HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 18716 of 2006 DATED 13th October, 2011 BETWEEN K.Raji Reddy …….Petitioner and The Joint Registrar/District Cooperative Officer, Karimnagar and ors. ……Respondent HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 18716 of 2006 ORDER: The petitioner is working as a Staff Assistant in the second respondent-Bank. While so, he was charge sheeted under Memo dated 5.11.2002 on the ground that he had furnished a fake degree certificate from a fake university and cheated the bank by drawing ineligible emoluments which constitutes gross misconduct as per the provisions of the IT Award dated 15.6.1997. Not being satisfied with the explanation submitted by the petitioner on 9.12.2002, the second respondent issued show cause notice of punishment dated 12.12.2002, to which, the petitioner submitted his explanation. Rejecting the explanation of the petitioner on the premise that it was not convincing, the fourth respondent imposed the punishment of stoppage of two annual grade increments with cumulative effect duly withdrawing the graduation increments sanctioned earlier and to recover the amounts paid so far towards the graduation increments under the impugned order dated 22.1.2003. When the said order was questioned before this Court in Writ Petition No. 1727 of 2003, this Court by order dated 22.1.2003 directed the petitioner to avail the statutory remedy of appeal before the appellate authority. The appeal stated to have been filed by the petitioner was rejected. Questioning the said rejection, the petitioner filed Writ Petition No.4452 of 2004 and this Court by order dated 24.6.2004 dismissed the said Writ Petition as not maintainable, giving liberty to pursue appropriate alternative remedies. While the things stood thus, the firth respondent issued further memo dated 29.4.2006 under Section 60(1) of the A.P. Co-operative Societies Act,1964 summoning the petitioner in relation to the very same charge of sanctioning of two increments for possessing graduation pursuant to production of fake degree certificate from a fake University. In view of the subsequent changes pursuant to the decisions of the Apex Court and High Court relating to maintainability of the writ petitions against Cooperative Central banks, the petitioner filed the present Writ Petition. The learned Counsel for the petitioner vehemently contended that the impugned order dated 22.1.2003 was passed without following the due procedure viz., appointment of Enquiry Officer, adducing evidence of both sides and then submitting the enquiry findings and giving opportunity to the petitioner etc.,. It is his contention that the impugned punishment was imposed upon the petitioner without conducting a regular enquiry as required under law. He further submitted that with reference to the very same charge, the first respondent has issued memo dated 29.4.2006 under Section 60(1) of the AP Co- operative Societies Act, 1964 ,which is illegal and arbitrary, in as much as it is a settled law that against a very same single charge, two charge memos and two punishments cannot lie. A separate counter affidavit is filed on behalf of the second and third respondents reiterating the steps taken by the petitioner in agitating the impugned order. Nowhere in the counter they have stated that a regular enquiry was conducted into the charges levelled against the petitioner. Further, the counter is silent as to the issuance of the second memo dated 29.4.2006 for the very self same charge. The first respondent also filed a separate counter affidavit, wherein he surprisingly stated that awarding of punishment by the second respondent upon the petitioner on the charge of producing a fake certificate with regard to the acquisition of graduation qualification from a fake university was not within his knowledge. However, he stated that pursuant to the proceedings dated 5.3.2003 of the Commissioner for Cooperation & Registrar of Cooperative Societies, an enquiry was ordered against the petitioner along with others who are the employees of the second respondent-bank under Section 51 of the AP Co-operative Societies Act,1964 basing on the report dated 26.3.2002 of the Deputy Registrar/Audit Officer, District Cooperative Central Bank Limited, Karimnagar, alleging that the petitioner and other employees working in the second respondent-bank committed financial irregularities, one such being illegally getting sanction of incentive increments upon production bogus degree certificates from non-existing universities. Pursuant thereto, the District Co-operative Officer, Karimnagar was appointed as an Enquiry Officer to conduct an enquiry in the matter. Upon submission of the enquiry report on 30.4.2004, the District Collector vide his order dated 1.6.2005 authorized the Joint Registrar/District Co- operative Officer, Karimnagar, to conduct surcharge enquiry under Section 60 of the AP Co-operative Societies Act,1964 and in pursuance of the same, the petitioner and other employees against whom surcharge enquiry was ordered, was issued impugned memo dated 29.4.2006, to which the petitioner had submitted his explanation on 12.7.2006. It is further stated that enquiry under Section 60 of the Act is in progress. Perused the case file scrupulously. It is well-settled principle of law that an employee cannot be charged with the same misconduct twice, either by issuing two charge memos or by conducting two departmental enquiries. As regards the first impugned proceedings dated 22.1.2003, a bare perusal of the same would reflect that no regular enquiry was ordered and conducted de hors calling for an explanation. On this aspect the law is well settled that if the statements made by the delinquent employee do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of punishment passed against him. It is utmost important that, before taking disciplinary action against a charged employee, a proper departmental enquiry must be held against him after supplying him with a charge- sheet, and he must be given a reasonable opportunity to meet the allegations levelled against him in the charge- sheet. The departmental enquiry is not an empty formality. It is a serious proceeding intended to give the officer concerned a chance to meet the charges and to prove his innocence. In the absence of any such enquiry, it would not be fair to strain facts against the charged employee. ( See: Jagadish Prasad Saxena v. The State of Madhya Bharat, AIR 1961 SC 1070). Giving an opportunity of being heard or holding an enquiry is a check and balance concept that no one's right be taken away without giving him/her an opportunity of being heard in compliance with the rules of natural justice or where the statute so requires. In view of the settled legal principle of law, in as much as the issuance of proceedings dated 22.1.2003 is not preceded by a regular enquiry, the same is liable to be set aside and accordingly set aside. As regards the second impugned memo dated 29.4.2006, the first respondent in his counter clearly stated as to the steps taken by him. He stated that pursuant to the proceedings dated 5.3.2003 of the Commissioner for Cooperation & Registrar of Cooperative Societies, an enquiry was ordered against the petitioner along with others who are the employees of the second respondent-bank under Section 51 of the AP Co-operative Societies Act,1964 basing on the report dated 26.3.2002 of the Deputy Registrar/Audit Officer, District Co-operative Central Bank Limited, Karimnagar, alleging that the petitioner and other employees working in the second respondent-bank committed financial irregularities, one such being illegally getting sanctioned the incentive increments upon production of bogus degree certificates from non-existing Universities. Pursuant thereto, the District Co-operative Officer, Karimnagar was appointed as an Enquiry Officer to conduct an enquiry. Upon submission of the enquiry report on 30.4.2004, the District Collector vide his order dated 1.6.2005 authorized the Joint Registrar/District Co-operative Officer, Karimnagar, to conduct surcharge enquiry under Section 60 of the AP Co-operative Societies Act,1964 and in pursuance of the same, the petitioner and other employees against whom surcharge enquiry was ordered, was issued impugned memo dated 29.4.2006, to which the petitioner had submitted his explanation on 12.7.2006. It is further stated that enquiry under Section 60 of the AP Co-operative Societies Act,1964 is in progress. In view of the categorical statement made by the first respondent in his counter, and as the enquiry initiated under Section 60 of the AP Co-operative Societies Act,1964 is in progress, no interference is warranted with the impugned memo dated 29.4.2006, as any adjudication of the lis on merits at this stage would affect the so called enquiry which is in progress. For the foregoing reasons, the proceedings dated 22.01.2003 issued by the second respondent are hereby set aside. However, the enquiry initiated against the petitioner pursuant to the Memo dated 29.4.2006 under Section 60 of the AP Co-operative Societies Act, 1964 by the first respondent can go on to reach its logical end. The Writ Petition is partly allowed to the extent indicated above. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 13th October, 2011. Msnro