Andhra HC (Pre-Telangana)
K. Audisesha Reddy vs The A.P. State Electricity Board Rep. By ... on 13 October, 1992
Equivalent citations: 1992(3)ALT742
ORDER B. Subhashan Reddy, J.
1. At issue, in this writ petition is as to whether inspite of the fact that the period of suspension is treated as on duty in an order passed in disciplinary proceedings against an employee, can the disciplinary authority, order withholding of the pay during the suspension period as a measure of punishment.
2. The facts, briefly stated, are thus: The petitioner was first recruited as Junior Engineer in the Electricity Department of Government and thereafter, after promotion as Divisional Engineer, his services were transferred and placed at the disposal of the 1st respondent-Board during the year 1973 and three years later, he was promoted to the post of Superintending Engineer (Electrical). While working so in the said post, he was placed under suspension on 28-2-1983 in a disciplinary action initiated against him. The charges levelled are 8 in number which are extracted below:
CHARGE NO. 1 : An amount of Rs. 603.96 lakhs was spent on revetments (293.49 lakhs) and backfilling of foundations with R.R. masonary (Rs. 251.47 lakhs) or the lower Sileru-Bommur 220 K.V.D.C. line utilising the unit rates provided in the contract for revetmentsand backfilling of foundations. Though quantities were not specified in the contract, the quantities executed by the two firms of contractors are 23949 cum. under backfilling with R.R. masonary and 23261 cum. under revetments. According to your tour diaries furnished by you, you had inspected the line on 10 occasions between July, 1979 and February, 1982. During the inspection you ought to have noticed huge revetments being constructed on the line at almost all locations in the hills reach and backfilling of foundations with R.R. Masonary without other alternatives being considered or estimates being sanctioned or the matter being brought to the notice of the Chief Engineer/Electricity (Projects) and the Board to enable consideration of the possibility of avoiding/reducing expenditure on the items. Due to your negligence and lack of control the field officers acted arbitrarily and, in connivance with the contractors, were responsible for the huge expenditure under backfilling with R.R. Masonary and revetments, under the clock of unquantified items and unitrates. As Superintending Engineer incharge of the T.L.C. lines it was your duty to have exercised control on the progress of work, both financial and physical, and brought the excesses to the notice of the competent authority in time.
CHARGE NO. 2 : No estimates appear to have been got sanctioned and approved by the competent authority to incur such heavy expenditure against revetments and backfilling with R.R. masonary. Also no action was taken by you to get the contract value enhanced or the revised estimate sanctioned for the line when expenditure had already begun to exceed the sanctioned estimates and contract values. This is a serious financial irregularity involving violation of codal provisions for which you are responsible.
CHARGE NO. 3 : Instructions were issued in Memo No.CPT/322/Tech./4/81, dated 31-3-81 to dispense with the practice of backfilling with R.R. masonary. Even after the above instructions, these works continued to be got executed. You failed to follow the instructions issued by the Chief Engineer's office and to check the action of the field officers thereby committing grave dereliction of duty.
CHARGE NO. 4 : During the execution of the work, it ought to have come to your notice that the length of the line had increased and that the erection costs have gone up. You ought to have taken action to submit the revised estimate and sent proposals for enhancement of the face value of the contract and obtained approval of the competent authority instead of allowing the expenditure to be incurred without authority.
CHARGE NO. 5 : A 9 K.M. 220 KV line (single circuit) was got executed through M/s. Toco Engineering without any sanctioned estimate or valid contract. An amount of about Rs. 106 lakhs was spent on the erection of this line out of which about Rs. 73 lakhs was incurred on revetments. You had not powers or authority to incur such huge expenditure without any sanctioned estimate or authorisation from the APSE Board. You thus violated all codal and financial rules and put the Board to an additional commitment of Rs. 106 lakhs which ultimately became a burden on the resources of the Board.
CHARGE NO. 6 : Wet type of foundations were adopted for all angle twoers even in rocky soils resulting in increase of excavations and concrete voluments by about 3 times. You did not obtain the approval of any authority for these excess. You thus failed to discharge your duties properly and caused loss to the Board.
CHARGE NO. 7 : The enormous increase in the cost of construction of line is due to:
(1) adoption of wet type foundations for B & C single tower even
in normal/rocky locations
(2) mass concreting of foundations wherever stubs are extended
in respect of the twoers located in hill slopes;
(3) indiscriminate use of provisions of backfilling of foundations
with R.R. masonary available under unit rates; and
(4) not using hillside extensions.
Had you inspected the line regularly you would and ought to have noticed all these aspects of execution of the work and accordingly checked the excesses and expenditure. You neglected your duties in this regard thus allowing the field officers to take advantage of your inaction and indiscriminately use the provision of backfilling of foundations with R.R. masonary available under unit rates causing heavy loss to the Board.
CHARGE NO. 8 : The Executive Engineers were sending copies of bills passed by them to you. The Budget' estimates and revised estimates from the Divisions were being compiled by you in your office and forwarded to the board and the Chief Engineer. In the course of normal review procedure -you could have easily verified the progress of work on the line and expenditure which had gone far beyond the estimated value. You did not devote your time and attention to this matter and allowed the field officers to pay the bills without reference to the provisions in the estimates. Thus you allowed the work to be executed with scant regard for financial prudence. This is a serious lapse on your part involving violation of financial and codal provisions."
The petitioner had refuted the said charges and filed an explanation stating that the Enquiry Officer had deliberately omitted the policy decisions of the board and revised financial procedures introduced by the Board which had direct bearing on the execution of the works in question; that as the electricity line was passing through the Hilly terrain, it required heavy revetment with back filling with R.R. masonary and that the cost was not remitted properly and the realistic cost could be determined only at the advanced stage of construction and that the Board was fully aware of these factors leading to the escalation of the costs and after verifying the same, the funds were provided. The petitioner also imputed lack of technical knowledge on the part of the Enquiry Officer on the ground that the enquiry of this nature involves technical expertise. The Enquiry Officer has submitted his report after conducting the enquiry to the effect that the expenditure incurred on the execution of the work in question has far exceeded the actual estimate and that the same can be attributed to the petitioner. The same is accepted by the disciplinary authority. The disciplinary authority has held that the charges levelled against the petitioner were proved, but by taking a lenient view had inflicted the punishment of with holding of pay and allowances during the suspension period, reducing the same to that of the subsistence allowances drawn already. But the suspension period as such, was treated as on duty. The petitioner had appealed, but unsuccessfully. Mr. Y. Suryanarayana, the learned counsel for the petitioner, raised the following contentions:
(1) that the enquiry report was not supplied in full and was dissected and was supplied in parts and the same has violated the principles of natural justice;
(2) that the order of both, the disciplinary authority and the appellate authority, are bereft of reasons and as such, they are unsustainable;
(3) that, in any event, even if the enquiry is valid there is no power for the disciplinary authority to impose the punishment inflicted as the treating of period of suspension as on duty ipso facto takes within it the right of getting all the pay and allowances, as if there is no break in service and that the inflictment of punishment of with holding pay and allowances reducing the same to that of subsistence allowance drawn during the period of suspension is not provided by the regulations concerned and as such, the order is bad.
3. Dealing with the first contention, it is pertinent to mention that the enquiry related, not only to the petitioner but several officers involved therein. As the enquiry report ran into several pages and being more voluminous, the disciplinary authority thought it fit to supply such part of the enquiry report which was relevant and pertinent so far as the petitioner is concerned. I have called for the entire report and I am quite satisfied that the portion of the enquiry report which was furnished to the petitioner was all that relevant and as such, the petitioner was not prejudiced by the said furnishing of the relevant portion of tine enquiry report and as such, I reject this contention and hold that there was no infraction of principles of natural justice on this score. As such, the decisions cited by Mr. Y. Suryanarayana, the learned counsel for the petitioner reported in State of Gujarat v. R.G. Teredesai, State of U.P. v. Mohd. Sharif, and Union of India v. Mohd. Ramzan Khan, are of no help to the petitioner. On the other hand, the decision rendered in Chandrama Tewari v. Union of India, cited by Mr. C.V. Mohan Reddy, the learned counsel for respondents to the effect that non-supply of copy of document having no bearing on charges relating to the delinquent do not infract principles, of natural justice supports the view which I have taken, while rejecting the contention of the petitioner on this aspect.
4. Coming to the second contention that the orders of disciplinary authority, as also the appellate authority, are bereft of reasons, the same cannot be countenanced after even having a glance at the orders passed by both the authorities mentioned supra. In the instant case, both the disciplinary authority, as also the appellate authority, have specified the charges, perused the explanation offered by the delinquent-petitioner and relied upon the basis in support of charges and also gave reasons for sustaining such charges and as such, the contention in this regard fits rejection. For this proposition also, Mr. Y. Suryanarayana, has relied upon the decisions reported in R.P. Bhatt v. Union of India, and S.N. Mukherjee v. Union of India, but the said decisions are inapplicable to the facts of this case, as in the instant case, as already stated above, the matter was dealt with both by the disciplinary authority, as also the appellateauthority, very comprehensively recording reasons and giving finding.
5. Coming to the last and vital contention that the disciplinary authority lacked jurisdiction to inflict the kind of punishment in the instant case of reducing tine pay and allowances to that of subsistence allowance for the entire period of suspension, even while treating the period of suspension as on duty, Mr. Y. Suryanarayana, submits that the penalty which is imposed is minor in nature and not major and this kind of penalty is not specified either under Andhra Pradesh State Electricity Board Employees Discipline and Appeal Regulations or Andhra Pradesh State Electricity Board Service Regulations Part-I. He also cites a judgment of the Supreme Court reported in A.L. Kalra v. P & E Corporation of India Ltd., . In the said judgment, it was held that non-repayment of house loan or motor-cycle loan was not an enumerated mis-conduct and that the said loans were paid under rules and for breach of rules action was already taken for realisation of the amounts and as such, that was not a mis-conduct for which disciplinary action can be initiated and if that was permitted, it would result in double jeopardy. But, the same is not the case here, as the mis-conduct alleged squarely falls under Rule 5(v)(a) of the Andhra Pradesh State Electricity Board Employees Discipline and Appeal Regulations. Mr. C.V. Mohan Reddy, the learned counsel for the respondents also contends that apart from the misconduct committed by the petitioner falling under the above Rule, the same also falls under sub-rule (3) of Rule 57 of Andhra Pradesh State Electricity Board Service Regulations Part-I. He cited some judgments rendered interpreting Rule 54 of the Fundamental Rules, saying that the words employed vinder the above regulation and also under the fundamental rules are in pari inateria and that the principles decided in the said judicial precedents govern this case also. 6. Mr. Y. Suryanarayana, the learned counsel for the petitioner contends that Rule 57 of the above regulations are inapplicable on the ground that sub-rule (1) deals with the consequences flowing from reinstatement of a delinquent employee after the inflictment of punishment of dismissal, removal, compulsory retirement or suspension has been varied and that sub-rule (2) thereof deals with the consequences flowing from exoneration of the delinquent employee of the charges levelled against him or finding that suspension pending enquiry is wholly unjustified. His contention is that the insant case does not fall even under sub-rule (3) which reads thus:
"In other cases, the employee shall be given such proportion of such pay and allowances as such competent authority may prescribe."
But, I cannot countenance his argument for the reason that sub-rule (3) of Rule 57 of the Andhra Pradesh State Electricity Board Service Regulations Part-I takes in all other cases pertaining to disciplinary action not covered by sub-rule (1) and (2). In fact, the above Rule 57 is in the nature of a consequential order after passing the substantive order recording a finding of guilt and inflictment of punishment. While, sub-rule (1) deals with the cases of reinstatement after the inflictment of punishment of dismissal, removal, compulsory retirement or suspension have been set at naught, not fully exonerating the delinquent employee. Sub-rule (2) thereof deals with the cases in which the delinquent employee is completely exonerated of tine charges levelled against him. The distinction for payment of pay and allowances under sub-rules (1) and (2) of Rule 57 is so clear, as for the cases falling under sub-rule (1), the discretion vests in the disciplinary authority regarding pay and allowance to be paid to the employee for the period of his absence from duty and whether or not the said period shall be treated as a period spent on duty, and under sub-rule (2) there is no such discretion as the said sub-rule (2) mandates the payment of full pay and allowances, if the employee-delinquent is exonerated of the charges levelled against him or if it is found that the suspension was wholly unjustifiable. Coming to the third category under sub-rule (3), the same is general in nature not covered by the situations arising either under sub-rule (1) or sub-rule (2) of Rule 57. The contention of Mr. Y. Suryanarayana, is that Rule 57 has no application at all as the same relates to major penalties. But, a reading of either Rule 57 as a whole or sub-rules (1), (2) and (3) separately does not warrant such an interpretation. Rule 57 does not make any distinction as major or minor punishment. In fact, Rule 57 only deals with the consequential order to be passed after the determination of the disciplinary proceedings and relates to only the mode of payment of pay and allowances. In the instant case, it is held by the disciplinary authority and confirmed by the appellate authority that the petitioner had misconducted himself in the execution of the works referred to supra in the charges and that, however, taking a lenient view of the matter while ordering his reinstatement and treating the suspension as on duty, his pay is reduced to that of subsistence allowance already drawn.
7. Mr. C.V. Mohan Reddy, the learned counsel for the respondents submits that this order squarely falls under sub-rule (3) of Rule 57 and is within the ambit of second proviso which says that the pay and allowances during the period suspension shall not be less than subsistence allowance and that is what has been ordered by the disciplinary authority in the instant case and that the disciplinary authority did not exceed its jurisdiction in ordering the said reduction of pay equal to that of subsistence allowance during the tenure of suspension. I agree with the contention of Mr. C.V. Mohan Reddy and accordingly I hold that the order passed by the disciplinary authority reducing the pay during the tenure of suspension of the petitioner to that of subsistence allowance already drawn is clothed with jurisdiction and particularly, under sub-rule (3) of Rule 57 of the A.P. State Electricity Board Service Regulations Part-I and that there is no error of jurisdiction on that count.
8. But, there is yet another aspect which was projected by Mr. Y. Suryanarayana, as he is known for such tenacity. His contention is that even assuming that the order of the kind can be passed by the disciplinary authority, the same infracts the principles of natural justice as the order affects the petitioner financially and it must be passed after objective consideration and that before passing the said order, the petitioner ought to have been put on notice calling for explanation. He cites two judgments on this point, one reported in B.D. Gupta v. State of Haryana, and the another in Gopalkrishna v. State of M.P., But, these cases also do not help the petitioner as the petitioner was given ample opportunity for projecting his case and the indication of the Enquiry Officer was to compulsorily retire the petitioner but the inflictment of punishment is very lenient as compared to the gravamen of the charges levelled against the petitioner and by no stretch of imagination, can it be said that even while inflicting a lenient punishment than indicated in the show- cause notice, a further notice is required. Morever, the order with regard to reducing the pay to that of subsistence allowance already drawn is a consequential one and when it is a consequential one, it does not need any further notice or opportunity to the delinquent. This was authoritatively held by the Supreme Court in Gopalkrishna v. State of M.P. (9 supra). Further, in Suresh Koshy v. University of Kerala, it was held mat principles of justice are not embodied rules and that they depend upon the facts of each case and as such, each case is to be judged on the basis of the facts arising thereto and on the facts of the instant case, there is no scope to say that there is infraction of principles of natural justice. The ultimate object of the principles of natural justice is to see that a fair enquiry is conducted and in the instant case, such a requirement was already met by the disciplinary authority. In view of the view mat I have taken above, I need not refer to the judgments cited by Mr. C.V. Mohan Reddy, touching upon the interpretation of Rule 54 of the Fundamental Rules.
9. In view of what is stated supra, there is no infirmity, legal or otherwise, in the order passed by the disciplinary authority and confirmed by the appellate authority and the writ petition is devoid of merits.
W.P. No. 6211 of 1988:
10. The result of W.P. No. 5609/88 governs this case too. If the reduction of pay to the subsistence allowance already drawn during the period of suspension of the petitioner consequent to the disciplinary proceedings initiated against him sustains, the petitioner cannot claim promotion as a matter of right, that too, from an anterior date. This court directed earlier to consider the case of the petitioner for promotion as the pendency of disciplinary proceedings does not preclude the authorities from considering the case of the delinquent employee for promotion subject, of course, to the result of the disciplinary proceedings. In the instant case, it is not the grievance of the petitioner that the promotion which was given to him is being taken away because of the inflictment of punishment in disciplinary proceedings. His grievance is that not only he was eligible for promotion, but he was eligible for the same with retrospective effect from the year 1983 when his immediate junior was promoted. It is pertinent to mention that no employee can claim promotion as a matter of right and that too for a selection post. For a selection post, the criterion is merit-cum-seniority. Merely because the petitioner's junior was promoted during the year 1983, the petitioner cannot be promoted ipso facto from the said date viz., from the year 1983. May be the petitioner was having a right to be considered for promotion and the committee constituted in that regard had considered the case of the petitioner and in view of the disciplinary action initiated against him and the result thereof and by considering all pros and cons, they had decided to promote him prosepectively from the date on which the order was passed. This court is not an appellate court over the said committee which has scrutinised the matter regarding promotion having taken all relevant aspects into consideration. It is not as if the petitioner had rendered unblemished service so as to impute any mala fides on the part of the authorities concerned with the consideration for promotion of the petitioner. The petitioner had a blemished record and suffered punishment and the same was upheld not only by the appellate authority, but also by me in the Writ Petition No. 5609/88 in which the inflictment of punishment of withholding the pay and other allowances of the petitioner and reducing the same to that of subsistence allowance already paid was challenged. In fact, the punishment inflicted is very lenient in contrast to gravamen of the charges which are held to be proved. The sum and substance of the charges is that the petitioner having been in responsible position had committed acts of negligence and dereliction of duties resulting in loss to the A.P.S.E.B. to the extent of crores of rupees. The quantum of punishment inflicted does not commensurate with the seriousness involved in the charges alleged and proved and it is beyond doubt that there is 'soft peddling' in the matter, presumably, as not only the petitioner, but several other officials and persons holding important position in A.P.S.E.B. had also their contribution to the said acts of negligence and dereliction of duties as without their concurrence, the loss occasioned to the A.P.S.E.B. could have been avoided. It is beyond any pale of doubt that the inflictment of very lenient punishment in this case is just an eye-wash to boast that for the lapses committed by the petitioner and the like, the respondent-Board had also taken disciplinary action and in fact, this is mere a pittance. There is an erosion in moral standards and quality of life in India, what with, instances of kickbacks, scams, hooliganism, corruption etc. While public interest is paramount and the individual interest should sub-serve public interest, in implementation, the reverse is the order of the day. For the sake of individuals indulging in malfeasance and misfeasance, there is sufferance to public interest and by causing loss of enormous amounts of public funds and State exchequer. But, merely because others also are involved and contributed to the drain of public funds, it cannot be said that the petitioner can extricate from the mis-conduct pointed at him. Further, the case of the petitioner alone is before me and I can only deal with his case. In the case on hand, as the petitioner had not been exonerated of the charges levelled against him and as mis-conduct alleged against him has been proved and the inflictment of punishment sustains, he had a blemished record and the authority concerned was entitled to give promotion from the prospective date alone. This view of mine is fortified by a judgment of the Supreme Court in Union of India v. Jankiraman, wherein it was held thus:
".....An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected, to ensure clean and efficient administration and to protect the public interest. An employee found guilty of mis-conduct cannot be placed on par with the other employees and his case has to be treated differently. The least that is expected of any administration is that, it does not reward an employee with promotion retrospectively from a date when for his conduct before that date is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted atleast till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion, his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penal ties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of proceedings, although it is for conduct prior to the date the authority considers the promotion."
11. In view of what is stated supra, I do not see any infirmity in the prospective promotion given to the petitioner.
12. In the result, both the writ petitions, namely, W.P. No. 5609/88 and W.P. No. 6211/1988 are dismissed, but with no order as to costs.