IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.25708 of 2005 Between: S.Krishna Murthy, s/o S.Narasimhulu, A.P.Housing Board Mahabubnagar (Housing), 211, Phase VI, KPHB Colony, Mahabubnagar District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Housing (Vig.Cell) Department, represented by its Secretary, Secretariat Buildings, Hyderabad. 2 The Vice Chairman & Housing Commissioner, A.P.Housing Board, Hyderabad. .....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, order or direction more particularly one in the nature of writ of mandamus declaring the Memo no.1218/Vig.Cell/2001-24 dt.23-6-2005 issued by the 1st respondent, as arbitrary, illegal, violation of principles of natural justice and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: SMT.G.JYOTHI KIRAN Counsel for the Respondents: GP FOR HOUSING The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.25708 of 2005 ORDER; This Writ Petition is filed seeking a Mandamus declaring the Memo No.1218/Vig.Cell/2001-24, dated 23-6-2005 issued by the 1st respondent, whereunder the petitioner was directed to show cause as to why the punishment imposed by the disciplinary authority shall not be revised by enhancing it to that of removal from service, as arbitrary and illegal. It appears, while the petitioner was working as Deputy Executive Engineer in Andhra Pradesh Housing Board, Mahabubnagar, respondent No.2 initiated disciplinary proceedings against him alleging that it had been brought to its notice that certain officials of the Housing Board showed favouritism in selling the plots belonging to the A.P. Housing Board at Kukatpally Housing Board Colony and that the Estate Officer of the Board divided one 170 square yards open plot, lying adjacent to Quarter No.B.74, Kukatpally III Phase into 2 plots measuring 80 and 90 square yards and sold them to Smt.Radha Devi and K. Ahseervadam, respectively at a cheaper rate in the year 1995 while he was working as Deputy Executive Engineer (Land) and registered them in Sub-Registrar’s Office, Kukatpally. Further, subsequently, the purchasers sold the said plots to one P.Suryanarayana Raju and thereby, the Board employees caused loss of revenue to the Board. A regular enquiry was ordered by the 1st respondent under Rule 20(2) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules,1991 (for short ‘the Rules’) by appointing an Enquiry Officer. The Enquiry Officer framed the following charge: “That he willfully split the land measuring 170 sq.yards adjacent to the Qtr.No.B-74, Kukatpally Phase-III into two parts of 80.00 sq.yards and 90.00 sq.yards and sold it to two private persons, who are not adjacent owners. He violated the instructions to obtain the sanction of the Govt. as per G.O.Ms.No.20, Housing, dated 11.6.1984 for the sale of land measuring over 100.00 sq.yards.” After conducting enquiry, the petitioner was imposed a punishment of stoppage of one increment with cumulative effect by an Order dated 29-3-2003. Thereafter, 1st respondent having taken up the matter suo motu issued the impugned show cause notice. Hence, this Writ Petition. Respondent No.1 filed a detailed counter denying the allegations made by the petitioner. It is contended that the Enquiry Officer has conducted enquiry and submitted a report to the Government. While taking further action on the said Enquiry Officer’s report, it was found necessary that the 2nd respondent, who is the disciplinary authority, had to frame charges against the petitioner and, therefore, the 2nd respondent was requested to frame charges against the petitioner afresh and to initiate disciplinary action by following due procedure laid down under the Rules and send report of compliance for taking further action as per sub-rule 21(a) of Rule 20 of the Rules. In pursuance thereof, the 2nd respondent framed Articles of Charge vide Proceedings dated 28-9-2002. Petitioner submitted his written statement. But, the 2nd respondent felt that the explanation was not at all satisfactory and convincing and there is a prima facie case to conduct a regular enquiry into the irregularities that took place in the matter and as such, appointed an Enquiry Officer as per Rules. The Enquiry Officer took up the enquiry and submitted his report. The enquiry report revealed that an open plot measuring 170 sq.yards adjoining Qr.No.B-74 at Kukatpally Phase-III belonging to A.P. Housing Board was intentionally split up into two plots of 80 and 90 sq.yards, respectively and sold them to Smt. Radha Devi and K. Aseervadam vide Proceedings dated 12-12-1994 of the Vice- Chairman & Housing Commissioner, A.P. Housing Board. In the said transaction, several irregularities were noticed, as the above named two purchasers are not adjacent allottees and that the recommendation to sell the land belonging to the A.P. Housing Board was against the Rules. Though the total extent of land was 170 sq.yards, it was intentionally split up into two plots to avoid obtaining permission from the Government, since as per Orders issued in G.O.Ms.No.20, Housing, dated 11-6-1984, Government’s approval is a must for sale of land where the extent is 100 sq.yards. Though the plot admeasuring 170 sq.yards has got commercial value, it was not put to public auction, in which event, it would have definitely fetched more revenue to the Board. Further, the ‘No Objection Certificates’ from the adjacent house owners as well as Municipal Corporation/Municipality were not obtained. Surprisingly, the two purchasers of the above plots, have immediately after registration in their names sold away the same to one P.Suryanarayana Raju, Contractor, who later constructed a complex on the said land, which resulted in defeating the very purpose of allotment of the land to them. In view of the above irregularities, the Enquiry Officer found the petitioner guilty. However, the disciplinary authority imposed a punishment of stoppage of one increment with cumulative effect. Respondent No.1 having examined the matter, observing that the charges held to be proved against the petitioner in the enquiry were grave in nature and that since the punishment awarded by the 2nd respondent in Proceedings dated 23-9-2003 is not commensurate with the gravity of the charges proved, found that it needs revision. Further, it is stated that Rule 40 of the Rules confers powers on the Government, among others, to revise any order of penalty made under the aforesaid Rules. Respondent No.1 examined the matter further keeping in view the aforesaid provisions. In exercise of the powers conferred under Rule 40 of the Rules, Government have decided to revise the orders of penalty imposed by the 2nd respondent; therefore, the impugned show cause notice was issued. While denying the contention of the petitioner that the show cause notice indicates pre-determined mind of the 1st respondent, it is submitted that the petitioner instead of exhausting the opportunity provided, has approached this Court. The Writ Petition is devoid of merits and is liable to be dismissed. Learned counsel for the petitioner strenuously contended that the 1st respondent has no authority under the law to take up suo motu revision on its own. It is further contended that merely because the Rules are adopted mutatis mutandis for conducting enquiry against the employees of the A.P. Housing Board, that itself does not confer power on the 1st respondent to take up suo motu revision of the Order passed by the 2nd respondent. It is also contended that Respondent No.1 is not conferred with any power under Rule 40 of the Rules as is stated in the counter. That power is to take action against the regular employees of the Government, who are governed by the Rules made under Article 309 of the Constitution of India. In this case, adoption of A.P. Civil Services (CCA) Rules,1991 does not automatically confer any right on the 1st respondent to review or revise the Order passed by the 2nd respondent. Respondent No.2 being the appointing authority and disciplinary authority had taken a decision on merits of the case. Respondent No.1 has no power whatsoever to revise the Order passed by the 2nd respondent. Therefore, the 1st respondent has no jurisdiction to issue the impugned show cause notice. Further, the allotment of plots in question is not within the power of the petitioner. Petitioner did all this with due approval of the higher authorities, i.e., Executive Engineer and Superintending Engineer, who have fixed the market value and also approved the proposed sale. Without there being a recommendation from the Superintending Engineer, petitioner could not have undertaken any such registration of plots in favour of Smt.Radha Devi and K. Aseervadam. The very punishment of stoppage of one increment with cumulative effect imposed on the petitioner itself is unfortunate. Petitioner cannot be imposed any further punishment for the innocuous misconduct alleged against him. Whereas, learned counsel appearing for respondents supported the impugned show cause notice and stated that the Government has all the power to revise/review the Order passed by the 2nd respondent and impose higher punishment in a given case. Accordingly, the impugned show cause notice was issued. Instead of participating in the proceedings by filing objections etc., petitioner has straight away approached this Court by way of filing this Writ Petition. Therefore, the Writ Petition is not maintainable. Apart from this, the charges levelled against the petitioner are grave in nature and they, having been proved, there is every necessity of reviewing/revising the Order passed by the 2nd respondent. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned Memo and other material made available on record. The fact that the petitioner could not have sold the said two plots in favour of Smt.Radha Devi and Aseervadam without the permission of the Executive Engineer and the Superintending Engineer is not denied. It is also a fact that the neighbouring owners of the vacant plots have not raised any objection at any point of time for selling the said plots nor did they make any application for purchase of the same. In fact, in the enquiry, it is revealed that the plot could not have fetched more than the value for which it was sold. No action has been taken against the Executive Engineer or Superintending Engineer, who are superiors to the petitioner and on whose approval and sanction the petitioner had to transfer the plots in the name of the said two individuals. May be, those two individuals have again sold their plots to another person and that the subsequent purchaser raised some structures therein. That itself does not mean that the petitioner could have been blamed out rightly without taking any action against the higher officials. Be that as it may, since there was some lapse on the part of the petitioner, he was imposed a punishment of stoppage of one increment with cumulative effect. Now under the impugned show cause notice, the said punishment was sought to be disturbed after about two years in the guise exercising suo motu power under Rule 40 of the Rules. On 2-12-2005 interim stay was granted for a period of four weeks and thereafter, by an Order dated 28-1-2006, the same was extended until further orders. Though a counter was filed, no vacate stay petition was filed and thus the matter was posted for final hearing. In the meanwhile, petitioner attained the age of supernnuation and retired from service on 30-9-2007. Now it may not be desirable at this length of time to again examine as to whether the Government has suo motu power to revise the orders passed by the 2nd respondent or not. Further, the charge framed against the petitioner is trivial in its nature and the facts would reveal that the petitioner was not the ultimate authority to take any decision in the matter - it was the Executive Engineer and Superintending Engineer against whom no action has been taken by the respondents, but for their approval, the petitioner could not have proceeded further in the matter. Insofar as the value of the land is concerned, there is nothing on record to show that it was sold at a cheaper price. In fact, the plots were sold in favour of Smt.Radhadevi and Aseervadam at the rate of Rs.472/- per square yard way back in the year 1994 and that itself would show that the land was sold at a reasonable price. Petitioner was sufficiently punished by imposing a punishment of stoppage of one increment with cumulative effect. In the facts and circumstances of the case, I am of the considered opinion that the ends of justice would be met, if the 1st respondent drops further proceedings against the petitioner pursuant to the impugned show cause notice. Therefore, the respondents are directed to drop the further proceedings pursuant to the show cause notice dated 23.6.2005 and consequently settle all the retiral benefits including pension, if any, payable to the petitioner as early as possible, but not later than three months from the date of receipt of a copy of this order. With the above directions, the Writ Petition is disposed of. No order as to costs. 18-3-2008 prk