IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 682 OF 2020 Between: S.D. Shyam Sundar, S/o. Sanyasi Rao, Hindu, aged about 40 years. Presently working as Mandal Parishad Development Officer Visakhapatnam District. Chodavaram ...Petitioner AND 1. The Project Director and District Water, Management Authority, Office of Collectorate, Viziayanagaram, 2. The Director, Panchayat Raj and Rural Development, Main Road, Tadepalli, Guntur District. District Collector and Program M.G.S.R.E.G.(Mahatma Gandhi Guarantee) Scheme, Office of Collectorate, Viziayanagaram. 4. The Chief Executive Officer, Zilla Praja Parishad, Viziayanagaram. 5. The State of Andhra Pradesh, represented by its Principal Secretary, Department of Panchayat Raj and Rural Development, Secretariat Buildings, Velagapudi, Guntur District. 6. The Chief Executive Officer, Zilla, Praja Parishad, Visakhapatnam. 3. The Co-Ordenator, National Rural Employeement 7. M/s. Dilip Infra, a Proprietary concern, represented by its Proprietor Mr. K. Venkataiah, H.NO.30-2-453, Rama Colony, Salur, Vizianagaram District. ...Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to a) to issue Writ of Mandamus or any other Writ, order/orders of like nature declaring the action on the part of the 3rd Respondent in issuing Proceedings in R.C.No.2490/2018/HRMS, dated 14.09.2018, directing the 4th Respondent to recover a sum of Rs.11,02,556/- (Eleven Lakh Two Thousand Five Hundred and Fifty Six Only) is arbitrary, illegal and violative of principals of natural justice and violative of Article 14 and 16 of Constitution of India and quash the said proceedings, and consequently direct the Respondents Nos.1 to 6 (particularly Respondent No.6), not to recover the said amount from the salary of the Petitioner, b) declaring the action on the part of the 4th Respondent in issuing Proceedings in R.C.No.566/2018/P9, dated16.02.2019, requesting the 6th Respondent to take necessary steps for recovery of an amount of Rs.11,02,556/- (Eleven Lakh Two Thousand Five Hundred and Fifty Six Only) from the salary of the Petitioner and remit the same to M.G.N.R.E.G.S. funds by way of. Bank Draft in favour of Commissioner, Rural Development, A.P., Vijayawada is arbitrary, illegal and violative of principals of natural justice and violative of Article 14 and 16 of Constitution of India and quash the said proceedings. c) and consequently direct the Respondents to appoint a independent committee to probe and enquire into the misutilization of M.G.N.R.E.G.S. funds (Mahatma Gandhi National Rural Employeement Guarantee Scheme) after issuing/giving Notice and opportunity to the 7th Respondent and submit Report to the State Government, and consequently direct the Respondents to take necessary action against the employees, who misutilized funds of the said Scheme, lA NO: 1 OF 2020 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents No.1 to 6 (particularly Respondent No.6) not to recover the amount of Rs. 11,02.556/- (Eleven Lakh Two Thousand Five Hundred and Fifty Six Only) from the salary of the Petitioner, pending disposal of the above writ petition lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to receive the additional documents i.e., copy of Appointment Order dt.05.10.2016 of the petitioner and G.O.Ms.No.347, dt.21-11-2001, copies of work details and Annexure-I (Disciplinary rules for FTEs of SRDS 2012), being filed herewith in WP. No. 682 of 2020 in the interests of justice Counsel for the Petitioner: SRI SRINIVAS AMBATI Counsel for the Respondents No.1, 2, 3 and 5: GP FOR PANCHAYAT RAJ RURAL DEV (AP) Counsel for the Respondents No.4 and 6: SRI G SRINIVASULA REDDY Counsel for the Respondent: SRI RAYAPROLU SRIKANTH The Court made the following: Order APHC010005332020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3310] THURSDAY ,THE THIRTIETH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 682/2020 Between: ...PETITIONER S.d. Shyam Sundar, AND ...RESPONDENT(S) The Project Director And District Water and Others Counsel for the Petitioner: 1. SRI NIVAS AMBATI Counsel for the Respondent(S): 1.GPFORPANCHAYATRAJ RURAL DEV (AP) 2.G SRINIVASULA REDDY (SC FOR ZPP MPP AND GP SERVICES) The Court made the following Order: . The Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief; “ (a) to issue Writ of Mandamus or any other Writ order/orders of iike nature deciaring the action on the part of the Respondent Proceedings issuing R.C.NO.2490/2018/HRMS, dated 14.09.2018, directing the 4 Respondent to recover a sum of Rs.11,02,556/- (Eieven Lakh Two Thousand Five Hundred and Fifty Six Only) is arbitrary, illegal and violative of principals of natural justice and violative of Article 14 and 16 of Constitution of India and quash the said proceedings. in in th 2 and consequently direct the Respondents Nos.1 to 6 particularly Respondent No.6 not to recover the said amount from the salary of the Petitioner (b)declaring the action on the part of the Respondent in issuing Proceedings in R.C.No.566/2018/P9, dated 16.02.2019 requesting the 6'" Respondent to take necessary steps for recovery of an amount of Rs.11,02,556/- (Eleven Lakh Two Thousand Five Hundred and Fifty Six Only) from the salary of the Petitioner and remit the same to M.G.N.R.E.G.S funds by way of Bank Draft in favour of Commissioner, Rural Development, A.P., Vijayawada is arbitrary, illegal and violative of principals of natural Justice and violative of Article 14 and 16 of Constitution of India and quash the said proceedings, (c)and consequently direct the Respondents to appoint a independent committee to probe and enquire into the mis-utUiiation of M.G.N.R.E.G.S funds (Mahatma Gandhi National Rural Employeement Guarantee Scheme) after issuing/giving Notice and opportunity to the /'* Respondent and submit Report to the State Government and consequently direct the Respondents to take necessary action against the employees who misutilized funds of the said Scheme....’’ 2. Brief facts of the case are that the petitioner joined in the employment as M.P.D.O. in October, 2017 at Gurla Mandal of Vizianagaram district and within three months, posted to Gumma Lakshmi Puram of Vizianagaram district on deputation and subsequently in the month of May, 2018 and made in-charge of Jiyyammavalasa Mandal and Gumma Lakshmi Puram of Vizianagaram district. While so, the Parliament has passed “The « Mahatma Gandhi National Rural Employment Guarantee Act, 2005 under the provisions of said legislation, the State Government have undertaken Rural Development programs and the Schemes under the said legislation is being called as M.G.N.R.E.G.S. (Mahatma Gandhi National Rural Employment Guarantee Scheme) and under the said scheme various works have taken place in various districts in the State of Andhra Pradesh. The petitioner was deputed as Program Officer and M.P.D.O. to work under MGNREGS. The T**" respondent is a material supplier and bank account of and 3 respondent was approved for payments for the supplies made by it for the works for MGNREGS and amounts were credited to respondent bank account on various dates commencing from 04.04.2018 to 23.08.2018. While things stood thus, some political person given complaint to the 3'^'^ respondent, complaining about misutilization of funds and malpractices alleged to have been taken place in the works done under MGNREGS. Thereafter, the 3 respondent constituted a committee, consisting of Assistant Projector Director rd and others to enquire the same and the said committee submitted a report dated 07.09.2018 to the 3'"^ respondent. Basing on the above said report, the 3'^ respondent appointed the Revenue Divisional Officer as Enquiry Officer to find out about truthfulness of complaint given and enquiry report vide letter NO.2490/2018/HRMS, dated 14.09.2018. Further, on the same day, the 3 rd respondent issued proceedings vide R.C.No.2490/2018/HRMS, dated 14.09.2018 directing the 4*^ respondent to recover a sum of Rs.11,02,556/- i.e., @33.33% out of misutilized funds of Rs.33.08 lakhs. Further, the 3 respondent suspended the petitioner vide proceedings R.’C.No.566/2018,P9, dated 17.09.2018. The petitioner made a representation dated 12.11.2018 to the 3^*^ respondent stating that he was not given proper training and did not involved in embezzlement of funds and the other employees are responsible for the misutilizing the funds. The Revenue Divisional Officer, Parvathipuram, Vizianagaram district has submitted a report to the 3'^ respondent vide rd 4 Dis.No. 1432/2018-E, dated 26.11.2018 stating that the other employees, who are in charge of the works are responsible for embezzlement of funds, and the petitioner due to lack of proper training and the petitioner might be negligent to some extent and there is no involvement of embezzlement of funds by the rd respondent issued proceedings vide petitioner. Hence, the 3 R.C.No.566/2018,P9, dated 01.02.2019 re-instating the petitioner and posted th at Chodavaram of Visakhapatnam district. While things stood thus, the 4 respondent issued proceedings vide R.C.No.566/2018,P9, dated 16.05.2019 requesting the respondent to take steps for recovery of an amount of Rs. 11,02,556/- from the salary of the petitioner. Aggrieved by the same, the present writ petition has been filed. The 4 respondent filed counter affidavit denying the allegations made in the writ petition and stated that the 3'^'^ respondent received a complaint about misutilization of funds and malpractices alleged to have been 3. taken place in the works done under MGNREGS. The enquiry team visited Jiyyammavalasa Mandal from 03.09.2018 to 07.09.2018 and conducted field enquiry and the petitioner denied giving his explanation on misappropriation of funds. The other field enquiry functionaries like Engineering Consultant, APO Technical Assistant, Computer Operator and Accounts Assistants have given their explanation that no work was taken up and payments were made. It is further stated that the officer/employee who is said to be misappropriated 5 funds, basing on the preliminary enquiry report the district administration is competent to keep under suspension for getting more details on the said allegation. Accordingly, the petitioner was kept under suspension vide proceedings dated 17.09.2018 by the 3'"^ respondent. The action against the Engineering Consultant, APO, Technical Assistant, Computer Operator and Accounts Assistants were taken by the Project Director, DWMA, Vizianagaram and this issue relates to MGNREGS, AP, Viziangaram and the 4*^ respondent is not competent authority. This Court, vide order, dated 08.01.2025, has forfeited the right of 4. filing of counter by the respondent No.1 under Clause 12 of the Writ Proceeding Rules, 1977. Heard Mr.Srinivas Ambati, learned counsel for the petitioner and 5. learned Assistant Government Pleader for Panchayat Raj and Rural Development, for respondent Nos.1, 2, 3 and 5 as well as Mr.G.Srinivasula Reddy, learned Standing Counsel for respondent Nos.4 and 6. On hearing, learned counsel for the petitioner while reiterating the 6. contents urged in the writ petition, submits that, after supply of the material, the Engineer in charge/Engineering Consultant will look after the progress of the work carried on and the role of the petitioner is only to supervise in nature. The Engineering Consultant will fix and approve/finalize the amount to be i 6 given to material supplier and the computer operator will raise the payment invoice and then as a Program Officer, the petitioner will sign to release the amounts to the supplier. The material supplied by the supplier and the progress of the work will be noted in the Measurement Book which will be in the custody of Assistant Programming Officer and all the works will be monitored by Assistant Project Director and Project Director. He further submits that the petitioner made a representation dated 12.11.2018 to the 3'"' respondent stating that he is new recruitee and deputed to work in Jiyyammavalasa Mandal, which is an agency area and not given training to work for NREGS programs and due to lack of sufficient knowledge in execution of NREGS-AP works, he was forced to depend upon subordinate staff and the details regarding material supplied and work carried recorded in M-Book bearing Nos.8361, 8367, 39052, 38963, which were taken away by the Engineering Consultant, Technical Assistant and Assistant Program Officer and the above said books should be under custodianship of Computer Operators at Mandal level. He further submits that the proceedings of the 3'^ respondent dated 14.09.2018 and proceedings of the respondent dated 16.02.2019 are not valid as the petitioner was not given any proper opportunity to explain about the situation at the time of or before conducting enquiry. There is no evidence to show that the petitioner has involved in embezzlement of funds, which was done behind the back of the petitioner and on were 7 no action has been initiated against any of the employees, who were involved in the said embezzlement of funds. He further submits that the 3^^ respondent has issued Charge Memo vide No.871672/CPR & RD/A2/2019, dated 26.04.2019 for conducting departmental enquiry and the respondent is contemplating to recover the said amounts from the salary of the petitioner. He further submits that if the amounts were recovered from the salary of the petitioner, the petitioner will suffer a lot, for no fault on his part and the th amounts have to be recovered from the other employees and the 7 respondent. Therefore, learned counsel requests this Court to pass appropriate orders. Per Contra, learned Standing Counsel while reiterating the 7. contents made in the counter affidavit, submits that, every employee should aware the rules and regulations before taking up of charge of the post. Before making payments, the drawing officer must thoroughly inspect the work spot check measurements to be made in the Measurement Books, after satisfaction of the work, then only recommend for payment. In the present case, it was not done. Hence, the allegations made by the petitioner against the respondents are not admissible. Therefore, learned Standing Counsel prays to dismiss the writ petition. 8. Perused the record. 8 On a perusal of the report submitted by the Revenue Divisional 9. Officer, Parvathipuram vide D.Dis.No.1432/2018-E, dated 26.11.2018, the Revenue Divisional Officer has made the following observations: “In the result, I opine that there is misappropriation of huge amount which caused loss to the Government ex-chequer with the involveifient of the Engineering Consultant and Technical Assistants due to the negligence of the MPDO cum Programming Officer. However, the same might be occurred as the MPDO cum PO is being untrained and inexperienced due to short length of service, but as to the execution of works, technical opinion is necessary from the concerned officials to make further probe in to the above lapses.” As seen from the proceedings vide Rc.No.566/2018,P9, dated 16.02.2019, the respondent has made the following direction: 10. “Therefore, the Chief Executive Officer, Z.P.P., Visakhapatnam is hereby requested to take necessary steps for recovery of an amount of Rs. 11,02,556/- from the salary of Sri S.D. Shyam Sundar, former Mandal Parishad Development Officer, Jiyyammavalasa and Present Mandal Parishad Development Officer, Chodavaram of Visakhapatnam District and remit the same to the MGNREGS funds by way of Bank Draft in favour of "Commissioner, Rural Development, A.P., Vijayawada” under intimation to this office and Project Director, DWMA, Vizianagaram.” t In view of a close scrutiny of the impugned order dated 11. 16.02.2019 shows, as rightly argued by learned counsel for the petitioner, the 4*'^ respondent has issued proceedings, without conducting any enquiry. Therefore, it is needless to emphasize the order is devoid of 12. reasons and bereft of following the principles of natural justice. In similar circumstances, a learned Single Judge of High Court of Andhra Pradesh at Hyderabad, having found that no opportunity of hearing was afforded to the I « 9 petitioner therein and his explanation was not considered by the authority, set aside the impugned order of termination of the petitioner therein from the service and directed the concerned authority to pass appropriate order after affording a personal hearing to the petitioner. The said order squarely applies to the facts of the case on hand. f 13. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others^ regarding maintainability of writ petition in the context of availability of alternative and efficacious remedy, the Apex Court held thus; 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for Issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in atleast three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied). t The instant case falls in one of the exceptions carved out by the Apex Court, the principles of natural justice is a casualty here. On considering the submissions of both the learned counsels and 14. / upon perusing the entire material on record, it appears that, the 4 respondent AIR 1999 SC 22 = MANU/SC/0664/1998 10 has passed the impugned proceedings dated 16.02.2019 without issuing any notice to the petitioner, which is violation of principles of natural justice. Therefore, this Court is inclined to dispose of the present writ petition by remanding back the matter to the respondents for fresh consideration. Having regard to the facts and circumstances and on submissions of both the learned counsels, the impugned proceedings vide Rc.No.566/2019,P9, dated 16.02.2019 issued by the 4'^ respondent is hereby set aside. Further, the matter is remanded back to the respondent with a direction to issue a notice to the petitioner to submit his explanation regarding the misutilization of funds. On such receipt of explanation, the 4^^ respondent is directed to consider the same and pass appropriate orders, after affording ample opportunity of the petitioner, strictly in accordance with law, within a period of four (04) months from the date of receipt of a copy of this order. 15. an With the above directions, the Writ Petition is disposed of. No 16. costs. As a sequel, miscellaneous applications pending, if any, shall 17. stand closed. 3D/- K. TATA RAO DEPUTY REGISTRAR SECnON OFFICER //TRUE COPY// To, 1. The Project Director and District Water, Management Authority, Office of Collectorate, Viziayanagaram, 2. The Director, Panchayat Raj and Rural Development, Main Road, Tadepalli, Guntur District. 3. The District Collector and Program, Co-Ordenator, M.G.S.R.E.G.(Mahatma Gandhi National Rural Employeement Guarantee) Scheme, Office of Collectorate, Viziayanagaram. 4. The Chief Executive Officer, Zilla Praja Parishad, Viziayanagaram. 5. The Principal Secretary, State of Andhra Pradesh, Department of Panchayat Raj and Rural Development, Secretariat Buildings, Velagapudi, Guntur District. 6. The Chief Executive Officer, Zilla, Praja Parishad, Visakhapatnam. 7. The Proprietor, M/s. Dilip Infra, a Proprietory concern, Mr. K. Venkataiah, H.NO.30-2-453, Rama Colony, Salur, Vizianagaram District. 8. One CC to SRI SRINIVAS AMBATI Advocate [OPUC] 9. Two CCs to GP FOR PANCHAYAT RAJ RURAL DEV (AP), High Court of Andhra Pradesh [OUT] 10. One CC to SRI G SRINIVASULA REDDY, Advocate [OPUC] 11. One CC to SRI RAYAPROLU SRIKANTH, Advocate [OPUC] 12. Three CD Copies gsg ■* HIGH COURT N DATED: 30/01/2025 ORDER WP.No.682 of 2020 anob^ ^ 2 t FEB 2025 | ^ Current Section * ^ o DISPOSING THE WP WITHOUT COSTS