IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 27115 of 2008 Between: K. Gnaneswara Rao S/o. Sri Raghavaiah A.P. State Housing Corporation, R/o. H.No.15-6-79, Redla Bazar, Old Guntur, Guntur. ..... PETITIONER AND 1 A.P. State Housing Corporation Ltd., rep. by its Managing Director, 3-6-184, Urdu Galli, Himayathnagar, Hyderabad. 2 The Managing Director, A.P. State Housing Corporation Ltd., 3- 6- 184, Urdu Galli, Himayathnagar, Hyderabad. 3 The Deputy Executive Engineer (Enquiry Officer), Machilipatnam Division, A.P. State Housing Corporation Ltd., Machilipatnam, Krishna District. .....RESPONDENTS 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 a Writ of Mandamus or any other appropriate writ, order or direction declaring the enquiry conducted by the 3rd respondent vide Proceedings Rc.No.02/A/AVG- EQY/2007, dt.03.06.2008 and the consequent order Procd.No. Vig(1)/6994/KRSH/2002, dt.2.12.2008 issued by the 2nd respondent, imposing punishment of removal from service and recovery of Rs.2,80,638/- with 12% interest as illegal, arbitrary, violation of principles of natural justice and set aside the same and pass Counsel for the Petitioner: MR.C.RAGHU Counsel for the Respondents: MR.P.UDAYA BHASKARA RAO The Court made the following : ORDER: This writ petition has been filed by K. Gnaneswara Rao questioning the enquiry conducted by the Deputy Executive Engineer (Enquiry Officer), the third respondent herein, vide proceedings dated 3.06.2008 and the consequent orders passed by the Managing Director, A.P. State Housing Corporation Limited vide proceedings No.Vig(1)/6994/KRSH/2002, dated 2.12.2008. The petitioner is an Assistant Engineer at Kollur Mandal, Guntur District. Departmental proceedings have been initiated against him. The disciplinary authority appointed the enquiry officer, and charges were also framed calling for written statement. There upon written statement was submitted by the petitioner/delinquent. The disciplinary authority appointed the enquiry officer. The enquiry officer submitted a questionnaire to the petitioner/delinquent. The petitioner/delinquent denied the allegations leveled against him and pleaded not guilty. The enquiry officer proceeded to record the statement of the petitioner/delinquent and basing on the said statement, he submitted a report finding the petitioner/delinquent guilty of the charges framed against him. The enquiry report came to be accepted and the disciplinary authority issued show cause notice proposing punishment of removal. The enquiry conducted by the enquiry officer and the subsequent show cause notice of the disciplinary authority are under challenge in this writ petition. When the writ petition came up for admission, Sri Mohanrami Reddy, learned Standing Counsel of A.P. State Housing Corporation Limited, accepted notice on behalf of respondent No.1. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the first respondent and with their consent, the main writ petition itself is taken up for final disposal. The learned counsel appearing for the petitioner submits that the petitioner/delinquent denied the allegations leveled against him and in which case, the enquiry officer is bound to examine the witnesses to substantiate the allegations. The procedure adopted by the enquiry officer in recording the statement of the petitioner/delinquent, without there being any evidence, is contrary to the Andhra Pradesh Civil Services (Classification, Control and Appeal Rules 1991 (for short ‘the Rules’). He drew my attention to Rule 20 (5), (9) and (14) of the Rules. For better appreciation, I may refer the relevant sub-rules referred by the learned counsel, and they are as follows. “Rule 20:- Procedure for imposing major penalties:- 1) ……… 2) ………… 3) ………… 4) ……….. 5) a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, ;if it considers it necessary so to do, appoint under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 21; (b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose; (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge. 6) ………….. 7) ……….. 8) ……….. 9) If the Government Servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government Servant thereon. 10) ………….. 11) ……….. 12) ………. 13) ………… 14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross- examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.” ….. The learned counsel further contends that the procedure adopted by the enquiry officer is in utter violation of the principles of natural justice and thereby the enquiry report submitted by him is vitiated. The learned Standing Counsel appearing for the respondents submits that the petitioner/delinquent made a statement before the enquiry officer, which formed the basis for finding him guilty of the allegations leveled against him and therefore, the findings recorded by the enquiry officer can be said to be illegal. I have gone through the questionnaire served on the petitioner/delinquent, which reads as under. ENQUIRY ON CERTAIN IRREGULARITIES IN CONSTRUCTION OF HOUSES IN AVANIGADDA CONSTITUENCY ON 26.12.2007 AT MACHILIPATNAM QUESTIONING OF THE CHARGED OFFICER Sri K. Gnaneswara Rao, A.E (Housing). Q. Have you received the charge memo and understood the charges? Ans. Yes. Q. Are you admitting the allegations leveled against you in the article of charges? Ans. No. I deny the articles. Q. Do you want to peruse the original records in the connected file? If so, you are permitted to peruse the records in my present? Ans. 1) “95 Houses substitution sanction orders copy in South Chiruvolulanka IAY 1998- 99, and also 2) Lr. Rc.No.146 (A)/A/2002, dated 29.06.2002 of the Dy. Executive Engineer (Housing) Machilipatnam. Q. Do you want any more record in this case? If so, file a memo duly furnishing the details of documents required and their relevancy to the present case. Ans. 1) My joining report copy from Nuzvid to Avanigadda Section and Jaggaiahpet to Avanigadda Section and the transfer orders copies (i.e. from Avanigadda to Jaggaiahpet and Jaggaiahpet to Avanigadda). Q. Are you having any deference witnesses? If so file a memo duly furnishing the address particulars of the witnesses? Ans. – No – The regular hearing in the case is posted to 21.01.2008 at 11.00 a.m., in the Machilipatnam Divisional Office. It is explicit from the questionnaire that the petitioner denied the allegations leveled against him. As per Rule 20, once the petitioner/delinquent denied the allegations, the management/ employer has to substantiate the allegations leveled against the petitioner/delinquent. Indisputably, there is no evidence adduced by the management/employer to substantiate the allegations made against the petitioner/delinquent. The whole procedure adopted by the enquiry officer is in utter violation of the Rules. Therefore, the report submitted by the enquiry officer is liable to be set aside. Consequently, the show cause notice issued proposing the punishment of removal from service is queshed. The enquiry officer is at liberty to conduct the enquiry afresh and submit a report. With the above observations, the Writ Petition is disposed of. No costs. _________________________ (B. Seshasayana Reddy, J.) 21st January, 2009 Js.