Z.Somaiah v. The N.P.D.C.Of A.P Ltd And 2 Others

HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI WRIT PETITION No.22539 OF 2009 ORDER:

1.

This writ petition is filed seeking to issue a writ of Mandamus declaring the impugned memo dated 30.9.2009 issued by the 2nd respondent, as illegal and arbitrary; to set aside the same and consequently, to direct the respondents to reinstate the petitioner into service duly granting all other consequential benefits.

2.

Heard Sri K. Vasudeva Reddy, learned Counsel for the petitioner and Sri Zakir Ali Danish, learned Standing Counsel for the respondents.

3.

It is the case of the petitioner that his father used to work in the APTRANSCO and he died while in service on 7.11.2002. The petitioner applied for compassionate appointment for the post of attender. The petitioner was appointed as attender in the year 2003. He was examined by the Medical Officer and his age was assessed as 31 years at the time of his appointment. The petitioner's probation was also declared. While so, on 16.5.2007, a show cause notice was issued to the petitioner on the ground that though he studied SSC and he belongs to SC (Mala) community, he did not disclose the same at the time of his appointment. The petitioner submitted his

explanation. On 8.5.2008, a memo was issued by the enquiry officer framing the charge alleging that he produced fake date of birth and caste certificates and got employment on compassionate grounds. After conducting enquiry, the petitioner was dismissed from service vide proceedings dated 30.9.2009. Challenging the same, the present writ petition is filed.

4.

The learned Counsel for the petitioner contended that as the appointment of the petitioner being compassionate appointment, he did not claim any reservation and therefore, it cannot be alleged that the petitioner obtained employment by producing fake caste certificate. He further contended that the finding of the enquiry officer that the petitioner filed false affidavit suppressing his qualification is perverse as the charge alleged against the petitioner was that production of false date of birth and caste certificates, and that when the submission of false educational certificate was not part of charge sheet, holding him as guilty for filing an affidavit with regard to qualification amounts to perverse finding. He further contended that the post of attender does not require any educational qualification except reading and writing and that the impugned proceedings are not sustainable.

5.

Further, the learned Counsel for the petitioner contended that the enquiry officer was appointed vide proceedings dated

16.2.2008 and thereafter, the enquiry officer issued a charge sheet on 8.5.2008. He further contended that the charge has to be issued by the disciplinary authority, and after calling for explanation from the petitioner, if the explanation is not convincing then only the disciplinary authority can appoint enquiry officer, but in the instant case, the enquiry officer was appointed even before issuance of charge sheet and the enquiry officer framed the charges contrary to the regulations. He further contended that this Court had an occasion to decide the very same issue in the judgment rendered in Ch. Appala Reddy Vs. Eastern Power Distribution Company of A.P. Limited, Visakhapatnam and others1, wherein appointment of enquiry officer before issuance of charge memo was found faulted.

He further contended that in the instant case, the respondents have violated the basic requirements of initiation of proceedings against the petitioner and that the enquiry officer relied upon the statements recorded even at the time of preliminary enquiry and that no opportunity was given to the petitioner to defend his case. He further contended that the evidence collected during preliminary enquiry cannot be relied upon in the regular departmental enquiry, and that the Head Master, Ravi Balanikethan High School, Kothagudem was not examined, but the enquiry officer relied upon the letter said to 1 2005(3) ALT 632(D.B.)

have been written by the said Headmaster and held that the charge has been proved.

6.

Further, the learned Counsel for the petitioner contended that the petitioner had not produced any certificate at the time of his initial appointment as he was appointed on compassionate grounds and he joined as attender and that there was no minimum qualification required for the post of attender and therefore, the question of holding that the petitioner is guilt of producing fake certificate would not arise and the order of his dismissal from service is liable to be set aside.

7.

The learned Standing Counsel for the respondents contended that the petitioner was appointed as attender consequent upon the death of his father. He further contended that the allegation of concealing original certificates was proved in the enquiry. He further contended that though no educational qualification for the post of attender was fixed, the petitioner cannot claim appointment by producing date of birth certificate issued by a medical officer, and as per the school records, if the date of birth is taken into consideration, he is not eligible for securing appointment on compassionate grounds as he crossed 34 years. He further contended that the petitioner suppressed facts relating to age and educational qualification and secured employment by cheating and that the respondents

have not committed any illegality or irregularity in issuing the impugned proceedings and that there are no merits in this writ petition.

8.

This Court having considered the rival submissions made by the parties is of the view that the disciplinary authority appointed the enquiry officer before issuance of charge sheet and that the enquiry officer issued the charge sheet. Further, the crucial witness upon whose letter the enquiry officer has relied upon viz., Head Master, Ravi Balanikethan High School, Kothagudem, was not examined in the enquiry. Further, the charge levelled against the petitioner that he produced fake certificate for the purpose of date of birth and the caste certificate, is totally incorrect as the petitioner was appointed on compassionate grounds where there is no requirement of caste certificate and educational qualification.

Apart from that, the disciplinary authority appointed the enquiry officer even before issuance of charge sheet, and the charge sheet was issued by the enquiry officer. Since the said procedure is not in accordance with law more importantly the law laid down by this Hon'ble Court in Ch. Appala Reddy Vs. Eastern Power Distribution Company of A.P. Limited (cited supra), this Court is of the view that the impugned dismissal order dated 30.9.2009 is liable to set aside and accordingly it is set aside with all consequential benefits.

9.

Accordingly, the Writ Petition is allowed setting aside the impugned proceedings dated 30.9.2009, with all consequential benefits. No costs. Consequently, miscellaneous petitions pending, if any, shall stand closed.

_________________________________ JUSTICE ABHINAND KUMAR SHAVILI Dated: 31st December, 2018.

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HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI WRIT PETITION No.22539 OF 2009 31/12/2018 Nn.