IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos : 18393 and 18405 of 2008 WRIT PETITION No. 18393 of 2008 Between: B.Subba Rao S/o. Late) Kotaiah Krishna District ..... PETITIONER AND 1 A.P. State Housing Corporation Ltd Rep.by its Managing Director 3-6-184 Urdu Gally, Himayathnagar,Hyderabad 2 The Collector & Executive Director APSHC Ltd Krishna District Machilipatnam .....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 declaring that proceedings issued in Nog.Vig-1/6310/KRSH/2007 dt.31-7-2008 as illegal arbitrary and discriminatory violating article 14&16 of the Constitution of India and further declare that petitioner is entitled to continue in service as TWI (RP) of Bapulapadu(M) of Krishna District. Counsel for the Petitioner:MR.M.SURENDER RAO Counsel for the Respondent No.: GP FOR HOUSING WRIT PETITION No : 18405 of 2008 Between: K.Uma Shanker S/o. K.V.Ratnam Nuzvid Division, Krishna District. ..... PETITIONER AND 1 A.P.state Housing Corporation Ltd., Rep. by its Managing Director, 3-6-184, Urdu Gally, Himayathnagar, Hyderabad. 2 The Collector & Executive Director, APSHC Ltd., Krishna District, Machilipatnam. .....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 especially one in the nature of writ of Mandamus declaring that proceedings issued in No. Vig-1/6310/KRSH/2007, dt. 31-7-2008 as illegal, arbitrary and discriminatory violating article14 & 16 of the Constitution of India and further declare that petitioner is entitled to continue in service as TWI (RP) of Bapulapadu Mandal of Krishna District. Counsel for the Petitioner:MR.M.SURENDER RAO Counsel for the Respondent No.: MR.K.MOHAN RAMI REDDY The Court made the following COMMON ORDER : Both these Writ Petitions can be dealt with together and decided as they substantially raise the same questions which will help in deciding the issue in common. The writ petitioner in Writ Petition No. 18393 of 2008 is working as an Assistant Engineer and the writ petitioner in Writ Petition No. 18405 of 2008 is working as the Technical Work Inspector with the 1st respondent – Andhra Pradesh State Housing Corporation Limited. On the ground that there are certain serious irregularities committed by them, in the matter of execution of various works entrusted to them, both the writ petitioners have been subjected to disciplinary proceedings. Ultimately, the Managing Director of the 1st respondent Corporation was pleased to pass orders on 31st July 2008 imposing the punishment of dismissal from service apart from proposing to recover the loss that is said to have been suffered by the Corporation. I have heard Sri M. Surender Rao, learned counsel for the petitioners and Sri Meharchand Noori, learned counsel for the 1st respondent Corporation. Learned counsel for the writ petitioners submits that dismissal from service is one of the major punishments listed in the A.P. Civil Services (Classification, Control and Appeal) Rules, which Rules have been adopted by the 1st respondent Corporation. The aforementioned Rules have also specified, in Rule 20, the detailed procedure that has got to be followed for the purpose of imposing major penalties. It has been specifically set out in sub-rule (11) thereof that the Enquiring Authority shall, if the servant fails to admit his guilt, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge framed against him and in the process of conducting the enquiry, examine such witnesses in the presence of the charge-sheeted employee and also take on record of the enquiry such documentary evidence as is produced after a copy of the same is made available to the delinquent employee. The learned counsel submits that this procedure has been completely bypassed in the instant case. The Enquiry Officer appointed by the Corporation has not chosen to examine any witnesses in the presence of the delinquent employees. No documents consequently came to be marked, but however, the Enquiry Officer has preferred to enquire from the delinquent employees as to whether they are guilty of the allegations which form the substance of the charges or not. Since the delinquent employees have denied the imputations made against them, it was required of the Enquiring Officer, during the course of enquiry, to examine such witnesses, who can speak and prove the imputations and also bring on record such material as evidence, as would be relevant for establishing the imputations. Without following this procedure, the Enquiring Officer has concluded his enquiry, based upon the statement made by the delinquent employees. The Enquiring Officer can conclude the enquiry report, if a delinquent employee admits, in no ambiguous terms, his guilt. Then, the burden of establishing the charges can be dispensed with. If the delinquent employee does not admit of the charges levelled against him, it would be incumbent for the employer to marshal such evidence, as is considered necessary and appropriate in the matter. Without producing any evidence, the Enquiring Officer could not have concluded and drawn his conclusions holding the delinquent employees guilty of the charges levelled against them. The Managing Director has no other material excepting the Enquiry Officer’s report and the record of enquiry before him while passing the impugned order imposing the major punishment of dismissal from service. Therefore, the learned counsel for the petitioners is right in submitting that the procedure prescribed for imposing the major punishment of dismissal from service has been followed completely in the breach. For failure of this procedural safeguard alone, the impugned order deserves to be set at naught. In normal circumstances, wherever there is a factual dispute centering around any particular fact, this Court would refrain from entertaining any Writ Petition against the orders of punishments imposed by the Primary Authority and on the other hand, would allow the delinquent employees to exhaust the alternative remedies by filing an appeal. The Appellate Authority would be able to apply its mind both to questions of fact and law. This rule of prudence adopted by the High Court has also an exception. Wherever, prima facie, principles of natural justice have been breached, the High Court would not hesitate to entertain a Writ Petition and set right the malady at that stage itself. In the instant case, the two writ petitioners have been literally condemned without being afforded a fair and reasonable opportunity to establish their defence. No material in the form of evidence has been brought on record of the Enquiring Officer against both the writ petitioners. Therefore, I consider that not preferring an appeal against the orders of dismissal passed by the Managing Director would not be fatal. At the same time, it should also be recorded that, in his usual fairness, Sri Meharchand Noory, learned counsel also submits that the case should be remanded back to the Corporation to enable it to conduct an enquiry against both the delinquent employees, duly following the procedure prescribed in the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, as the imputations made against both the writ petitioners are far serious in nature. The submission of the learned counsel for the respondent Corporation deserves consideration. When serious allegations are made particularly involving financial irregularities, which touch upon the integrity of the employee concerned, an opportunity should be provided to the employer to bring home, in accordance with the procedure prescribed, the guilt of the delinquent employees. I, therefore, consider it appropriate to permit the 1st respondent – Corporation to proceed de novo against both the writ petitioners. It is open to the Corporation to appoint any other Enquiring Officer as well. It shall be open to the Corporation to lead evidence, both oral and documentary and provide all fair and reasonable opportunities to the writ petitioners to cross-examine such witnesses, as are produced on behalf of the Corporation and also produce any witnesses, who can speak in support of their cause. It is also certainly open to the writ petitioners to produce such material, as is considered appropriate by them, to establish their defence. I hope and trust that this time around, no infirmity will be committed in this regard by the Corporation while proceeding against the writ petitioners. Without expressing any opinion on the merits of the matter, I set aside the impugned order passed by the Managing Director imposing the punishment of dismissal from service against the writ petitioners, leaving liberty to the 1st respondent Corporation to proceed with the disciplinary proceedings afresh. Both the Writ Petitions stand allowed, as indicated supra. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 30th June 2009 Note: Issue CC in one week. ksld ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KSRANI}