HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO WRIT PETITION NO. 20237 OF 2009 Between: The Tirupathi Urban Development Authority (TUDA) represented by its Chairman and one another ………….Petitioners AND A Viswanatha Rao , S/o Late Venkatesh Reddy ………….Respondent ORDER: (Per Hon'ble Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed seeking to issue an order particularly one in the nature of writ of Certiorari calling for the records relating to the order dated 22.6.2009 passed in O.A.No. 4568 of 2008 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. Brief facts of the case are that the first respondent- applicant who is working as Junior Assistant, was dismissed from service by the second petitioner- Tirupati Urban Development Authority (TUDA) vide proceedings ROC No. 1480/C1/2005 dated 14.2.2007. The respondent-applicant also was served with a Charge Memo vide proceedings dated 20.1.2008 by the second petitioner herein framing the following charges: “Article No. 1: Rule 40 and 41 u/c VIII- Referring arrangement of file of District Office Manual, Revenue Department 1959 a person has to prepare Note file on every policy making issue except simple issues and must show the gist of objects or aim or the purpose in the contents of the note for which one sought permission from the higher authorities to avoid any kind of ambiguity or misappropriation of funds and else. In this instant case Sri A. Viswanatha Rao, Junior Assistant while functioning as the only assist in L.A. Section has grossly violated the stipulated procedural aspects of note file preparation and not obtained written permission from the Land Acquisition Officer. More over, especially matters pertaining to financial commitments have to be inevitably obtained written permission to carry out any transactions i.e., preparation of bill taking pass orders entry in the cash register etc. But he did not do so. Keeping all it aside he has simply went for the encashment of cheques. As he failed to follow the procedure, he has given an opportunity for the Land Acquisition Officer to draw the amount unofficially which is a loss to the Government funds. Article No. 2: That Sri A. Viswanatha Rao while functioning as the only assistant in Land Acquisition wing should have suspected the act of the Land Acquisition Officer when she asked you to draw the money from the bank without following the procedure or maintaining a file or making an entry in the Cash book etc, for which act you have helped her for misappropriation o the Government funds. Article No. 3: Sri A. Viswanatha Rao, Jr. Assistant while functioning as assistant in Land Acquisition wing should have brought to the notice of the Vice-Chairman, T.U.D.A, who is the appointing authority and the Head of the Department, the action of the Land Acquisition Officer when she asked you to draw the amount without following he procedure and suppressed the facts and helped the Land Acquisition Officer to draw more cheques. He should inform the fact immediately when the first cheque was drawn. As you suppressed the facts, it has given an opportunity to the Land Acquisition Officer to go for drawing of the 2nd and subsequent cheques. If he has informed the fact at the first instant there would be no chance for her to go for the 2nd cheque for further drawn. Article No. 4: That Sri a. Viswanatha Rao, while functioning as Assistant in Land Acquisition wing has to question the Land Acquisition Officer when all the cheques were drawn on ‘Self’ and the cheque bearing No. 7410, dated 20.12.2003 for Rs. 5,000/- was drawn in the name of himself. If the above amount is not meant for you, the Land Acquisition Officer might have drawn the cheque on ‘Self’ as usual. If the amount was not taken by Land Acquisition Officer, you have to account for the amount for which purpose the amount is given to you with relevant receipts.” It is stated that on appeal, the appellate authority confirmed the order dated 14.2.2007 passed by the second petitioner herein. Aggrieved by the same, the respondent-applicant filed O.A.No. 4568 of 2008 to set aside the proceedings issued by the second petitioner dated 14.2.2007 and 23.4.2008. The Tribunal after considering the entire material made available on record, allowed the O.A with the following observation: “In view of the vague charge memo issued to the applicant , which is contrary to the APCS (CC&A) Rules, the whole proceedings are in utter violation of the mandatory provisions of the APCS (CC&A) Rules, 1991, the charge memo an the consequential proceedings impugned in this O.A are liable to be set aside and accordingly, they are set aside. As the applicant was under suspension at the time of removal from service, he shall be continued under suspension and the respondents are at liberty to issue fresh charge memo in accordance with rules and proceed with the disciplinary proceedings and conclude the same within a period of six months from the date of receipt of a copy of this Order and if the disciplinary proceedings are not concluded within the stipulated period, the respondents shall reinduct the applicant into service without prejudice to the disciplinary proceedings pending against him. Thus the O.A is allowed. No order as to costs.” The learned counsel appearing for the petitioners contended that no prejudice is caused to the respondent-applicant and Rule 20(5) of Classification, Control and Appeal Rules (for short “CCA Rules”) is made applicable in this case. He also relied on the larger bench judgment of this Court reported in K. SWARNA KUMARI VS. GOVERNMENT OF ANDHRA PRADESH AND OTHERS[1], wherein at paragraph 7 of the judgment, it is observed as under: “7. It is further contended that as per sub-rule (4) of Rule 20 of 1991 Rules, the disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviours and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.” The learned counsel also relied on the judgment of a Division Bench of this Court reported in CH.ANJAIAH VS. GOVERNMENT OF ANDHRA PRADESH AND OTEHRS[2], wherein this Court observed as under: “Therefore, taking into consideration the totality of the facts and circumstances, and especially, where the charge No. 1 about the failure on the part of the petitioner as to basic obligation in discharge of public duties, as a reasonable public officer under the State, to brig to the notice of higher ups in regard to any such irregularities, there has been proper punishment of withholding the increments, which is perfectly justified and it cannot be said that the same is not commensurate or has no nexus to the gravity of charge as such.” Heard the learned counsel appearing for the petitioners and also perused the material made available on record. For ready reference Rule 20 (5) of CCA Rules, is extracted hereunder: (a) “On the date fixed for appearance, the Government Servant shall submit the written statement of his defence. The Disciplinary Authority shall ask the government servant whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Disciplinary Authority shall record the plea, sign the record and obtain the signature of the Government Servant thereon. The disciplinary authority shall records findings of guilty in respect of those articles of charge to which the Government servant pleads guilty. Where the Government servant admits all the articles of charge, the disciplinary authority shall record its findings on each articles of charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 21. (b) Where the Government Servant appears before the Disciplinary Authority and pleads not guilty to the charges or refuses or omits to plea, the Disciplinary Authority shall record the plea and obtain signature of the Government Servant thereon and may decide to hold the inquiry itself or if it considers necessary to do so appoint an Inquiring Authority for holding the inquiry into the charges and also appoint a Government Servant or a retired Government Servant or a legal practioner as Presenting Officer to present the case in support of the articles of charge and adjourn the case to a date not exceeding five days. (c) On the day so fixed, the disciplinary authority shall serve copies of the orders appointing the inquiring authority and the Presenting Officer on the Government servant and inform him that he may take the assistance of any other Government servant to present the case on his behalf, but he may not engage a retired Government servant or a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is one such, or, the disciplinary authority, having regard to the circumstances of the case, so permits. Provided that no Government servant dealing in his official capacity with the case of inquiry relating to the person charged or any officer to whom an appeal may be preferred shall be permitted by the inquiring authority to appear, on behalf of the person charged before the inquiring authority Provided further that the Government servant may take the assistance of any other Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case and for reasons to be recorded in writing so permits. (d) The Disciplinary Authority shall inform the Government Servant to submit within five days a list of documents, which he requires to be discovered or produced by Government for the purpose of his defence indicating the relevance of the documents so required. (e) The Disciplinary Authority may for reasons to be recorded in writing refuse to requisition such of the documents as are, in its opinion, not relevant to the case. (f) The Disciplinary Authority shall on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition. (g) On receipt of the requisition referred to in sub-rule 5(f), every authority having the custody or possession of the requisitioned documents shall produce the same before the Disciplinary Authority. Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by its in writing that the production of all or any such documents would be against the public interest or security of the State, shall submit the fact to the Head of Department or to the Secretary of the Department concerned for a decision in the matter. Such decision shall be informed to the Disciplinary Authority and where the decision is to withhold production of all or any of such documents, the Disciplinary Authority shall on being so informed communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents and where the decision is against withholding the production of all or any of such documents, every Authority having the custody or the possession or the possession of such requisition documents shall produce the same before the disciplinary authority.” We have also perused the written statements of the applicant-respondent wherein he has not confessed that he has utilized the amount for his own benefit and he stated that the amount drawn from the Bank is given to the Land Acquisition Officer. Therefore, the infirmity in framing the charges clearly goes contrary to the mandatory provisions of APCS (CC& A) Rules, as while framing charges and issuing the same to the applicant- respondent, no list of witnesses were examined and no list of documents were marked are supplied to the applicant as required under APCS (C&A) Rules and basing on such charge memo, the enquiry was conducted by the enquiry officer without examining any witnesses and without marking any documents only by taking the statement of the applicant-respondent, and charges were held proved by him. Therefore, the Tribunal rightly held that the whole proceedings are in utter violation of the mandatory provisions of the APCS (C&A) Rules and rightly set aside the same. Therefore, we see no reasons to interfere with the matter and the Writ Petition is liable to be dismissed. The decisions relied on by the petitioners reported in K. SWARNA KUMARI VS. GOVERNMENT OF ANDHRA PRADESH AND OTHERS (supra –1) and CH.ANJAIAH VS. GOVERNMENT OF ANDHRA PRADESH AND OTEHRS (supra-2) are not relevant to the facts and circumstances of the present case since the enquiry was conducted as per rules and the petitioners in the above referred decisions, were informed about the particulars of charges and evidence was also recorded. Accordingly, the Writ Petition is dismissed as devoid of merits. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J ___________________________ N.R.L. NAGESWARA RAO, J DATE: 21.02.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] 2006 (2) ALD 585 (LB) [2] 2010 (4) ALD 748 (DB)