration, there also nowhere it was proved that he had caused any loss to the organization. May be, there were some irregularities here and there; however, ultimately he was absolved of the same and punishments of warning and stoppage of increments were imposed. Under those circumstances and in the nature of the charges alleged in the present disciplinary proceedings against the petitioner, I am of the opinion that the punishment of dismissal from service is unwarranted and the same is shockingly disproportionate to that of the misconduct proved. In the absence of any finding as to mala fides, misappropriation or causing loss directly, the respondent could have very well imposed a punishment of reversion of the petitioner or retiring him compulsorily instead of dismissing from service. In the result, the impugned Order is set aside and the matter is remitted back to the respondent for imposing any lesser punishment than that of dismissal from service and passing appropriate orders. This exercise shall be completed within a period of four weeks from the date of receipt of a copy of this Order. Accordingly, the Writ Petition is disposed of. No order as to costs. 11-4-2008 prk