THE HON’BLE SRI JUSTICE M.

SATYANARAYANA MURTHY

WRIT PETITION No.1471 OF 2021

ORDER:-

This writ petition is filed under Article 226 of the

Constitution of India seeking the following relief:

“……pleased to issue a writ, order or direction particularly

one in the nature of Writ of Mandamus setting aside the Proceedings
E.Office No.741022/2018 Pts.3 punishment order dated : 08.02.2019
and rejection on appeal vide e-Proceedings
No.855153/CPR&RD/G1/2019 dated 27.05.2020 as without
application of mind discriminatory apart from violation of Articles
14, 16 and 21 of the Constitution of India, and pass…..”

2. Heard Sri C.Srinivasa Baba, learned counsel for the

petitioner, and the learned Government Pleader for Services-II

appearing for the respondents.

3. The petitioner was appointed on 12.5.1993 as Junior

Assistant. For the past 27 years, he is discharging his duties as

Junior Assistant. He is fully eligible and qualified to be considered

for promotion to the post of Senior Assistant both as per his record

and as per his seniority.

To his ill-luck, the Divisional Panchayat Officer, Vijayawada,

under whom he was working, has developed deep rooted prejudice

and bias against him and when he was due for promotion as

Senior Assistant, with a view to see that the petitioner should not

get promotion, he has engineered a complaint against this

petitioner on 8.1.2018 making frivolous allegations. Even without

going into the explanation, respondent No.2 straightaway

appointed an Inquiry Officer vide Memo Roc.No.09/2018 Pts.3 on

5.11.2018 as is evident from the order. It is also pertinent to

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submit that the wife of the complainant i.e., Divisional Panchayat

Officer (A.O.) was appointed as Presenting Officer by proceedings,

dated 5.11.2018.

As there is no material and substance against the petitioner,

the Inquiry Officer has submitted his report vide Roc.No.01/2018

A on 14.12.2018 holding all the four counts levelled against him

are not proved except the 5th count i.e., that he attended late to the

office, as per the biometric attendance record. On this ground, the

Inquiry Officer submitted a report that 5th count of the charge is

proved against the petitioner. Respondent No.2 imposed minor

punishment of censure against the petitioner vide proceedings

E.Office No.741022/2018 Pts.3 on 8.2.2019.

The petitioner approached the A.P. Administrative Tribunal

by filing O.A.No.39 of 2019 complaining that the charges are

framed against him only to deprive him the chance of promotion

after 27 years of service as Junior Assistant. The Tribunal was

pleased to dismiss the O.A. on 20.1.2019.

The petitioner approached this Court by filing W.P.No.1400

of 2019 seeking judicial review of the orders of the Tribunal and

the same was disposed of on 26.2.2019 directing respondent No.1

herein to consider and dispose of the appeal filed against the

orders of punishment.

Against the orders of punishment, dated 8.2.2019, the

petitioner preferred an appeal on 11.2.2019 before the appellate

authority and the same was directed to be disposed of within four

weeks from 26.2.2019. The appellate authority passed an order

rejecting the claim of the petitioner vide proceedings

No.855153/CPR&RD/G1/2019 on 27.5.2020 on the ground that

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the censure period was over. Therefore, the non-application of

mind by the appellate authority is illegal and arbitrary.

It is also further contended that this petitioner was

discriminated from the similarly placed persons of the same

department and a copy of the list of employees, who were absent

for more than the period of absence of this petitioner, was also

furnished but no action was taken. Therefore, initiation of

disciplinary proceedings against this petitioner is discriminatory

and thereby, the orders impugned in the writ petition are liable to

be set aside and requested to issue a direction, as stated above.

4. During hearing, Sri C.Srinivasa Baba, learned counsel for

the petitioner, submitted about discriminating this petitioner

among the equals, as there are several Junior Assistants, who were

absent for more than 20 days, 15 days etc., but whereas the

petitioner was absent only for two days. However, no action was

initiated against the similarly placed persons for their absence.

This amounts to discriminatory treatment of this petitioner and on

this ground also, the petitioner sought to set aside the impugned

proceedings. It is further contended that the appellate authority

and the disciplinary authority did not apply its minds while

passing the final order and the confirmation of the final order by

the appellate authority and the reason assigned by the appellate

authority for dismissal of the appeal is illegal and without

application of mind and placed reliance on a judgment, dated

20.2.2019, in SERVICE Single No.18642 of 2018 of Allahabad High

Court in Rakesh Kumar Pandey vs. State of U.P. Through,

Principal Secretary, Department of Revenue Lko. and others in

support of his contentions while highlighting the scope of

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interference of this Court under Article 226 of the Constitution of

India in service matters wherein it is held at para No.6 as under:

“This Court under its power conferred by Article 226 of

Constitution of India, can interfere in the matter of
disciplinary proceedings if the disciplinary/enquiry
proceedings were conducted in violation of manner prescribed
and against Principle of Natural Justice and if the order of
concerned authority is non speaking and unreasoned. This
Court can interfere in the matter of disciplinary proceedings if
the decision making process is in violation of Rules or against
Principle of Natural Justice. The judicial review in the matter
of departmental proceedings is permissible with respect to
decision making process and not against the decision itself
unless it is shown that the decision is without any evidence or
suffers from malafide or malice or harsh or without
jurisdiction.”

5. The learned Government Pleader for Services-II appearing

for the respondents would contend that a review is permissible

against such order and the same is pending before the review

authority and during pendency of the review, the petitioner cannot

prosecute parallel proceedings before this Court and the review

authority and requested to dismiss the writ petition on this ground

alone.

6. Undoubtedly, an enquiry was ordered and the enquiry officer

found the petitioner guilty. Final order was passed by the

appointing authority imposing penalty of censure i.e., minor

penalty which will be in force for a period of one year and it is a

disqualification for being considered for next higher post during

the currency of punishment. To the misfortune of this petitioner,

the appeal was disposed of by the appellate authority with the

following observation:

“After careful examination of the connected record, the

Appellate Authority i.e., the Commissioner, PR & RD after due
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consideration rejected the appeal. Since the period of censure

was over by 07-02-2020 and there is no reason to interfere with
the orders of DPO.”

This order is innocuous. When the petitioner challenged the order

of penalty on various grounds, the appellate authority ought to

have considered the grounds urged in the appeal and ought to

have passed a reasoned order but passed a cryptic order without

applying its mind and such order cannot be sustained.

7. Law is well settled regarding interference of this Court under

Article 226 of the Constitution of India in a proceedings imposing

penalty by the disciplinary authority. In Indian Oil Corporation

Ltd., vs. Ashok Kumar Arora1, the Apex Court held as follows:

“At the outset, it needs to be mentioned that the High Court in

such cases of departmental enquiries and the findings
recorded therein does not exercise the powers of appellate
court/authority. The jurisdiction of the High Court in such
cases is very limited for instance where it is found that the
domestic enquiry is vitiated because of non-observance of
principles of natural justice, denial of reasonable opportunity;
findings are based on no evidence, and/or the punishment is
totally disproportionate to the proved misconduct of an
employee. There is a catena of judgments of this Court which
had settled the law on this topic and it is not necessary to
refer to all these decisions. Suffice it to refer to a few decisions
of this Court on this topic viz. State of A.P. v. S. Sree Rama
Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723 : (1964) 2 LLJ 150],
State of A.P. v. Chitra Venkata Rao [(1975) 2 SCC 557 : 1975
SCC (L&S) 349 : (1976) 1 SCR 521] , Corpn. of the City of
Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC (L&S) 455
: (1981) 3 SCR 22] and Nelson Motis v. Union of India [(1992) 4
SCC 711 : 1993 SCC (L&S) 13 : (1993) 23 ATC 382 : AIR 1992
SC 1981]”.

But at the same time, in another judgment, the Apex Court held

that the authority has to apply its mind to the facts. It is evident

from the judgment of the Apex Court in Allahabad Bank v.

1
(1997) 3 SCC 72
 6

Krishna Narayan Tewari2 that application of mind is pre-requisite

while passing an order in appeal or by the disciplinary authority

but it is quite clear from the order passed by the appellate

authority extracted above that the appellate authority did not

apply its mind and rejected the appeal only on the ground that the

censure period was expired on 7.2.2020 thereby, the order of the

appellate authority is liable to be set aside in view of the various

judgments referred above. Accordingly, the order, dated

27.5.2020, of the appellate authority is hereby set aside.

8. Coming to the order of the disciplinary authority, it is the

contention of the petitioner that the disciplinary authority also did

not apply its mind. Application of mind should be to the facts of

the case and evidence available on record and decide in accordance

with law. Here, it appears that the disciplinary authority made an

attempt and appreciated the material on record and passed an

order but this Court need not examine in detail about application

of mind. However, the appointing authority/disciplinary authority

passed an order but without any sufficient reasons, but in the

judgment in Rakesh Kumar Pandey’s case (referred supra), it is

held at para No.22 as follows:

“22- The Division Bench of this Court after considering the

catena of judgments on the issue of holding of departmental/
disciplinary proceedings in the judgment dated 28.11.2016
passed in Writ Petition No.-34093 (S/B) of 2018 ( State of U.P.
and Others Vs. Deepak Kumar and Another) has observed as
under:-

"It is settled by the catena of judgments that it is the duty of

Enquiry Officer to hold ''Regular Enquiry'. Regular enquiry
means that after reply to the charge-sheet the Enquiry Officer

2
(2017)2 SCC 308
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must record oral evidence with an opportunity to the

delinquent employee to cross-examine the witnesses and
thereafter opportunity should be given to the delinquent
employee to adduce his evidence in defence. The opportunity of
personal hearing should also be given/awarded to the
delinquent employee. Even if the charged employee does not
participate/co-operate in the enquiry, it shall be incumbent
upon the Enquiry Officer to proceed ex-parte by recording oral
evidence. For regular enquiry, it is incumbent upon the Enquiry
Officer to fix date, time and place for examination and cross-
examination of witnesses for the purposes of proving of
charges and documents, relied upon and opportunity to
delinquent employee should also be given to produce his
witness by fixing date, time and place. After completion of
enquiry the Enquiry Officer is required to submit its report,
stating therein all the relevant facts, evidence and statement
of findings on each charge and reasons thereof, and thereafter,
prior to imposing any punishment, the copy of the report
should be provided to charged officer for the purposes of
submission of his reply on the same. The punishment order
should be reasoned and speaking and must be passed after
considering entire material on record. (vide: Jagdish Prasad Vs.
State of U.P. 1990 (8) LCD 486; Avatar Singh Vs. State of U.P.
1998 (16) LCD 199; Town Area Committee, Jalalabad Vs.
Jagdish Prasad 1979 Vol. I SCC 60; Managing Director, U.P.
Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol.
3 SCC 459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;
Chandrama Tewari Vs. Union of India and others AIR 1998 SC
117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC
1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories
2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank
and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P.
and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and
others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and
others 2014 (4) ALJ 440. Rules 7, 8 and 9 of Rules 1999 are
also relevant".

In view of the law declared by the Full Bench of the Apex Court,

failure to record sufficient reasons is not a ground to set aside the

final order passed by the disciplinary/appointing authority.

Therefore, for the principles laid down in the above judgment, I am

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not inclined to set aside the order passed by the disciplinary

authority/appointing authority, dated 8.2.2019.

9. As I find that the appellate authority passed an order

irregularly without applying the mind and without recording a

specific finding, the appellate authority shall examine the entire

record and find out whether the appointing/disciplinary authority

applied its mind to the facts of the case and appreciated the

material independently and pass appropriate orders un-influenced

by the findings recorded by the disciplinary/appointing authority.

Hence, it is a fit case to remand the matter to the appellate

authority to consider all the grounds urged by this petitioner for

non-application of mind while finding this petitioner guilty of

misconduct and while imposing penalty of censure, and pass

appropriate order in accordance with law.

10. One of the grounds raised by the learned Government

Pleader for Services-II appearing for the respondents is that a

review is pending before the competent authority and the petitioner

cannot prosecute two parallel proceedings. No material is placed

on record about pendency of review. Even if review is pending,

when the appellate authority passed a cryptic order without

applying its mind, the petitioner can challenge such an order

before this Court and this Court, while exercising power under

Article 226 of the Constitution of India, can pass appropriate

orders and pendency of review is not a bar.

11. Hence, in view of the foregoing reasons, I find that the order

of the appellate authority is illegal and arbitrary and without

application of mind. But I am not inclined to record any finding on

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the legality of the order passed by the disciplinary authority, as the

order passed by the appellate authority is set aside and the matter

is remanded to the appellate authority.

12. In the result, the Writ Petition is allowed in part directing the

appellate authority to pass appropriate orders within four (4)

weeks from the date of receipt of a copy of this order. There shall

be no order as to costs.

Miscellaneous petitions pending, if any, in this Writ Petition

shall stand closed.

_________________________________________
JUSTICE M.SATYANARAYANA MURTHY
Date : 16.2.2021

Note:-
Furnish C.C. in one week.
B/O
AMD
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91

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.1471 OF 2021

Date : 16.02.2021

AMD