Andhra HC (Pre-Telangana)
Mohd.Quader Ali vs A.P.Transco Ltd., Rep. By Its Chairman ... on 14 September, 2012
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.2341 OF 2000 14.09.2012 Mohd.Quader Ali A.P.Transco Ltd., rep. by its Chairman and Managing Director,Vidyuth Soudha, Somajiguda, Hyderabad and others. Counsel for the Petitioner: MR.K.VASUDEVA REDDY Counsel for the Respondents: STANDING COUNSEL FOR APTRANSCO <GIST: >HEAD NOTE: ? Cases referred 1 (2002) 2 SCC 290 2 (1996) 9 SCC 281 ORDER:
The present writ petition has been filed to declare a Memo.no.CE/Disc.Cases/AS-XX/611/NA92)/ 95-7 Dt.17.8.1998 of the Andhra Pradesh State Electricity Board (for short "the Board") and a consequential memo No.CE(DMisc.cases)/DM-XX/6111/Na92)/95-8 dt.30.8.1999 issued by it's successor , the 1st respondent and to set them aside.
2. The petitioner was employed as Revenue Cashier in the erstwhile Board. In September 1994, a complaint was made against the petitioner by a press reporter B.Anjiah of Machareddy Mandal about temporary misappropriation of a sum of Rs.1,003/- paid by a consumer by name Reshma Bee. vide memo dated 20th July, 1994 the petitioner was allegedly 'warned' by the Board.
3. However, an enquiry was ordered against the petitioner and two others for the same alleged misconduct and charge sheet dated 3.2.1996 was issued to the petitioner. He gave a reply to the charge sheet denying the charges on 08.3.1996. A Superintending Engineer of the Board was appointed as the Enquiry Officer . He submitted a report dt.20.9.1996 stating that the petitioner had committed misconduct of temporary misappropriation.
4. Basing on the said report, the Secretary of the Board accepted the findings of the Enquiry Officer and provisionally proposed to punish him by "keeping him at minimum of time scale for a period of two years" and permit him to "earn two increments thereafter". Accordingly he issued a show cause notice dated 31.10.1997 to the petitioner to show cause why the said punishment cannot be imposed on the petitioner. The petitioner submitted explanation dated 3.12.1997 to the said show cause notice and pleaded that it was a minor mistake and that his conduct be excused . Thereafter, the Member Secretary of the Andhra Pradesh State Electricity Board vide proceedings in Memo No.CE/Disc.Cases/AS- XX/611/NA(2)/95-7, dated 17.8.1998 confirmed the punishment of keeping the petitioner at the minimum of time scale for a period of two years and permitted him to earn increments thereafter.
5. Challenging the same, the petitioner preferred an appeal under regulation 18 of the AP State Electricity Board Discipline and Appeal Regulations on 8.1.1999.
6. In the meantime, there was a bifurcation of Andhra Pradesh State Electricity Board into APTRANSCO and APGENCO under the provisions of AP Electricity Reform Act, 1998. By virtue of powers conferred under Section 23 of the said Act and Sub-Rule (2) of Rule -6 and Sub-Rule (5) of Rule (7) of AP Electricity Reform (Transfer Scheme) Rules, 1999, the Government of Andhra Pradesh formed four distribution companies namely, Eastern Power Distribution Company of Andhra Pradesh Limited, Southern Power Distribution Company of Andhra Pradesh Limited, Central Power Distribution Company of Andhra Pradesh Limited and Northern Power Distribution Company of Andhra Pradesh Limited in T.O.O.(ACS) Ms.No.6, dated 9.4.2002. In exercise of authority conferred under Article 30-D of Articles of Associations of DISCOMS, the Managing Directors of 4 DISCOMs are re-designated as Chairman-cum-Managing Director and the CMD/APTRANSCO ceased to be the Chairperson and Managing Director of the Board of 4 DISCOMS with effect from 9.4.2002. These facts have been placed on record by R1 .In this view of the matter, the claim of the petitioner has to be dealt with by the Northern Power Distribution Company of Andhra Pradesh Limited, Warangal.
7. The said Northern Power Distribution Company of Andhra Pradesh Limited, represented by its Chairman and Managing Director, being a successor of the Board and the 1st petitioner , is a necessary and proper party to the writ petition and is suo-moto impleaded as respondent No.5 in the writ petition in exercise of the powers of this Court under Rule 16(a) of the Writ Proceedings Rules, 1977.
8. The petitioner contended in para 9 ground (v) of the affidavit filed in support of the writ petition that the memo dated 17.8.1998 was issued by the Member Secretary of the Board, who was the ultimate authority in the erstwhile AP State Electricity Board, that subsequent to bifurcation of AP State Electricity Board, the post of Member Secretary was re-designated as the Chairman-cum-Managing Director in the newly formed AP TRANSCO Limited, that the same person/individual (who was earlier the Member Secretary of the Board) had taken charge as Chairman-cum-Managing Director in the newly formed AP TRANSCO, that the appeal dt.8.1.1999 submitted by the petitioner against the memo dated 17.8.1998 was considered by the same authority/individual( who passed the impugned memo dated 17.8.1998) and was rejected by memo dated 30.8.1999 and that this is impermissible in law.
9. This allegation made by the petitioner is not denied by the respondents in the counter affidavit filed by them. Therefore, on the ground of non-traverse, the said allegation of the petitioner is deemed to have been admitted. It is settled law that a person cannot sit in appeal over his own order. In the present case, the individual, who functioned as a Member Secretary of the AP State Electricity Board before its bifurcation and passed the order in Memo dated 17.8.1998 inflicting punishment on the petitioner has also decided the appeal against the very same memo by proceeding dated 30.8.1999.
10. In Amar Nath Chowdhury v. Braithwaite and Co. Ltd.1, (2002) 2 SCC 290, at para 6 , page 293 it was held as follows:
"One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as nemo debet esse judex in propria causa, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kinds and forms. It may be pecuniary, personal or there may be bias as to the subject-matter etc. In the present case, we are not concerned with any of the aforesaid forms of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of disciplinary authority. In Financial Commr. (Taxation) Punjab v. Harbhajan Singh2 it was held that the Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subject-matter of appeal before the Board was whether the order of removal passed by the disciplinary authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum- Managing Director of the Company acted as a disciplinary authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant."
11. In view of the above principle of law, the consideration of the appeal of the petitioner against the order Memo dt.17.8.1999 and it's rejection by the impugned order dt.30.8.1999 by the same individual who had passed it (i.e Memo dt.17.8.99) is impermissible in law. Thus there has been a serious violation of principles of natural justice.
12. Therefore the order dated 30.8.1999 passed by the first respondent is set aside and the matter is remitted back to the Chairman-cum-Managing Director of Northern Power Distribution Company of Andhra Pradesh Limited, Warangal, to consider the appeal filed by the petitioner against the memo dated 17.8.1998 and to pass orders in accordance with law within a period of two months from the date of receipt of a copy of this order. All the contentions of the parties are left open.
13. The writ petition is allowed to the extent indicated above. There shall be no order as to costs.
_______________________________ M.S.RAMACHANDRA RAO, J Date:14.09.2012