WA/1578/2008 of Koneru Lakshmaiah College of Engineering, Vs The Commissioner of Technical Education, on 29 December 2008

1. The Commissioner of Technical Education, Government ofAndhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad.Andhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad.2. The Government of Andhra Pradesh, rep. by its PrincipalSecretarySecretary to Government, Technical Education Department, Secretariat, Hyderabad. Hyderabad.

3. S.G. Khan, S/o. Moula Saheb, R/o. Revendrapadu, Duggirala Mandal, Guntur District. Mandal, Guntur District.

… RESPONDENTS

Counsel for the Appellants: Mr. M. Sudheer Kumar Counsel for Respondents Nos.1 and 2: G.P., Technical Education Counsel for Respondent No.3: Mr. P.S. Rajasekhar WRIT APPEAL No.1618 of 2008

Between:

1. Koneru Lakshmaiah College of Engineering,Vaddeswaram, Tadepalli Mandal, Guntur District,Vaddeswaram, Tadepalli Mandal, Guntur District, Rep. by its Chairman K. Satyanarayana, S/o. Late Lakshmaiah,Aged 52 years, R/o.29-36-38, Museum Road, Vijaywada,Krishna District.Aged 52 years, R/o.29-36-38, Museum Road, Vijaywada,Krishna District.

2. Koneru Lakshmaiah College of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, rep. by its Principal. Tadepalli Mandal, Guntur District, rep. by its Principal.

APPELLANTS

AND

1. The Commissioner of Technical Education, Government of Andhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad. Andhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad.

2. S.G. Khan, S/o. Moula Saheb, aged about 44 years, R/o. Revendrapadu, Duggirala Mandal, Guntur District. R/o. Revendrapadu, Duggirala Mandal, Guntur District.

RESPONDENTS

Counsel for Appellants: Mr. M. Sudheer Kumar Counsel for Respondent No.1: G.P., Technical Education Counsel for Respondent No.2: Mr. P.S. Rajasekhar The Court made the following:

Common Judgment:(Per Hon’ble Sri Justice R. Subhash Reddy)

As much as the issue involved in these appeals is inter-related, they are disposed of by this common judgment.

2. These two writ appeals, under clause 15 of the LettersPatent, are filed by the Management of Koneru LakshmaiahCollege of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, aggrieved by the common order dated 30-10-2008 passedby the learned single Judge in W.P.Nos.10291 and 13108 of 2008.

3. For sake of convenience, the parties are referred to asarrayed in W.A.No.1578 of 2008.

4. The third respondent was working as Electrical Maistry inthe appellant-college. By initiating disciplinary proceedings on theproven misconduct of insubordination, negligence of duty,misappropriation of money etc., he was removed from service byorder dated 09-02-2005. The third respondent has questioned thesaid order by way of appeal as provided under A.P. Education Act,1982 (for short ‘the Act’). The appellate authority, i.e. theCommissioner of Technical Education, A.P., Hyderabad, by orderdated 08-01-2008, allowed the appeal and set aside the order ofremoval passed by the appellant-college against the thirdrespondent. The appeal was mainly allowed on two grounds,namely that the appointment of enquiry officer in disciplinaryproceedings was not in conformity with Rule 7(2) of AndhraPradesh Private Institutions Employees (Disciplinary Control)Rules, 1983 (for short ‘the Rules’) and also that the Managementdid not obtain prior permission of the competent authority ascontemplated under Section 79 of the Act.

5. While W.P.No.10291 of 2008 is filed by the thirdrespondent-employee seeking implementation of the directionsissued by the appellate authority, whereas W.P.No.13108 of 2008is filed by the appellant-college questioning the validity of the orderpassed by the appellate authority. By the impugned commonorder, the learned single Judge, while directing the appellant-college to implement the order passed by the appellate authority, rejected the writ petition filed by the appellant-college, to availremedy of further appeal before the Government. Hence, theseappeals by the appellant-college.

6. In these appeals, it is contended by Sri M. SudheerKumar, learned counsel for the appellant-college, that whileentertaining the writ petition filed by the third respondent, thelearned single Judge ought not to have relegated the appellant-college to avail the remedy of further appeal. It is submitted thatthere are no factual disputes at all and more particularly whileentertaining the writ petition filed by the third respondentemployee, the learned single Judge ought not to have relegatedthe appellant-college to avail further remedy of appeal. It is furthersubmitted that the appellate authority has passed orders bymisconstruing the provisions of the A.P. Education Act, 1982 andthe rules made thereunder. It is further submitted that at no pointof time during the process of enquiry or at any early stage the thirdrespondent-employee has disputed the competency of the enquiryofficer; as such it is not open for the third respondent-employee toraise such a plea at this stage. Even with regard to requirement ofobtaining prior sanction as contemplated under Section 79 of theAct, it is submi9tted that though the appellant-college has appliedfor grant of such permission, but, however, the competentauthority itself did not grant permission in view of the law declaredby the Hon’ble Supreme Court in T.M.A. Pai Foundation v. Stateof Karnataka[[1]].

7. On the other hand, it is contended by Sri P.S. Rajasekhar,learned counsel appearing for the third respondent-employee, thatthere is no reason for the appellant-college to approach this court

without availing the alternative remedy of further appeal providedagainst the order dated 08-01-2008 passed by the appellateauthority, i.e. Commissioner of Technical Education. It issubmitted that in spite of the fact that there is a specific provision,under Rule 7(2) of the Rules, which obligates the appellant-collegeto appoint a person superior in rank of the establishment alone asthe enquiry officer, but the appellant-college appointed an outsideras the enquiry officer and passed the order of removal, illegally. Itis submitted that there is no illegality in the order dated 08-01-2008passed by the appellate authority. It is further submitted that inview of the specific provision contained in the statute, i.e. the A.P.Education Act, 1982, itself, with regard to obtaining of priorpermission, the order passed by the appellant-college removingthe third respondent from service, without obtaining suchpermission, is rightly declared illegal by the appellate authority.

8. Against the third respondent, who was working asElectrical Maistry in the appellant-college, charges were framedwith regard to insubordination, negligence of duty,misappropriation of money, damage to the property of theinstitution etc. He was charge-sheeted vide charge sheets dated26-01-2004 and 29-07-2004. Thereafter, one Mr. M.V. NageswaraRao, Retired Assistant Commissioner of Labour, Vijayawada, wasappointed as enquiry officer to conduct enquiry into the chargesleveled against the third respondent. At this juncture, it is to benoticed that when the enquiry was being conducted, at no point oftime, the third respondent has raised an objection with regard toappointment of the enquiry officer. Even after conclusion of theenquiry, objections were called for with reference to the findingsrecorded by the enquiry officer. Even at that stage, the third respondent did not choose to raise any objection on the findingsrecorded by the enquiry officer. But, when an order of removalwas passed, the third respondent has raised a ground, namely thatthe enquiry officer was not competent to conduct enquiry and hisvery appointment is contrary to Rule 7(2) of the Rules.

9. Learned counsel for the appellant-college has relied upon ajudgment of this court in the case of Vivek Vardhini Education Society v. State of Andhra Pradesh and others[[2]].In theaforesaid judgment rendered by a Division Bench of this Court,while examining the scope of Rule 7(2) of A.P. Private InstitutionsEmployees (Discipline and Control) Rules, 1983, it is held asunder:

“If the charged officer had any reason to oppose theappointment of the advocate as the Enquiry Officer, he shouldhave without any loss of time opposed his appointment andshould have called upon the Management to appoint an officersuperior in rank to the petitioner as Enquiry Officer. That isthe first serious lapse on the part of the charged officer. It ispertinent to notice that even after disposal of the Writ PetitionNo.10508 of 1991 when the Management issued show-causenotice on 21-5-1993 to the charged officer, he did not raisethis plea, though admittedly he chose to file his reply to thatshow-cause notice.”

10. Even in the present case also, it is to be noted that whenan enquiry was being conducted by the enquiry officer appointedby the appellant-college, at no point of time the third respondentdid object to the appointment of the enquiry officer. On the otherhand, he participated in the enquiry and did not even choose to fileany objection with regard to competency of the enquiry officer toconduct enquiry. However, belatedly, i.e. when final orders arepassed removing him from service, such ground is sought to beraised. In view of the judgment referred above, which supports the

case of the appellant-college, we are also of the view that havingparticipated in the enquiry conducted by the enquiry officer withoutraising any objection, it is not open for the third respondent-employee to raise the plea that the appointment of the enquiryofficer was not in conformity with Rule 7(2) of the Rules. While itwas open to the third respondent-employee to raise such objectionat the earliest point of time, having subjected to enquiry before thesaid authority, he cannot question either the competency or thefindings recorded by the enquiry officer at this belated stage. But,at the same time, it is not dispute that as per the provisions underthe A.P. Education Act, 1982, particularly, having regard toSection 79 of the said Act, no order of removal can be passedwithout obtaining prior permission from the competent authority, bythe Management. Although it is stated that the Management hasapplied for grant of such permission, but fact remains that no suchpermission is granted by the competent authority. So long theprovisions under Sections 79 and 80 of the A.P. Education Act,1982 are not declared void by any court of competent jurisdictionand so long such provisions are operative, it is not open to theappellant-college to pass an order of removal of the thirdrespondent-employee from service, without obtaining priorpermission from the competent authority. On this ground, theorder of removal passed by the appellant-college cannot withstandand the first appellate authority has rightly set aside the same, byrecording such finding. Though, on behalf of the third respondent-employee, an objection is raised with regard to maintainability ofthe writ petition, we are of the view that as there are no seriousfactual disputes and further the third respondent’s writ petition isalready entertained by the learned single Judge, it is not a casewhere the appellant-college can be relegated to avail further remedy of appeal against the order dated 08-01-2008 passed bythe Commissioner of Technical Education.

11. As much as the order dated 08-01-2008 passed by theappellate authority is in operation, we do not find any valid groundto interfere with the directions issued by the learned single Judgein W.P.No.10291 of 2008 for implementation of the order dated 08-01-2008 passed by the said authority.

12. For the foregoing reasons, W.A.No.1618 of 2008 isdismissed. W.A.No.1578 of 2008 is allowed in part confirming theorder dated 08-01-2008 passed by the Commissioner of Technical Educationonly on the ground that the appellant-college has not obtained priorpermission as required under Section 79 of the Act, before passingan order of removal. The findings recorded by the appellateauthority, with regard to competency of the enquiry officer and thefindings recorded by him, are set aside. Consequently, we permitthe appellant-college to proceed further based on the findingsrecorded by the enquiry officer, after obtaining necessarypermission from the competent authority as required under Section79 of the A.P. Education Act, 1982. There shall be no order as tocosts.

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ANIL R. DAVE, CJ.

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R. SUBHASH REDDY, J.

[1]2002 (8) SCC 481[2]2002 (1) ALD 323 (DB)