Andhra HC (Pre-Telangana)
C. Madhusudhan vs Apseb And Anr. on 13 March, 2003
Equivalent citations: 2003(3)ALD31, 2003(3)ALT755
Author: R. Subhash Reddy
Bench: R. Subhash Reddy
ORDER R. Subhash Reddy, J.
1. This Writ Petition is filed seeking Writ of Certiorari to quash the proceedings in Memo No. CE/ENQ/DM.V/ 332-01/90-14, dated 25-7-1997 passed by the second respondent, i.e., Member Secretary, AP Electricity Board (presently A.P. TRANSCO) and sought for consequential direction to grant seniority, promotion and other benefits.
2. The impugned order dated 25-7-1997 was passed by the appellate authority on the appeal filed by the petitioner herein, modifying the punishment from removal to that of reduction by 30 ranks in the seniority list of Assistant Engineers (Electrical). Few necessary facts for disposal of the Writ Petition are as under:
3. The second respondent has initiated departmental action against the petitioner herein, who was working as Assistant Engineer, initially appointing one Mr. S. Prabhakaran, Divisional Engineer, Technical, as Enquiry Officer to enquire into the allegations of misbehaviour and abuse of the officials and other lapses/irregularities alleged to have been committed by the petitioner herein. The charges levelled against the petitioner are as follows:
"1. It is alleged that the Divisional Engineer/ OP/Bhadrachalam has sent a word to Sri C. Madhusudhan, Assistant Enginner, through Sri P. Krishnamurthy, FM to come to yard for arranging required operation commissioning of 7.5 MVA 132/33 KV power transformer programmed for commission on that day. But he refused to obey the instructions of the higher officers and continued to stay in the control room. It speaks his disobedience for which he is liable for disciplinary action.
2. It is alleged-that on 28-6-1988 at about 18.30 hrs Sri C. Madhusudhan, Assistant. Engineer assaulted Sri P. Kodandaramaiah, ADE/Operation/Kothagudem and Sri G. Ramulu, FM without any provocation, in presence of the Superintending Engineer/Operation/Khammam Divisional Engineer/OP/Bhadrachalam and many other officers and staff in the control room, when he was on 2nd shift, which amounts to misconduct as per regulation 6(x) of APSEB employees discipline and appeal regulations cited and liable for disciplinary action.
3. It is alleged that Sri C. Madhusudhan, AE is generally loose tempered and quarrelsome both with superiors and subordinates. He quarreled with project officer/LTDA/Paioncha and his staff previously while working as AE/Tribal. He misbehaved with Chief Engineer/ KTPS/ and Divl. Engineer/LD/KTPS/ on carrier phone. He quarreled with Divn. Office Commercial staff as well as Kothagudem sub-divn-staff. He is in a regular habit of abusing and threatening the Manugur substation staff. The 220 KV SS staff are afraid of him. It comes under misconduct. For which he is liable for disciplinary action."
4. The said enquiry Officer has conducted enquiry and submitted his report vide letter dated 14-6-1989 to the second respondent-disciplinary authority. As per the said enquiry report, which I perused from the record submitted by the learned Standing Counsel for the respondents, it reveals that he has recorded findings holding that Charge No. 1 has not been proved and other two charges are held to be proved and further recorded that the petitioner's misbehaviour is liable for disciplinary action. After submission of the said enquiry report, on the ground that the material witnesses were not examined, the disciplinary authority has set aside the enquiry report and appointed one Mr. M.I. Rahman, Superintending Engineer, Enquiries, as Enquiry Officer to conduct de novo enquiry. The said authority has conducted de novo enquiry before whom the petitioner appears to have initially appeared, but not effectively participated in the later stages of enquiry to cross examine the witnesses. Ultimately, the enquiry officer has submitted report to the disciplinary authority holding that the charges levelled against the petitioner namely that he disobeyed the orders of the higher officials and abused and misbehaved with the higher officials and other employees on 28-6-1988 has held proved. Based on the said enquiry report, after issuing further show cause notice to the petitioner, the orders were passed by the original authority in Memo No.DP/ DM.V/332-01/90-10, dated 26-8-1993 removing the petitioner from service by treating the period of suspension from 30-6-1988 to 31-5-1990 as not on duty. Against the same, the petitioner preferred departmental appeal to the Chairman of the first respondent, who by impugned order dated 25-10-1997, taking into account 14 years of service put in by the petitioner by that time in the department found that the punishment of removal from service is harsh, has modified the punishment from removal to that of reduction by 30 ranks in the same category.
5. The main contentions of the learned Counsel for the petitioner is that the disciplinary proceedings against the employees of the A.P. Electricity Board, (presently A.P. TRANSCO) are governed by the AP State Electricity Board Employees' Discipline and Appeal Regulations. He submits that Regulation 10 prescribes the procedure for imposing penalties and as per the said Regulation, there is no power to set aside the first enquiry report and to order for de novo enquiry. In any event, the disciplinary authority cannot set aside the enquiry report without giving opportunity to the delinquent employee before setting aside it or ordering de novo enquiry. As such the action of the disciplinary authority is in violation of the principles of natural justice. It is his contention that the impugned order is based on the second enquiry report and the same is fit to be set aside by this Court. In support of the his averments he relied on the decisions reported in K.R, Deb v. The Collector, Central Excise, Shillong , Punjab National Bank v. Kunj Behari Misra , Yoginath D. Bagde v. State of Maharashtra .
6. On the other hand, the learned Standing Counsel for the respondents submits that when the important witness are ignored by the enquiry officer, it is always open for the disciplinary authority to set aside the enquiry report and order for de novo enquiry. He further submits that even in the first enquiry report, the petitioner was not exonerated totally and as per the first enquiry report, two out of three charges were held to be proved against the petitioner. He further submits that in view of the de novo enquiry ordered, the petitioner has not suffered any prejudice. It is the further case of the respondent that ample opportunity was given by the enquiry officer, but the petitioner himself did not avail the same and therefore, it is not open for the petitioner to question the impugned orders on the grounds stated by him at this stage. It is further submitted that though the charges are held to be proved, the appellate authority has taken lenient view and there are no grounds to interfere with the impugned orders in exercise of powers under Article 226 of the Constitution of India. In support of his contention, he relied on the decision reported in Union of India v. P. Thayagarajan .
7. Heard Sri Pratap Narayan Sanghi, the learned Counsel for the petitioner and Sri S. Ravindranath, learned Standing Counsel for the respondents, at length.
8. Regulation 10 of the A.P. State Electricity Board Employees' Discipline and Appeal Regulations prescribes procedure for imposing major penalties. As per Regulation 10(2), in every case, where it is proposed to impose on a member of a service any of the major penalties, the authority competent to impose the penalty shall appoint an enquiry officer, who shall be superior in rank to the person on whom it is proposed to impose penalty. As per Regulation 10(4)(b), on the findings of the enquiry officer, the competent authority tnay award punishment or otherwise give a decision. It is settled proposition of !aw that disciplinary authority can always differ with the findings recorded by the enquiry officer by recording its own reasons. In the present case, the disciplinary authority having found that the material witnesses were not examined by the first enquiry officer, has ordered de novo enquiry, which is by different officer. It is relevant to note herein that even in the first report submitted by the first enquiry officer, the petitioner was not exonerated from all the charges levelled against him. A perusal of the first enquiry report also indicates that the enquiry officer has recorded findings against the petitioner-employee and held that he is liable for disciplinary action. In view of the above factual position, the decision relied on by the learned Counsel for the petitioner in K.R. Deb v. The Collector, Central Excise, Shillong (supra) is not helpful to the petitioner. In the said case, the delinquent employee was exonerated fully in the first enquiry. Thereafter de novo enquiry was ordered to hold enquiry by different officer. In the said case, the relevant Rule itself provides that the disciplinary authority shall, if it is not the enquiring authority, consider record of the enquiry and record its findings on each charge. In the above context the Supreme Court has held that if merely the first enquiry report is not appealing to the disciplinary authority, the de novo enquiry cannot be ordered by another officer. But the facts of the present case are not so. There is no such obligation on the disciplinary authority to record findings by itself. Further the judgment reported in Punjab National Bank v. Kunj Behari Misra (supra) is also not helpful to the petitioner. In the decision referred to above, the Supreme Court held that the disciplinary authority is required to give opportunity of representation to the charged employee before differing with the findings of the enquiry officer. But this is not a case where the disciplinary authority has differed with the findings of the enquiry officer. But, when de novo enquiry was ordered, the second enquiry officer has given number of opportunities to the petitioner and the petitioner having failed to utilize such opportunities and failed to participate effectively in the enquiry, it is not open for him to plead that he was not given opportunity and action is in violation of principles of natural justice. Even the decision relied on by the petitioner in Yoginath D. Bagde v. State of Maharashtra (supra), the Supreme Court held that the charged employee is entitled for opportunity before reversal of finding/s is/are recorded in his favour in the enquiry report. Even the said case is also not applicable to the facts and circumstances of the present case.
9. On the other hand, the learned Standing Counsel for the respondent has relied on the Judgment of the Apex Court in Union of India v. P. Thayagarajan (supra), wherein it is clearly held that the disciplinary authority, on the report submitted by the enquiring authority can pass appropriate orders, including order for de novo enquiry. As such, ratio decidendi of the said decision, in my view, applies to the facts and circumstances of the present case, where the disciplinary authority having noticed that the enquiry officer has omitted material witnesses, has set aside the enquiry report and ordered for de novo enquiry. A perusal of the record also reveals that number of opportunities were given to the petitioner and the petitioner-charged employee was not diligent and sincere to participate in the enquiry.
10. In view of the above, I hold that there is no violation of any statutory rule and the relevant regulation, i.e., Regulation 10(4)(b) which empowers the disciplinary authority to take appropriate decision on the enquiry report. The said power includes the power to order de novo enquiry particularly when enquiry was concluded by the first enquiry officer ignoring the material witnesses. In any event, in the report submitted by the first enquiry officer, the petitioner was not exonerated from all the charges and therefore, the order to hold de novo enquiry was not prejudicial to the petitioner. As such there is no irregularity or any illegality in the order of disciplinary authority to order de novo enquiry and the final order inflicting punishment is based on the valid report. There are no grounds to interfere with the same. Even the submission of the learned Counsel for the petitioner that the charged employee was not given opportunity before setting aside the report is also not tenable. It is not a case where the disciplinary authority has recorded its own findings differing with the findings of the enquiring authority. This is a case where the enquiry authority has conducted enquiry ignoring the material witnesses; as such the said enquiry report was set aside and de novo enquiry was ordered by different officer. The second enquiry officer has given opportunity to the delinquent employee, but the charged employee though initially participated in the enquiry, did not choose to continue the participation in the enquiry. As such, it is not open for him to plead that he should have been given opportunity even at the stage of setting aside the enquiry report. It is to be seen that even the report, which was set aside was not in favour of the charged employee in entirety and therefore when no prejudice is caused to him, it is not open for him to plead for any opportunity at the stage of ordering de novo enquiry. In any event, the appellate authority has taken lenient view and modified the punishment from removal to that of reduction by 30 ranks in the same category.
11. For the foregoing reasons, I do not find any illegality or infirmity in the procedure adopted before passing the orders. As such the petitioner is not entitled for any relief. The Writ Petition fails and it is accordingly dismissed. No costs.