THE HON'BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.1106 of 2002 ORDER: This is a service matter. Two points are raised in this writ petition. The first is whether the order/proceedings No.1823/ Admn.IV/DC-4/93-2 dated 27.12.1997 of the first respondent i.e. the Managing Director of the Andhra Pradesh Dairy Development Co- operative Federation Limited (for short ‘Corporation’) awarding a penalty of stoppage of one annual grade increment with cumulative effect to the petitioner is valid. The second is whether the subsequent order/proceedings No.3682/Admn.IV/DC-2/99 dated 18.12.1999 of the first respondent while treating the period of suspension as leave directing that the subsistence allowance paid to the petitioner during suspension period be recovered in lump sum from the salary of the petitioner after he was reinstated into service is invalid. 2. Both the points arise in the following circumstances. At the relevant time the petitioner was working as Store Keeper in Khammam Dairy Unit belonging to the Corporation. A disciplinary enquiry was commenced against him on certain irregularities said to have been committed by him. It is seen that altogether six charges were framed against him regarding the irregularities. An enquiry officer was appointed to hold a departmental enquiry and the said officer submitted his report to the effect that the said charges were proved. After receiving the explanation of the petitioner regarding the enquiry officer’s findings and the punishment, the first respondent by order dated 27.12.1997 (covered by point No.1) accepting the enquiry report and rejecting the explanation of the petitioner awarded the penalty of stoppage of one annual grade increment with cumulative effect. It is stated by the petitioner that he also filed a departmental appeal against the said order dated 27.12.1997 but that was rejected as time barred. Subsequently the Managing Director of the Corporation issued the subsequent order dated 18.12.1999 (covered by point No.2) regularizing the suspension period of petitioner as duty treating it as leave and directed recovery of subsistence allowance paid to the petitioner during the suspension period on the ground that rules prescribe for such recovery. The petitioner is challenging the aforesaid two orders in this writ petition. 3. Regarding the first point which relates to the validity of the order dated 27.12.1997 imposing the penalty, Sri P.Sridhar Rao the learned counsel for petitioner, repeating the pleadings of the petitioner argued that the charges framed against the petitioner were all baseless and the findings of the enquiry officer are also not sustainable on evidence and therefore the said order should be set aside. On the other hand, Sri Dilip Rao the learned counsel for the Corporation pointed out that all the charges were based on sufficient material and the departmental enquiry report also is based on sufficient evidence and consequently there is no ground whatsoever to hold that the said charges and enquiry report are baseless and since they are supported by evidence, the order imposing the penalty cannot be disturbed. 4. It may be noted that details of the charges are given in the counter filed on behalf of the Corporation. The first charge relates to irregular maintenance of the stores, mechanical articles and scrap materials dumped in stores without maintaining an account. The second charge relates to the petitioner residing at Vijayawada and attending the office daily by going to Khammam which was his head quarters and he was also irregular in that manner in attending to his duties. The third charge relates to improper maintenance of the stores and that as a result of the same some polythene film meant for packing of liquid milk was damaged resulting in a monetary loss to the respondent-Corporation. The fourth charge relates to improper maintenance of stores and as a result of that four bags of skimmed milk powder were found in damaged condition and that stock register in respect of the same was also not maintained properly. The fifth charge related to the failure of the petitioner to produce keys of the Fodder Seed godown so as to make it available to the other competent officers or staff. The last and the sixth charge related to maintenance of Acid cans and scrap materials in a highly irregular and shabby manner. 5. As already stated supra the enquiry officer found fault with the petitioner on the above charges and submitted a report accordingly. A copy of the enquiry report is not furnished but the counter shows that the explanation of the petitioner for all the charges has been considered by the first respondent who is said to be the disciplinary authority and that the explanation offered by the petitioner is not convincing. One plea taken by the petitioner was that a copy of the enquiry report was not furnished to him before taking the decision regarding imposition of the penalty but this is denied by the first respondent in the counter filed on behalf of the respondent- Corporation and it is specifically stated that the said enquiry report was furnished to him. It is also stated that pursuant to the enquiry report a show cause notice was also issued proposing the punishment of stoppage of one annual grade increment with cumulative effect and the petitioner also submitted his explanation dated 21.07.1997 again denying the allegations in the charges. Thus it cannot be said that the petitioner was not given sufficient opportunity. 6. As seen from the impugned order relating the first point it is clear that the petitioner was given sufficient opportunity and having regard to the charges the first respondent took the decision to award a penalty of stoppage of one annual increment with cumulative effect. The petitioner’s counsel has not been able to show any convincing reason to conclude that the enquiry has been vitiated in any manner and the impugned order shows that the first respondent considered the matter and passed it. The petitioner also filed appeal against that order but with delay and it was dismissed on that ground. In the circumstances I am of the opinion that the petitioner has failed to make out a case calling for interference with the order awarding the penalty. The first point is accordingly decided against the petitioner. 7. Then turning to the second point, the petitioner’s contention is that subsistence allowance is paid during the period of suspension to provide for the sustenance of an employee and therefore once the disciplinary proceedings are completed and a penalty is imposed and an employee is reinstated the question of recovery of subsistence allowance does not arise and therefore the order covered by the second point is bad. It is true that this contention may apparently sound forceful but having regard to the disciplinary rules or the standing orders of the Corporation governing its employees this contention cannot be accepted. 8. It is the plea of the respondents that the disciplinary matters are governed by the standing orders of the Corporation. Rule 28 (4)(c) of the said standing orders (relevant portion of which is filed) would read that in case the suspension period is treated as leave the subsistence allowance paid during the period of suspension should be recovered in lump sum or in instalments depending upon the amount to be recovered. The petitioner has not challenged the validity of this rule and he merely questioned the order by which the subsistence allowance was ordered to be recovered. As the said rule is not challenged it is clear that that is a minus point for the petitioner under this point. 9. Here it may be noted that Rule 28(4)(c)(b) of the said standing orders says that where an order imposing a penalty of stoppage of annual grade increment with cumulative effect is awarded the workman i.e. the petitioner herein shall be deemed to be not on duty during the period of suspension and the suspension period will be treated as leave for which the suspended employee is eligible. Then Note (i) says that in case suspension period is treated as leave subsistence allowance paid during the period of suspension will be recovered in lump sum or in instalments depending upon the amount to be recovered. This is applicable to petitioner and not Note (ii) or Rule 28(4)(d). 10. This has been implemented by the impugned order falling under the second point. It reads that while imposing the penalty by the order dated 27.12.1997 the authority concerned has not regularized the suspension period and therefore that was regularized and treated as leave in the case of petitioner and following the above rule the first respondent held that since the suspension period is treated as leave the subsistence allowance paid to the petitioner should be recovered. It can therefore be said that the concerned authority has acted consistent with the rules. As the above rule is not challenged it follows that this court cannot go into the validity of the impugned order falling under the second point as it is consistent with the rules. It should also be mentioned here that no dispute has been raised regarding the applicability of the above rule to the petitioner. 11. One contention which was raised by the petitioner was that there is a delay of nearly two years in passing the second order but this delay cannot be a ground to set it aside as what has been done by the second order is to regularize the period of suspension of the petitioner which ought to be done and while regularizing that period the first respondent consistent with the rules directed recovery of subsistence allowance. Thus the said order cannot be said to be invalid and therefore this point is also decided against the petitioner. 12. In view of the decision under points 1 and 2 which went against the petitioner, it follows that the writ petition must fail and it is accordingly dismissed. No costs. _____________________ N. RAVI SHANKAR 13th September 2011 CVRK