THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.14 OF 2009 Dated: 30.12.2009 Between K. Vinodhar … Petitioner And 1. The Nizam’s Institute of Medical Sciences, Punjagutta, Hyderabad, rep. by its Executive Registrar, Hyderabad., and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.14 OF 2009 ORDER : This writ petition is filed seeking a declaration that the order passed by the 1st respondent dated 30.12.2008 imposing the major punishment of reduction to the lower post of Assistant Registrar from the post of Deputy Registrar w.e.f. 23.10.2008 as arbitrary, illegal and violative of Rule 20 of A.P. Civil Services (Classification, Control & Appeal) Rules, 1991 (for short, ‘CCA Rules’). The facts, in brief, are as under : The petitioner joined the services of the 1st respondent Institution –Nizam’s Institute of Medical Sciences (herein after referred to as ‘NIMS’) in the year 1969. He was promoted to the Post of Deputy Registrar in the year 1996. While he was working as Deputy Registrar in Finance & Audit Section, by order dated 16.10.2008 he was transferred to I.P. Billing & Cash Counter. The petitioner made a representation on 22.10.2008 stating that he was due to retire on 31.5.2009 and that apart on account of health reasons he would not be in a position to cope up with the heavy work load in I.P. Billing Section and requested to shift him to any other section other than I.P. Billing/Cash Counter. On 23.10.2008 he also applied for preparatory leave upto 1.1.2009. However, his request for leave was rejected and that apart by order 30.10.2008 the 1st respondent informed the petitioner that an enquiry under Rule 20 of A.P. Civil Services (CCA) Rules, 1991 was being held against him regarding his non- compliance with the order of transfer to I.P. Billing as well as unauthorized absence from 23.10.2008 onwards. He was also informed that an Enquiry Officer was appointed to enquire into the allegations and submit a report within 15 days. By a separate memo dated 30.10.2008 the petitioner was also called upon to explain the alleged misconduct under NIMS Standing Order No.30 Para 4 (ii) (a) (i) Explanation-II (i) within 3 days. On 4.11.2008 itself the petitioner submitted a detailed explanation denying the allegations of unauthorized absence and the alleged disobedience to the transfer order. Though no further enquiry was conducted, it appears that the Enquiry Officer submitted a report and on the basis of the same the 1st respondent by proceedings dated 27.11.2008 informed the petitioner that it was proved that he had unauthorizedly absented to duty from 23.10.2008 and as such the misconduct/disobedience was proved. Accordingly the petitioner was directed to show-cause as to why a punishment of reduction to a lower time scale of pay, grade, post should not be awarded. The petitioner submitted his explanation on 8.12.2008 stating that no charge-sheet was communicated to him and no enquiry was conducted and therefore the proposed penalty on the basis of the enquiry report said to have been submitted by the Enquiry Officer was unwarranted. While so, by letter dated 29.12.2008 the petitioner was directed to present before the Medical Board for medical examination on 30.12.2008 with all medical records without fail. On the next day i.e., 30.12.2008 the impugned order came to be passed stating that the petitioner’s explanation dated 8.12.2008 was not satisfactory and therefore the Medical Board was constituted on 29.12.2008 to evaluate the alleged loss of vision in the right eye of the petitioner and that the Medical Board opined that the petitioner was in a position to discharge the normal duties assigned to a Deputy Registrar. It is further stated that in view of the said medical report, in exercise of the powers conferred upon Rule 7(2) of NIMS Employees Control and Appeal Rules, a major punishment of reduction to the lower post of Assistant Registrar with minimum pay in the scale of pay of Rs.8000- 275-13500 has been awarded with effect from the date of his unauthorised absence i.e., 23.10.2008. Aggrieved by the said order, the present writ petition is filed. A counter-affidavit has been filed on behalf of the respondents in which apart from reiterating the allegations of unauthorized absence and disobedience with the order of transfer, it is contended that the Director and Executive Registrar of NIMS are the authorities to maintain this Scheme by taking action if circumstances so warrant against the employees who commit misconduct or for dereliction of duties vide Rule 52 (iv) and 56 (iv) of the NIMS Rules, 1989 and therefore the impugned order has rightly been passed. It is also contended that against the impugned order since an alternative remedy of appeal is available, the petitioner cannot maintain this writ petition without exhausting such remedy. I have heard the learned counsel for both the parties. It is not in dispute that the Nizams Institute of Medical Sciences Employees (Control & Appeal) Rules, 1986 were made by the Board of the NIMS in exercise of the powers conferred by the Governing Council and the same came into force on 28.6.1986. However, it was resolved by the Executive Board of the Institute vide Resolution No.741 in its 36th meeting to adopt the Rules issued in G.O.Ms.No.487, G.A.D., dated 14.9.1992 until Rules are framed afresh by the NIMS to deal with the disciplinary cases arising in the Institute and that the A.P. Employees (Classification, Control & Appeal) Rules, 1991 as amended from time to time shall be applicable to all the employees of the NIMS. It is also clear from the proceedings of the 1st respondent dated 30.10.2008 that the Enquiry Officer was appointed to enquire into the allegations levelled against the petitioner in exercise of powers conferred under Rule 20 (2) of the CCA Rules, 1991. In the circumstances, the impugned order dated 30.12.2008 has to be traced only to the power conferred under CCA Rules, 1991 and Rule 7(2) of the NIMS Employees (Control & Appeal) Rules referred to in the impugned order has no relevance. The learned counsel for the petitioner while submitting that the major penalty of reduction to the lower post cannot be imposed without conducting the detailed enquiry as contemplated under Rule 20 of the CCA Rules, vehemently contended that the impugned order is liable to be set aside since no enquiry at all was conducted before issuing the impugned order. In support of his submission, the learned counsel for the petitioner relied upon a decision of the Full Bench of this Court in GOVERNMENT OF A.P. v. M.A. MAJEED[1]. On the other hand, the learned counsel appearing for the respondent contended that since it is an admitted fact that the writ petitioner was unauthorizedly absent and the said fact was also borne out of the record, no separate charge-sheet as contended by the writ petitioner is required. The learned counsel also pointed out from the enquiry report dated 17.11.2008 that the petitioner had appeared before the Enquiry Officer on 14.11.2008 and admitted the guilt. The penalty imposed against the petitioner under the impugned order i.e., reduction to the lower post of Assistant Registrar is a major penalty as specified in Rule 9 (vi) of CCA Rules, 1991. Rule 20 which provides the procedure for imposing the major penalties states that no major penalty shall be imposed except after an enquiry is held in accordance with Rules 20 & 21. Rule 20 (3) mandates that the disciplinary authority himself has to draw up the substance of imputations of misconduct into definite articles of charge and the same shall be served on the delinquent along with the statement of imputations of misconduct and a list of documents and witnesses requiring the delinquent to submit a written statement of his defence and whether he desires to be heard in person. After receiving the written statement of defence from the delinquent, the disciplinary authority may itself inquire into the articles of charge or appoint an inquiring authority for the said purpose. Rule 20 (7) further made it clear that the Inquiring Authority has to give a notice in writing as to the date fixed for enquiry and an opportunity should be given to the delinquent to avail the assistance of any other Government Servant to present the case on his behalf. Rule 21 also provides in detail the action to be taken by the disciplinary authority on receipt of the enquiry report. Admittedly no such procedure was followed in the present case. As noticed above, no opportunity was given to the petitioner to submit his written statement in defence before appointing the Enquiry Officer and the so-called enquiry was conducted without any notice in writing to the petitioner. Thus it is clear that there was a clear violation of the procedure prescribed under the CCA Rules and therefore the impugned order dated 30.12.2008 is liable to be set aside. Nothing could be placed before this Court by the 1st respondent to show that any fresh Rules have been framed by the NIMS to deal with the disciplinary cases arising in the Institute. Hence, the procedure prescribed in CCA Rules alone is applicable. It is also relevant to notice that during the pendency of this writ petition the petitioner retired from service on 31.5.2009 on attaining the age of superannuation. In the circumstances, while setting aside the impugned order dated 30.12.2008, it is made clear that this shall not preclude the respondents to take appropriate action as permissible under law against the petitioner for the alleged irregularities, if so advised. Writ Petition is accordingly disposed of. No costs. ____________ G. ROHINI,J. Dt. 30.12.2009 gbs [1] 2006 (1) ALT 661 (F.B.)