WP/22368/2008 of K. Samba Siva Rao Vs Southern Power Distribution Company of A.P. Ltd., on 30 December 2009

COMMON ORDER:

As common questions of fact and law arise for consideration, these two writ petitions are heard together and decided by thiscommon order.

Facts in W.P.No.22368 of 2008:

The petitioner was appointed as a Junior Lineman in the year1993 in the 1[st] respondent Power Distribution Company. He wasconverted as Lower Division Clerk in December, 1999 and while hewas working in the office of E.R.O./Tenali, Cr.No.187/2002 wasregistered against him under Section 143, 406, 468, 420 & 120-B ofI.P.C. on the file of Kothapeta P.S., Guntur for the allegedmisappropriation of the Company’s revenues. Pursuant thereto, thepetitioner was placed under suspension pending the disciplinaryproceedings contemplated against him vide proceedings of theSuperintending Engineer, Guntur, dated 18.02.2003. Thereafter, thepetitioner was served with a charge-sheet dated 2.8.2003 issued by the Chief General Manager/Expenditure/Tirupati (4[th] respondentherein) who was said to have been appointed as Enquiry Officer toconduct departmental enquiry into the alleged irregularities against thepetitioner and others resulting in defalcation / misappropriation ofcompany funds to the tune of Rs.73.79 lakhs. The details of the alleged loss suffered by the A.P.S.P.D.C.L. were also furnished. Inresponse to the said charge-sheet, the petitioner submitted hisexplanation dated 6.1.2004 denying the alleged lapses on his part aswell as the alleged connivance with the representatives of the PrivateAccounting Agencies. Thereafter the Enquiry Officer submitted hisreport dated 28.2.2004 stating that the charge was establishedagainst the petitioner. While accepting the findings of the EnquiryOfficer, the 2[nd] respondent having provisionally concluded to awardthe punishment of dismissal from service issued a show-cause noticedated 29.04.2005.

The petitioner submitted his explanation dated 10.06.2005contending that the initiation of disciplinary proceedingssimultaneously with the criminal proceedings was impermissibleunder law. It was also contended that the appointment of the EnquiryOfficer even before a show-cause notice was issued by thedisciplinary authority giving an opportunity to the petitioner to explainthe alleged irregularities was illegal and consequently the entireenquiry was vitiated. It was also contended that the charge-sheetbeing vague and was not accurate as to the alleged irregularities, thesame was in violation of principles of natural justice. It was alsocontended that the Enquiry Officer failed to furnish the list of thewitnesses along with the charge-sheet and no opportunity was givento the petitioners to cross-examine the witnesses subsequently produced.

However, the 2[nd] respondent while observing that the saidexplanation was not satisfactory awarded the punishment of dismissalfrom service vide his proceedings dated 27.09.2005. Aggrieved by thesame, the petitioner preferred an Appeal before the 1[st] respondent which was rejected by order dated 20.02.2006. In the circumstances,the petitioner filed W.P.No.9131 of 2006. This Court allowed the saidwrit petition by order dated 1.11.2007 holding that the impugnedorders suffered from gross violation of principles of natural justice since the respondents failed to deal with each and every charge,explanation offered and the evidence on record while concluding thatthe charges were proved. Accordingly, the orders impugned thereinwere set aside leaving it open to the respondents to pass appropriatereasoned order after putting the petitioner on notice. Pursuant thereto, the 2[nd] respondent issued a fresh notice dated 1.2.2008 calling uponthe petitioner to submit his reply within 15 days as to why severepunishment including the punishment of dismissal from service shouldnot be imposed for the charges held proved. The petitioner submittedhis reply dated 18.04.2008 contending inter alia that the proposedaction on the basis of the very same findings recorded by the EnquiryOfficer were impermissible under law. However, the 2[nd] respondent by proceedings dated 29.05.2008 again awarded the punishment ofdismissal from service. The petitioner’s appeal before the 1[st]respondent against the said order dated 29.05.2008 ended indismissal by order dated 8.9.2008. Aggrieved by the same,W.P.No.22368 of 2008 is filed.Facts in W.P.No.23010 of 2008:

The petitioner was appointed as Lower Division Clerk on19.12.1995 in the A.P.S.E.B. Accounts section. While he was workingin the office of the AAO/ERO/Town/Guntur, the 2[nd] respondent videproceedings dated 23.6.2003 appointed the 4[th] respondent as EnquiryOfficer to conduct departmental enquiry against the petitioner into theallegations levelled against him which included manipulation ofrecords, preparation of duplicate bills, posting of wrong entries andetc., resulting in a financial loss of Rs.4,35,941-15 ps to theCompany. Pursuant thereto, the 4[th] respondent Enquiry Officerissued a charge-sheet and the petitioner submitted his detailedexplanation denying all the allegations. Basing on the enquiry report,the 2[nd] respondent issued the proceedings dated 29.05.2008dismissing the petitioner from service. Aggrieved by the same, though the petitioner preferred an Appeal the same was rejected bythe 1[st] respondent by order dated 12.09.2008. Hence, the present writpetition challenging the order of dismissal dated 29.5.2008 asconfirmed on appeal.

Separate counter-affidavits have been filed in the writ petitionsreiterating the allegations which were held proved by the EnquiryOfficer. It is also contended that the petitioners were given adequateopportunity at every stage and the penalty of dismissal was rightlyawarded after examination of the explanations submitted by thepetitioners.

I have heard the learned counsel for both the parties andperused the material on record.

The learned counsel for the petitioners at the outset contendedthat the procedure adopted by the 2[nd] respondent in appointing theEnquiry Officer even before giving an opportunity to the petitioners toexplain the alleged irregularities is contrary to the procedure prescribed under Regulation 10 (2) (a) of APSEB EmployeesDiscipline and Appeal Regulations (for short, ‘Regulations’) andtherefore on that ground itself the impugned orders are liable to be setaside.

On the other hand, the learned counsel for the respondentscontended that since no prejudice is caused to the petitioners onaccount of the alleged non-compliance with Regulation 10 (2) (a) thepetitioners cannot be granted any relief.

While placing reliance upon the decision of a Larger Bench ofthis Court in K. SWARNA KUMAR v. GOVERNMENT OF ANDHRAPRADESH AND OTHERS[[1]]it is further contended by the learnedcounsel for the respondents that mere breach of the rule is notsufficient to declare the entire proceedings as illegal unless and until itis shown that the petitioners suffered real prejudice on account of theprocedural violation.

Regulation 10 of the APSEB Employees Discipline and Appeal Regulations, as adapted to the APSPDCL and other PowerDistribution Companies deals with the procedure to be followed forawarding the penalties against the delinquent employees. ADivision Bench of this Court in CH. APPALA REDDY v. EASTERNPOWER DISTRIBUTION COMPANY OF A.P. LTD.[[2]]havinginterpreted the scope and object of Regulation 10 (2) (a) ofRegulations held that it mandates that the appointing authority shallappoint an Enquiry Officer when he proposes to impose a majorpenalty and such a proposal can emerge only after ascertaining theviews or obtaining the explanation from the employee concerned.

In the cases on hand, the fact that the Enquiry Officers werestraightaway appointed without giving any opportunity to thepetitioners herein to offer their explanation against the allegedirregularities is not in dispute. Admittedly the charge-sheets wereissued by the Enquiry Officers themselves and prior to that there wasno opportunity at all to the petitioners to meet the allegations.

It is to be noticed that in W.P.No.22368 of 2008 in response tothe show-cause notice dated 29.04.2005 the petitioner submitted hisexplanation raising a specific objection that the procedure followedwas contrary to Regulation 10 (2) (a). Similar objection was raised bythe petitioner in W.P.No.23010 of 2008 also. However, withoutconsidering the said objection, the 2[nd] respondent passed the ordersof dismissal from service. Even the 1[st] respondent failed to consider the scope of Regulation 10 (2) (a) and confirmed the impugned ordersof dismissal from service.

In the light of the law laid down by the Division Bench in CH.APPALA REDDY’S case (2 supra) the orders impugned in both thewrit petitions cannot be sustained and are liable to be set aside on theground that the same were in total violation of Regulation 10 (2) (a) ofthe Regulations.

As held by the Larger Bench, the doctrine of prejudice is applicable to the disciplinary proceedings even where the applicableRules in its entirety has been ignored and it is necessary for thedelinquent to establish the real prejudice suffered by him.

However, the procedure prescribed in Regulation 10 (2) (a) is offundamental character and its violation by itself invalidates the entire proceedings since the need to appoint Enquiry Officer would arise onlywhere the disciplinary authority is not satisfied with the explanationoffered by the delinquent and proposes to inflict a major penalty. Sucha decision can be arrived at only when a show-cause notice or charge-sheet is given by the disciplinary authority himself. Since therespondents committed breach of such fundamental requirement, thisCourt is of the opinion that the impugned orders cannot be sustained.

Conclusion

It is also relevant to note that the 2[nd] respondent in both thecases while imposing the major penalty of dismissal from servicefailed to assign any reasons. Except narrating the events andextracting the contents of the explanation offered by the petitioners, the 2[nd] respondent did not assign any reasons in support of his decision to confirm the punishment proposed. There was noconsideration of any of the objections raised by the petitioners muchless the specific contention that the procedure adopted was contraryto Regulation 10 (2) (a). The 1[st] respondent AppellateAuthority’s order was equally silent and bereft of any reasons. In theresult, both the respondents 1 and 2 failed to apply their mind to the need for compliance with Regulation 10 (2) (a) of Regulations whichgoes to the very root of the proceedings.

In the circumstances, the impugned orders being ex faciearbitrary and illegal are liable to be set aside. Accordingly, theimpugned orders passed by the respondents 1 and 2 in both the writpetitions are hereby set aside.

In the result, both the Writ Petitions are allowed as prayed for. No costs.

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Dt. 30.12.2009 GbsNote: L.R. copy to be marked.

[1] 2006 (2) ALD 585 (L.B.)

[2]2005 (3) ALD 525 (D.B.)

G. ROHINI, J.