1. This writ petition is filed seeking to declare the action of the respondents in continuing the disciplinary proceedings against the petitioner pursuant to the solitary charge framed against him vide G.O.Rt.No.303, Health, Medical and Family Welfare (VC.III.I) Department dated 19.03.2005 depriving the pensionary benefits to the petitioner on the said ground though the petitioner retired from service on 31.01.2010 by ordering second enquiry contrary to the provisions of Rule 21 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, ‘the Rules’), as illegal and arbitrary and consequently, direct the respondents to sanction and pay full retirement benefits to the applicant together with an interest of 18% per annum.
2. The facts of the case, in brief, are that the petitioner was appointed as Civil Assistant Surgeon and joined in Service on 22.11.1982 at Government Dispensary, Aliabad, Hyderabad. While working as Assistant Professor, he was promoted as Associate Professor and thereafter, he was promoted as Professor in September, 2003. Subsequently, he was reverted as Associate Professor in June, 2005. It is stated that the petitioner proceeded on approved medical leave from 31.10.2003 and thereafter, extended the leave from time to time upto 15.12.2005. He applied for Voluntary Retirement from service on 12.12.2005 i.e., after completion of 21 years of service.
3. Prior to making of the application for voluntary retirement, disciplinary proceedings were initiated against the petitioner vide G.O.Rt.No.303, Health, Medical and Family Welfare (VC.III.I) Department, dated 19.03.2005 alleging that the petitioner unauthorisedly absent to duty w.e.f. 26.12.2003 and thereby caused inconvenience to the administration. Thereafter, an enquiry officer was appointed to conduct an enquiry into the said allegation. Accordingly, the Enquiry Officer has conducted an enquiry and submitted a report stating that the petitioner had applied for Medical Leave along with Medical Certificates from 01.11.2003 to 29.06.2005 and later applied for voluntary retirement on 30.06.2005 on medical grounds.
4. The first respondent instead of accepting or rejecting the finding of the Enquiry Officer, ordered for re-enquiry vide Memo dated 02.03.2016. The second enquiry officer conducted re-enquiry and submitted a report holding that the single charge of unauthorized absence was proved against the petitioner and treating the period of leave applied by the petitioner from 01.11.2013 to 31.01.2010 as unauthorized absence to duty. Basing on the said report, the respondents are proceeding to take further action against the petitioner.
5. Originally, the petitioner has filed O.A.No.3141 of 2016 before the Andhra Pradesh Administrative Tribunal in the year 2016. Consequently, subsequent to the abolition of the Tribunal, the O.A. was transferred to this Court and re-numbered as W.P (TR) No.6242 of 2017. Despite granting sufficient time, the respondents have not chosen to file counter affidavit.
6. Heard Sri D. Linga Rao, the learned counsel for the petitioner and the learned Government Pleader for Services-II. Perused the record.
7. The learned counsel for the petitioner contended that though more than 11 years have elapsed from the date of issuance of the charge memo, the proceedings are not yet completed; that the second enquiry officer has conducted the re-enquiry on a single day i.e., on 10.03.2016 and submitted the report holding that the charge was proved, without taking into consideration the fact that the request of the petitioner for voluntary retirement is pending. It is further contended that the petitioner had attained the age of superannuation on 31.01.2010 and therefore, he is deemed to have retired from service. He further contended that the respondents have not even released the provisional pension and other retirement benefits under the guise of pendency of disciplinary proceedings.
8. In support of his contentions, the learned counsel for the petitioner relied on the judgments of the Apex Court in the State of A.P v. M. Radhakrishnan (1998) 4 SCC 154, Prem Nath Bali v. Registrar, High Court of Delhi Civil Appeal No.958 of 2010 and State of Jharkhand v. Jitendra Kumar Srivastava Civil Appeal No.6770 of 2013; this Court in P. Ramachander Shetty v. Engineer-in-Chief, Panchayat Raj Department, Government of Andhra Pradesh 2001 (3) ALD 558 (DB) and the High Court of Andhra Pradesh in G.Dwarakanath v. The State of Andhra Pradesh W.P.No.870 of 2021.
9. A perusal of the record discloses that initially an Enquiry Officer was appointed to conduct enquiry into the allegations made against the petitioner. The said Enquiry Officer, after conducting enquiry, submitted a report that the charge framed against the petitioner was not proved, as the petitioner applied for medical leave along with medical certificates from 01.11.2003 to 29.06.2005 and later applied for voluntary retirement on 30.06.2005 on medical grounds. However, the Government appointed second Enquiry Officer to conduct re-enquiry, which is contrary to Rule 21 of the Rules. As per Rule 21, in the event disciplinary authority chooses to disagree with the findings of the Enquiry Officer, he has to record reasons for such tentative disagreement and communicate the same to the Charged Officer and take further action. In view of the same, the appointment of the second enquiry officer is illegal and being in violation of the Rules. Therefore, the Report of the second enquiry officer cannot be looked into and no action can be initiated against the petitioner on such report.
10. In this context, it is apt to refer to Rule 21 (2) of the Rules, which reads as follows:
“(2)The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favorable or not to the Government servant.”
11. Furthermore, there is abnormal delay of more than 11 years in concluding the disciplinary proceedings, which not only causes mental agony, harassment and monetary loss to the petitioner but also creates doubt over the disciplinary proceedings.
12. In Prem Nath Bali’s case (Civil Appeal No.958 of 2010 supra), the Supreme Court held as under:
“…… we are of the considered opinion that every employer (whether State of private) must make sincere endeavour to conclude the departmental enquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time-frame then efforts should be made to conclude within the reasonably extended period depending upon the cause and the nature of inquiry, but not more than a year".
The other judgments, which are relied upon by the learned counsel for the petitioner, are not applicable to the facts of the case.
13. Insofar as the delay in concluding the disciplinary proceedings is concerned, in State of A.P., vs. N.Radhakishan 1998 SCC 154, the Hon’ble Apex Court held as under:
“19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularising the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any enquiry officer even assuming that action was validly being initiated under the 1991 Rules. There is no explanation whatsoever for delay in concluding the enquiry proceedings all these years. The case depended on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody's case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. The Tribunal rightly did not quash these two latter memos.”
14. In P.V. Mahadevan v. M.D. Tamil Nadu Housing Board Corporation, the Hon’ble Apex Court held as under:
“11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs.”
15. In M.V.Bijlani v. Union of India 2006 (5) SCC 88, the Hon’ble Apex Court held as under :
“16. So far as the second charge is concerned, it has not been shown as to what were the duties of the appellant in terms of the prescribed rules or otherwise. Furthermore, it has not been shown either by the disciplinary authority or the Appellate Authority as to how and in what manner the maintenance of ACE-8 Register by way of sheets which were found attached to the estimate file were not appropriate so as to arrive at the culpability or otherwise of the appellant. The Appellate Authority in its order stated that the appellant was not required to prepare ACE-8 Register twice. The appellant might have prepared another set of register presumably keeping in view the fact that he was asked to account for the same on the basis of the materials placed on records. The Tribunal as also the High Court failed to take into consideration that the disciplinary proceedings were initiated after six years and they continued for a period of seven years and, thus, initiation of the disciplinary proceedings as also continuance thereof after such a long time evidently prejudiced the delinquent officer.”
16. In State of M.P. v. Bani Singh 1990 Supp SCC 738, the Hon’ble Apex Court held as under:
“4. The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.”
17. In D.Srinivas v. Govt. of A.P., Transport, Roads and Buildings (Vig.I) Dept., and others 2013 (4) ALT 1 (DB), the Division Bench of this Court held as under:
“18. Coming to the case on hand, it is to be noticed that the charge relates to the year 1998 and no steps were taken immediately on the subject-matter of the charge. Only pursuant to the complaint lodged against the Executive Engineer (Electrical) alone before the Upa-Lokayuktha, A.P., and basing on the ex parte preliminary enquiry report, proceedings were initiated which were later dropped. Thereafter, regular departmental enquiry is conducted and on one ground or the other the enquiry officers were changed, which is admitted in the counter- affidavit, stating that delay is only on account of administrative reasons. Having regard to the nature of charge and the plea of delay, we are of the considered view that there is abnormal and unexplained delay on the part of the disciplinary authority in completing the enquiry and imposing punishment. Such an action is contrary to the judgments referred above apart from the executive instructions issued by the Government itself. Even for the said reason, the impugned order is liable to be set aside. For the foregoing reasons, the writ petition is allowed and the order dated 02.12.2011 passed in O.A. No. 8278 of 2011 and, further, order dated 04.12.2012 passed in Rev. M.A. No. 3802 of 2011, by the A.P. Administrative Tribunal, Hyderabad, is set aside. Consequently, the final order imposing punishment on the petitioner vide G.O. Rt. No. 734, Transport, Roads & Buildings (Vig.I) Department dated 28.07.2011 is quashed and it is held that the petitioner is entitled to all the consequential benefits. No order as to costs.”
18. In State of Telangana and others vs. L.Galanna and another 2016 (4) ALD 320 (DB), the Division Bench of the erstwhile High Court of Andhra Pradesh, held as under:
“4. On a careful consideration of the respective submissions of the learned counsel for the parties, we are of the opinion that in the absence of any explanation whatsoever offered by the petitioners for their failure to conclude disciplinary proceedings for a decade, the ratio laid down by the Supreme Court in the abovementioned cases was rightly applied by the Tribunal in quashing the disciplinary proceedings. ”
19. From the judgments referred to above, it is clear that continuation of disciplinary proceedings for long time without any justification or reason would result in grave injustice, mental agony and distress to the employee and in a given case, the disciplinary proceedings can be quashed depending upon the facts and circumstances of the case.
20. Further, as per G.O.Ms.No.679, G.A. (Ser-C) Department, dated 01.11.2008, the Government directed that the disciplinary cases initiated against the Government employees shall be completed as expeditiously as possible i.e., a normal time of three months and six months is allowed in simple and complicated cases, respectively. In case of abnormal delay in conducting the disciplinary proceedings, action shall be initiated against concerned inquiring authority.
21. Considering the facts and circumstances of the case and the aforesaid judgments of the Hon’ble Supreme Court, this Court is of the considered view that re-enquiry report dated 14.03.2016 submitted by the second Enquiry Officer as well as the disciplinary proceedings initiated against the petitioner are liable to be set aside.
22. Accordingly, the writ petition is allowed setting aside the re-enquiry report dated 14.03.2016 submitted by the second Enquiry Officer as well as the disciplinary proceedings initiated against the petitioner. The respondents are directed to pay full retirement benefits to the petitioner, as expeditiously as possible, preferably, within a period of eight weeks from the date of receipt of a copy of this order.
Pending Miscellaneous Applications, if any, shall stand closed. No costs.
