WP/7238/2003 of O.K.S.REDDY Vs THE MD. ARECSL. KASIMKOTA AND ANR on 30 December 2009

Order:

This writ petition is filed questioning the order dated 22-11-2002 passed by the Managing Director of the first respondent-Society,reverting the petitioner from the post of Administrative Officer to AssistantAccounts Officer/Manager, as a measure of punishment, pursuant todisciplinary proceedings initiated against him.

2. The petitioner was appointed as Lower Division Clerk on 18-11-1974 in the first respondent – Anakapally Rural Electric CooperativeSociety Ltd., Kasimkota, Visakhapatnam. After holding several other posts,he was promoted to the post of Administrative Officer, from the category ofManager with effect from 18-05-1999. When he was working asAdministrative Officer, on certain complaints made, disciplinary proceedingswere initiated against him by placing him under suspension and an Advocateby name Sri N. Ranga Rao of Anakapally was appointed as enquiry officer,to conduct enquiry into the allegations leveled against the petitioner. In thedisciplinary proceedings, the enquiry officer has framed as many as sixcharges against the petitioner and issued statement of articles of charges.

The charges framed against the petitioner read as under:

1. “ That you while working as Administrative Officer, RECSKasimkota in abuse of your official position and actuated bycorrupt motive demanded and collected from Sri Doddi SivaSanyasi Rao, S/o. late Doddi Joga Rao of Kasimkota Village,illegal gratification of a sum of Rs.50,000/- (Rupees FiftyThousand only) in the month of November, 2000 in thepresence of his brother Doddi Venkata Suri Satyanarayana atyour residence at Anakapalle, for providing compassionateappointment consequent on the death of his father, Sri DoddiJoga Rao an employee of the RECS: Kasimkota.”

2. “that you while working as Administrative Officer, RECSKasimkota in abuse of your official position and actuated bycorrupt motive demanded and collected from the followingcontractors of the RECS: Kasimkota the sums noted againsteach of them for processing their bills in respect of the worksand executed by them in RECS:

3. “that you were instrumental in the petition dt.16.6.2001 putin by one Sri Bheesetti Appa Rao of Anakapalle against themanagement and affairs of the Rural Electric Cooperative Society, Kasimkota in that you furnished copies of thefollowing records of the society in utter disregard of officialdiscipline and secrecy:

1. Proceedings Lr.No.RECS/PUR/PE(P)/2001-02 dt.6.4.2001 ofthe Managing Director, RECS: Kasimkota

2. Proceedings Rc.No.RECS/ADM/Estt/Acctt/dt.12.4.2001 of theManaging Director, RECS: Kasimkota

3. Lr.RECS/PUR/Pre(P)/2001-02 dt.4.5.2001 of the ManagingDirector, RECS: Kasimkota addressed to Sri VenkateswaraElectric & hardware, Gopalapuram

4. Lr.RECS/PUR/PE(P)/2001-02 dt.7.5.2001 of the ManagingDirector, RECS: Kasimkota

5. Lr.RECS/PUR/PE(P)/2001-02 dt.5.5.2001 of the ManagingDirector, RECS: Kasimkota6. Lr.RECS/PUR/PE(P)/2001-02 dt.3.5.2001 of the ManagingDirector, RECS: Kasimkota

4. “that you in abuse of your official position and in utterdisregard of office discipline and secrecy indulged in sendingpetitions against the institution Rural Electric CooperativeSociety, Kasimkota and its officials on the names of thirdparties with a view to tarnish the image of the Rural ElectricalCooperative Society and its officials and management.

5. “that in utter disregard of office discipline you were foundabsent in the office when the Managing Director, RECS:Kasimkota sent for you during the following dates.

6. “that in gross violation of office discipline, you abstainedfrom duty on the 30[th] July, 2001 without applying for leavewhatsoever”

3. On receipt of the statement of charges from the enquiry officer, at firstinstance, the petitioner submitted a detailed representation to the Registrar ofCooperative Societies and requested to intervene in the matter by appointingan official of the Department as an enquiry officer in place of non-officialenquiry officer, i.e. the Advocate who was appointed as enquiry officer. Thereafter, the petitioner, while denying the charges framed against him,sought time from the enquiry officer to file a detailed explanation and he filed a detailed representation to the Managing Director of the Society on 03-11-2001 disputing the charges framed against him, wherein he has alsoquestioned the appointment of non-official as an enquiry officer to enquireinto the charges framed against him. Though the petitioner was consistentlyobjecting for the enquiry to be conducted by a non-official, i.e. the Advocate-enquiry officer, but, the enquiry officer proceeded with the enquiry andrecorded the statements of the complainants and conducted enquiry on 20-10-2001. Based on the statements recorded in the enquiry, the enquiryofficer sent his report dated 09-11-2001 holding that all the charges framedagainst the petitioner were proved. On receipt of the enquiry report, theManaging Director of the first respondent-Society issued show cause, noticedated 09-07-2002 to the petitioner to show cause, why he should notremoved from service. In response to the said show cause notice, detailedexplanations were filed by the petitioner on 19-07-2002 and 20-08-2002. Thereafter, the first respondent, by theimpugned order, by recording a finding that in view of the enquiry reportfurnished by the enquiry officer, the charges framed against the petitioner areproved, imposed on him the punishment of reversion from the post ofAdministrative Officer to that of Assistant Accounts Officer/Manager withimmediate effect.

4. In the affidavit filed in support of the writ petition, it is stated that thepetitioner, in the capacity of in-charge Managing Director, opposed numberof petitions and proceedings initiated against the Managing Director, whowas under suspension, challenging his suspension etc., and the said personafter his reinstatement, with a view to wreck vengeance against him, initiateddisciplinary enquiry proceedings by leveling false charges. It is alleged thatan outsider was appointed as an enquiry officer, at the instance of theManaging Director of the first respondent-Society, so as to punish thepetitioner on one ground or the other. It is the case of the petitioner that asmuch as the Board is the appointing authority for the post of Administrative Officer; as such, there is no jurisdiction to the Managing Director to pass anorder imposing punishment in the disciplinary proceedings. It is further thecase of the petitioner that appointment of a person who is an outsider asenquiry officer is contrary to Bye-laws and therefore the enquiry conducted isillegal and that no opportunity was given to him during the enquiry. It isalleged that the enquiry officer recorded findings merely based on the allegedcomplaints and alleged statements of witnesses without giving anyopportunity to cross-examine the said witnesses.

5. Counter affidavit is filed by the Managing Director on behalf of thefirst respondent-Society, wherein, while denying the various allegations of thepetitioner, it is stated that it being a Society, the provisions of Shops andEstablishments Act apply. While further denying the various allegationsmade by the petitioner, it is stated that there is no bar in the Bye-laws of theSociety for appointing an outsider as an enquiry officer. It is further statedthat the petitioner, having received the charge memo, did not file hisexplanation by 15-10-2001; as such there was no other option to the enquiryofficer except to complete the enquiry based on the material available and tosubmit a report to the disciplinary authority. With reference to therepresentation filed by the petitioner to the Managing Director in response tothe charge memo, it is stated that the explanation dated 03-11-2001 which issent to the first respondent is not tenable when the enquiry is pending beforethe enquiry officer. With regard to the allegation of the petitioner that he wasnot given sufficient opportunity in the enquiry, it is stated that the petitionernever asked for any cross-examination of any witnesses. With regard to thecompetency of the Managing Director of the first respondent-Society to passthe impugned order, it is stated that as per the service conditions/regulationsof the Society, the Managing Director is competent to impose any majorpunishment on the staff members working in the Administration andAccounts Wing of the Society. It is also stated in the counter affidavit that, inany event, the impugned order imposing punishment is passed pursuant to the resolution passed by the person in-charge of the Society; as such, thereare no grounds to interfere with the same, on the ground of jurisdiction also.

6. Heard Sri S. Sriram, learned counsel representing Sri D.V. Sitharam Murthy – learned counsel for the petitioner and Sri G. Prabhakar Rao, learned counsel appearing on behalf of therespondents.

7. It is submitted by Sri S. Sriram, learned counsel for the petitioner, thatthough the petitioner has been in service from the last several years, at nopoint of time any allegation was made against him and only because thepetitioner had to oppose the Managing Director in various applications, theManaging Director, after his reinstatement, started harassing the petitioneron one pretext or the other. It is submitted that initiation of disciplinaryproceedings against the petitioner is only at the instance of the ManagingDirector of the first respondent-Society, who is inimically disposed againsthim. It is further submitted that though the petitioner has filed detailedexplanation to the charge memo, to the first respondent, the same is nottaken into consideration by the enquiry officer. It is further submitted thatthough there was no material at all in respect of the charges, the enquiryofficer, by recording the statements of the witnesses, without giving him anyopportunity to cross-examine such witnesses, recorded adverse findingsagainst the petitioner; as such the same is illegal and arbitrary. It iscontended that the appointing authority for the post of Administrative Officeris the Board of the Society and hence there is no jurisdiction to the ManagingDirector of the Society to pass an order imposing punishment on thepetitioner. It is also submitted that there was no reason for appointing anoutsider, i.e. an Advocate as an enquiry officer leaving departmentalofficials. It is also submitted that in spite of the repeated objections of thepetitioner for conduct of enquiry by a non-official enquiry officer, the samehas not been considered in proper perspective and based on the enquiry report, which itself is a designed one, at the instance of the ManagingDirector, the impugned order is passed reverting the petitioner to a lowerpost.

8. On the other hand, Sri G. Prabhakar Rao, learned counsel appearingon behalf of the respondents submits that there were complaints against thepetitioner that he demanded bribe to extend the benefit of appointment oncompassionate grounds and also from the contractors for clearing their bills. It is submitted that in spite of receipt of charge memo, the petitioner did notchoose to submit any explanation to the enquiry officer and insteadsubmitted representation to the Registrar of Cooperative Societies. It is thecontention of the learned counsel for the respondents that as per the Bye-laws there is no prohibition for appointment of an outsider-Advocate as an enquiry officer and an outsider was appointed asenquiry officer only to give fair and reasonable opportunity to the petitioner. With regard to jurisdiction, it is submitted that as per the Bye-laws of theSociety, for the staff members who are working on the Administrative side,the Managing Director is the competent authority. Finally, it is submitted thatas much as the order imposing punishment of reversion is passed afterconducting necessary enquiry, by giving opportunity to the petitioner, thereare no grounds to interfere with the same.

9. At the outset, I deal with the jurisdictional aspect raised by thepetitioner, questioning the competency of the authority who passed theimpugned order of reversion against him. It is contended by learned counselfor the petitioner that as much as the appointing authority for the post ofAdministrative Officer is the Board, as such, the impugned order passed bythe Managing Director of the Society is without jurisdiction. Disciplinaryaction against the employees of the Society are governed by the bye-lawsframed in this regard, which are approved by the Board of Directors of theSociety. From the annexure to Chapter-IV of the bye-laws, it is clear that the Managing Director is competent to impose any major punishment on thestaff members working in the Administration and Accounts Wing. As muchas the post of Administrative Officer is on the Administration Wing, as such,the Managing Director is competent to pass an order of punishment againstthe petitioner in disciplinary proceedings. In that view of the matter, thecontention of the learned counsel for the petitioner that the Managing Directoris not competent to pass an order imposing punishment on the petitionercannot be accepted. Though learned counsel for the petitioner has relied ona judgment of this court in the case of Vivek Vardhini Education Society, Hyderabad v. State of Andhra Pradesh and others[[1]], but, the samewould not render any assistance in support of the plea of the petitioner in thiscase. In the said case, when an Advocate was appointed as enquiry officer,contrary to Rule 7(2) of A.P. Private Institutions Employees (Discipline andControl) Rules, 1983), a Division Bench of this court has held that anAdvocate who is a stranger to the management cannot be construed as anauthority superior in rank to the charged officer in the Department. Further,the learned counsel placed reliance on a judgment of the Hon’ble SupremeCourt in the case of J.K. AggarwalV. Haryana Seeds DevelopmentCorporation Ltd., and others[[2]], wherein it is held as under:

“On a consideration of the matter, we are persuaded to theview that the refusal to sanction the service of a lawyer inthe inquiry was not a proper exercise of the discretion underthe rule resulting in a failure of natural justice; particularly, inview of the fact that the Presenting Officer was a person withlegal attainments and experience. It was said that theappellant was no less adept having been in the position of aSenior Executive and could have defended, and did defend,himself competently; but as was observed by the learnedMaster of Rolls in Pett’s case that in defending himself onemay tend to become “nervous” or “tongue tied”. Moreover,appellant, it is claimed, has had no legal background. Therefusal of the service of a lawyer, in the facts of this case,results in denial of natural justice.

10. Coming to the facts of the case on hand, it is to be noted that there

10. Coming to the facts of the case on hand, it is to be noted that there was no request from the petitioner at any point of time for taking theassistance of a Lawyer to defend his case. Though the petitioner isobjecting, for appointment of an Advocate as enquiry officer, but, it is notbrought to the notice of this court any bye-law which prescribes appointmentof a departmental person alone as an enquiry officer. In absence of anyspecific rule for appointment of enquiry officer of the department only, it isalways open to the respondents to appoint an independent person as anenquiry officer. Merely because an Advocate is appointed as enquiry officer,in absence of such appointment being contrary to any statutory rule or bye-law, the petitioner cannot object to the same. Hence, the above judgment ofthe Supreme Court cannot render any assistance to the petitioner.

11. It is further submitted by learned counsel for the petitioner that in spiteof denial of charges by the petitioner, his explanation has not beenconsidered and without conducting proper enquiry and without giving anyopportunity to cross-examine the witnesses, examined in the enquiry,adverse findings are recorded by the enquiry officer against him andimpugned order of reversion is passed. Though six charges have beenframed against the petitioner, charges 1 and 2 appear to be serious. So faras the first charge is concerned, it is alleged that the petitioner accepted abribe of Rs.50,000/- from one Sri Doddi Siva Sanyasi Rao, S/o. late DoddiJoga Rao, to extend the benefit of appointment in the Society oncompassionate grounds. It is the case of the petitioner that during thelifetime of the deceased employee, there was a complaint against him and inthe enquiry conducted by the petitioner; findings were recorded against theemployee. When such is the case, the charge framed against the petitioneris to be examined very carefully. In the explanation filed by the petitioner inresponse to the charge memo, he has denied the charges framed againsthim and took further time to file a detailed explanation. Further, a detailedexplanation was also submitted to the Managing Director of the Society, butit appears that the said explanation has not been taken into account, by

adopting a too technical approach stating that it was not submitted to theenquiry officer. If such explanation was submitted to the Managing Director,who is the disciplinary authority, he ought to have forwarded suchexplanation to the enquiry officer before recording his findings. I have perused the record relevant to the conduct of enquiry by the enquiryofficer. The statements of the witnesses were recorded in the enquiry heldon 20-08-2001. The enquiry officer, before conduct of enquiry on 20-08-2001, has issued notice to the complainants and other persons whosenames appeared in the complaint, but, such notice was not sent to thepetitioner. Even the learned counsel appearing on behalf of the respondent-Society fairly stated during the course of arguments that no notice of enquirywas issued to the petitioner communicating the date of enquiry. Though it isspecifically pleaded by the petitioner that no opportunity was given to cross-examine the witnesses examined in the enquiry, but, in the counter affidavit,it is merely stated that the petitioner did not ask for cross-examination of thewitnesses. When such serious allegations are made with regard toaccepting of bribe for extending benefit of appointment on compassionategrounds, by all fairness, the enquiry officer should have notified the date ofenquiry on which date the statements of the witnesses were recorded. Byrecording the statements of the witnesses without even notifying the date ofenquiry to the petitioner and without giving any opportunity to cross-examinesuch witnesses, the enquiry officer should not have recorded any findingsagainst the petitioner. The findings which are based on such enquiryconducted on 20-08-2001 are in gross violation of principles of natural justiceand such procedure cannot be the basis for recording any adverse findingsagainst a delinquent employee based on the charges framed against him. Itis the case of the petitioner that written explanation was given to theManaging Director and the same is not taken into consideration by theenquiry officer on the ground that in spite of repeated reminders the petitionerdid not submit any explanation to him. Even assuming that a copy of such explanation was not sent to the enquiry officer, nothing prevented the enquiryofficer to notify the date of enquiry to the petitioner on which date thestatements of the witnesses were recorded, based on the complaint madeagainst the petitioner. Hence, it is clear that such adverse findings arerecorded in the disciplinary proceedings behind the back of the petitioner andin that view of the matter the same cannot constitute valid basis to imposeany punishment, as rightly contended by learned counsel for the petitioner.

12. The approach of the enquiry officer, in not even notifying the petitionerwith regard to the date of enquiry, is not only illegal and arbitrary, but contraryto the procedure for conduct of enquiry in disciplinary proceedings. Withregard to maintainability of the writ petition, it is the case of the petitioner thatfinances are controlled by the Government and there is a pervasive controlon the affairs of the Society, by the State. On the ground of maintainability ofthe writ petition, no serious attempt is made from the side of the respondentsto dislodge the petitioner on the said ground. In view of the allegations of thepetitioner that finances of the Society are controlled by the Government, andthe Government has got control on the administration of the Society also,this petition is maintainable. Even otherwise, when the first respondent-Society has framed bye-laws with regard to service conditions anddisciplinary action against its staff members and when such bye-laws areviolated, this court can certainly examine the same, in exercise of powersunder Article 226 of the Constitution of India. Though it is alleged by therespondents that there is a remedy of appeal against the impugned order tothe Board, but, it is to be noted that the writ petition was admitted in the year2003 and after keeping the matter pending for more than about 5 years, it isnot desirable to drive the petitioner, to avail the remedy of appeal at this pointof time. As such, this court, after going through the entire material on record,is of the view that the petitioner is imposed the penalty of reversion of postbased on the findings of the enquiry officer, without following the procedureand contrary to the principles of natural justice and fair-play.

13. For the aforesaid reasons, the punishment imposed on the petitioner isliable to be quashed. Accordingly, the order dated 22-11-2002, passed by the Managing Director of the first respondent-Society, reverting the petitioner from the post of Administrative Officer toAssistant Accounts Officer/Manager as a measure of punishment, is herebyquashed. Consequentially, the petitioner is entitled for all the benefits,including the difference in the pay and all other consequential benefits.

14. The writ petition is allowed as indicated above. No order as to costs.

December 30, 2009MRR

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R. SUBHASH REDDY, J

[1]2002 (1) ALD 323 (DB)[2]AIR 1991 SC 1221