IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO WRIT PETITION NO.26426 of 1999 Between: A.Prabhakar son of A.Venkatasubbanna, Peddachapalli Village, Kamalapuram Mandal Cuddapah District. ...PETITIONER AND 1. Andhra Pradesh Beverages Corporation Ltd., rep.by its Managing Director, Hyderabad. 2. The Joint Collector cum Ex-officio Executive Director, A.P.Beverages Corporation Ltd., I.M.L.Depot, Cuddapah. 3. The District Manager, A.P.Beverages Corporation Ltd., I.M.L.Depot, Cuddapah. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, or order or direction more particularly one in the nature of Writ of Certiorari. Calling for the records pertaining to file Rc.No.I.M.L.Depot.CDP.ESTT.99- 2000-A:/4496, dated 15.10.1999 and declare the same is without jurisdiction and violative of Articles 14 and 21 of the Constitution of India and consequently quash the same by declaring the same as illegal, null & void and direct the respondent to reinstate the petitioner into service. Counsel for the Petitioner: MR.M.LAXMAN Counsel for the Respondents: MR.G.MANOHAR The Court made the following: THE HON'BLE MR JUSTICE B.PRAKASH RAO WRIT PETITION NO.26426 of 1999 ORDER: Heard Sri M.Laxman, the learned counsel appearing for the petitioner and Sri G.Manohar, the learned counsel appearing for the respondents. The petitioner, who has been working as an attender in the first respondent- Corporation, files this Writ Petition, inter alia, seeking to assail the impugned proceedings dated 15.10.1999, dismissing the petitioner from service on the ground of unauthorized absence. The facts leading to the present case are that the petitioner was appointed as an attender on 24.12.1986 and since then, he has been discharging his duties to the utmost satisfaction of the authorities. However, for his absence in the two spells, i.e., from 07.03.1998 to 28.03.1998 and from 11.04.1998 to 10.09.1998, the petitioner was suspended from service on 10.09.1998. Thereafter, a charge memo was issued to him on 10.10.1998, which according to the petitioner was not served on him. In view of the same, the respondents proceeded and issued a show cause notice for removal on 03.11.1998 and the enquiry officer, who has been appointed, submitted a report on 13.11.1998. According to the petitioner, he did not receive any notice of enquiry nor there is any opportunity provided to him to contest the case. Ultimately, on the basis of the said report, the orders were passed on 11.02.1999, where under, having found that the petitioner was responsible for such unauthorized absence and the said charge having been proved beyond doubt and there was violation of Conduct of Rules of the Corporation, the third respondent imposed a punishment to the effect of upholding two increments with cumulative effect from his pay with effect from the date of his appointment. The very same order also states that he was directed to produce medical certificates from the Medical Board for the genuineness of his illness and fitness to join duty within ten days from the date of receipt of the order. The total absent period was also treated as punishment and without pay, and reinstated him into service, subject to the medical certificates produced by him from the Medical Board. It is submitted that thereafter, he was issued a memo on 30.03.1999 calling upon to produce the medical certificates. Since no medical certificates were forthcoming, the impugned orders were passed on 15.10.1999 dismissing the petitioner from the service on the ground of unauthorized absence and also holding that the petitioner has failed to furnish explanation to the charges. Hence, the Writ Petition. The learned counsel for the petitioner submits that for the allegation of unauthorized absence, there was no proper service of charges nor there was any enquiry in his presence and the entire proceedings are vitiated. On the basis of the same, the ex parte orders were passed for stoppage of increments and therefore, the question of directing to produce the material once again and passing another order of punishment does not arise. Further, it is also pointed out that the second respondent is not the competent authority to pass the orders of dismissal from service. The learned counsel for the respondents while trying to repel the above said contentions, submitted that admittedly, the petitioner had unauthorizedly absent from his duties and also failed to substantiate any reason in his support by producing the material. Even though the petitioner was called upon to produce any such certificates as per the order dated 11.02.1999 and also as per the memo dated 30.03.1999, the same was not complied with and therefore, the impugned orders were passed. Considering the submissions made and also on perusal of the material available on record, the question which crops up for consideration is as to whether the impugned order dismissing the petitioner from service is vitiated and liable to be set aside? There is no dispute to the aforesaid events, commencing from the date of joining of the petitioner into service on 24.12.1986. There is also no dispute that the petitioner was absent for the aforesaid two spells i.e., from 07.03.1998 to 28.03.1998 and from 11.04.1998 to 10.09.1998 and subsequently, he was suspended from service. The case of the petitioner is that even though the respondents issued a charge memo dated 10.09.1999 on the petitioner, the same was not served. There is no serious denial on the part of the respondents in this regard nor any acknowledgment was shown as to the service of the charge memo. Further, a show cause notice was also issued on 03.11.1998. However, according to the petitioner, there was no notice of enquiry or any enquiry held in his presence and there is nothing on record to show that the petitioner was duly served with the notice of enquiry, which ultimately led to the show cause notice dated 13.11.1998, whereupon, the award dated 11.02.1999 was passed punishing him by withholding two increments with cumulative effect from his pay with effect from the date of his joining into duty. However, subsequently the very same order continued when the petitioner was called upon to produce the medical certificates in support of his absence, failing which further action will be taken. The same was followed by notice dated 30.03.1998 for the production of the medical certificates. Since no medical certificates were produced by the petitioner, the impugned orders were passed on 15.10.1999 dismissing the petitioner from the service on the ground that the alleged illness of the petitioner was not supported cogently by any relevant piece of evidence. A perusal of both the orders dated 11.02.1999 and 15.10.1999, makes it quite clear that in each order, there is punishment, in one for stoppage of increments and in another for dismissal from service. Though the learned counsel for the respondent sought to make it clear that it is only to provide an opportunity to the petitioner to substantiate his reliance, time was granted for production of the medical certificates and since no such certificates were filed, he was rightly dismissed from the service. However, the fact remains that even if the respondent wants to conduct any fresh enquiry, they should have been call upon the petitioner to participate in such enquiry by giving a due notice instead of simply calling upon for production of medical certificates. Admittedly, the respondents sought to have conducted enquiry by appointing enquiry officer, who has filed a report on 13.11.1998, which admittedly was an ex parte one and the petitioner had not participated in the enquiry. Further, there is also nothing on the record to show that the report dated 13.11.1998 was served on the petitioner at any part of the time and any final show cause notice was issued. Yet under the orders dated 11.02.1999, the respondents have come to a final decision with a finding for awarding punishment of stoppage of two increments. In view of the same, the question of conducting fresh enquiry does not arise. Further, by calling upon to produce material and in consequence of failure to produce any such certificate, once again the respondents have ventured to pass the impugned orders on 15.10.1999, dismissing the petitioner from the service. Apart from this, the entire action of imposing virtually two punishments at two different stages, squarely falls in the teeth of the mandate as provided under the principles of double jeopardy and also violative of Article 20 (2) of the Constitution of India. In the circumstances it is to be held that the entire procedure as conducted since the inception of the commencement of the proceedings against the petitioner apart from being ex parte and the aforesaid principles of natural justice, is totally violative of the substantive rights of the petitioner as directed under the Constitution of India. In the circumstances, the Writ Petition is allowed and the entire impugned proceedings since inception of the petitioner, leading to the impugned orders dated 15.10.1999, are set aside. It shall, however, open to the respondents to hold a fresh enquiry after giving due notice and opportunity to the petitioner and pass orders on merits in accordance with law. The respondents shall complete the entire process of enquiry and dispose of the same within a period of three months from the date of receipt of a copy of this order. _________________ (B.PRAKASH RAO, J) 3rd February 2005 RRB That Rule Nisi has been made absolute as above. Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Thursday, the third day of February 2005. ASSISTANT REGISTRAR //True Copy// SECTION OFFICER Copy To: 1. The Managing Director, Andhra Pradesh Beverages Corporation Ltd., Hyderabad. 2. The Joint Collector cum Ex-officio Executive Director, A.P.Beverages Corporation Ltd., I.M.L.Depot, Cuddapah. 3. The District Manager, A.P.Beverages Corporation Ltd., I.M.L.Depot, Cuddapah. 4. Two CD copies.