Andhra HC (Pre-Telangana)
Mohd. Abdul Waheed vs A.P.S.E.B., Hyederabad And Another on 26 July, 1999
Equivalent citations: 1999(5)ALD75
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER
1. The petitioner in all these writ petitions is the same. The three writ petitions are being disposed of by a common order.
2. The petitioner joined the A.P. State Electricity Board (hereafter referred to as 'the Board') as a lineman on 3-2-1958. In course of his service, he was transferred and promoted from place to place and ultimately retired on attaining age of 58 years as Additional Assistant Engineer on 30th November, 1994. He retired in due course, on superannuation. However, on 30-4-1979 while he was in service a preliminary enquiry was held against him by issuance of memo by his superior i.e., the Superintending Engineer, alleging that he was responsible for shortage of certain material of which petitioner was expected to take care of. Tentative loss of material was valued to be worth Rs.1,97,384/-. The petitioner was asked to show cause as to why disciplinary enquiry should not be initiated against him for said delinquency. The petitioner had given his reply to the said show-cause notice on 26-7-1979. He gave certain explanations which shall be referred to at an appropriate place. The petitioner subsequently gave another representation denying that he was responsible in any way for the alleged loss. This was on 23-8-1980. Not satisfied with the explanations, the petitioner was placed under suspension on 8-2-1985. (First) Enquiry Officer was appointed for holding disciplinary enquiry against the petitioner on 12-2-1985. However, for some reasons, the Enquiry Officer was changed within three weeks and another Enquiry Officer (second) was appointed by Order dated 4-3-1985. The Second Enquiry Officer framed two charges against the petitioner. One was regarding shortage of store material for which preliminary enquiry was held and, the second was regarding absence of the petitioner without obtaining appropriate leave. The Charge Memo was served on 28-6-1985. However, this Enquiry Officer was also changed later on and, he withdrew Charge Memo issued by him by letter dated 3-7-1985. The petitioner also returned the Charge Memo which was received by him earlier. This return of Charge Memo was done by petitioner on 8-7-1985. In the meantime a third Enquiry Officer was appointed on 27-6-1985. The third Enquiry Officer was appointed by the orders under signature of the Secretary of the Board. On 1-10-1985 the petitioner was served with the Charge Memo containing the same two charges which were served on him by the second Enquiry Officer. The Enquiry Officer after considering the explanation submitted by the petitioner to the Charge Memo served on him submitted his Enquiry Report and found the petitioner guilty of the first charge. Second charge was dropped as the so called absence of the petitioner, in the mean time was regularised by grant of leave. Respondent No.1 on basis of the report received from the Enquiry Officer issued a show-cause notice to the petitioner, on 8-7-1987 with copy of the report, to show-cause why his two increments should not be stopped with cumulative effect and, why an amount of Rs.1,65,640/- should not be recovered from him, as the Enquiry Officer found loss to that extent which was caused to the Board due to negligence/delinquency of petitioner. After considering the petitioner's reply to the said show-cause notice on 19-9-1988, respondent No.1 passed order by imposing punishment of stoppage of two increments with cumulative effect and, a direction for recovery of the aforesaid amount which was equivalent to the loss caused to the Board. The petitioner challenged the said order before the Appellate Authority i.e., the Board, the Appellate Authority however, affirmed the order of respondent No.l and dismissed the appeal on 2-1-1992.
3. The petitioner has challenged the appellate authority's order dated 2-1-1992 by writ petition bearing No.4927 of 1992 (hereafter referred to as 'the first writ petition').
4. As stated already the petitioner retired in November, 1994, on reaching superannuation. It may be pointed out that in the meantime the petitioner's suspension was revoked and he was reinstated into service on 17-7-1987. After the petitioner was allowed to retire on superannuation order was passed by Superintending Engineer on 18-4-1995 to the effect that the petitioner was allowed to draw increments from June, 1975 till 1st April , 1984 which was not in accordance with the Rules, as the petitioner had not passed the Electricity Board-Accounts Test before June, 1975. It was directed by the said order dated 18-4-1995 that the amount which was overpaid by the Board to the petitioner due to erroneous grant of increments between June, 1975 to 1-4-1984 should be recovered from the petitioner. As a consequence of this order, the petitioner's retiral benefits were withheld till recovery was effected. The petitioner challenged this order dated 18-4-1995 by WP No.9418 of 1995 (hereafter referred to as 'the second writ petition').
5. During the pendency of second writ petition, an interim direction was initially given by the Court that no recovery, of the alleged excess payment made, shall be enforced till disposal of the writ petition and further direction was given that the pensionary benefits of petitioner be sanctioned within certain time. However, the Board subsequently moved for vacating of this interim order and, at that time it was representated before the Court by the Board that no recovery of amount paid towards increments would be made unless the petitioner was given opportunity to show-cause against such recovery. On this submission, the Court found no justification to continue the interim direction and vacated the same by order dated 24-1-1996 in WV MP No. 1464 of 1995.
6. Inspite of the representation made at the time of argument in the WV MP No. 1464 of 1995 in the second writ petition, the Divisional Electrical Engineer issued a Memo dated 23-3-1996 to the petitioner that excess paid amount due to release of erroneous increments was Rs.1,36,647.79 ps. and was required to be recovered. On 24-7-1996 the Secretary of the Board issued a Memo to the effect that any terminal benefits of petitioner be released only if he agreed to have the disputed amount adjusted against the terminal benefits. No part of the terminal benefits had been paid to the petitioner till then. The petitioner filed WP No.21630 of 1996 (hereafter referred to as 'the third writ petition') for obtaining a declaration that actions of the respondents, seeking to recover the alleged amount of excess payment due to wrong grant of increments by Memo dated 18-4-1995, followed by Memo dated 23-3-1996 and the Memo of the Secretary dated 24-7-1996 seeking to pressurise the petitioner to agree for adjusting of alleged excess payment made against the terminal benefits due, were unsustainable.
7. It will thus be seen that the third writ petition is really a redundant one because it seeks to reiterate the prior claim which was made in the second writ petition and taking exception to the Memo issued by the Secretary of the Board pressurising the petitioner to agree for adjusting the demand against the retiral benefits. As the demand of recovery of excess payment itself was subject-matter of second writ petition, the third writ petition appears to me to be redundant. However, it has been admitted by a learned single Judge of this Court and is being heard along with earlier two writ petitions.
8. It is contended by the learned Counsel for the petitioner as far as the first writ petition is concerned, that appointing three Enquiry Officers one after the other showed mala fides. Next it is contended that the stores material which is subject matter of charge was lying in open. There was no security whatsoever and the petitioner cannot be fastened with liabilily as there was no arrangement for the security was made by the Board. It is next contended that the weighing machine, by which the weighing of the material was made to find out the loss, was defective and this was brought to the notice of the Board by the Weights and Measures Inspector repeatedly. Relying upon such weighing machine for determining the liability of the petitioner was unsustainable. The petitioner had raised this point specifically but it was not considered either by respondent No.l or by the appellate authority. Therefore, the order impugned is vitiated for non-application of mind. Next it was contended that on many occasions the petitioner was sent on deputation and yet he was supposed to be in charge of the material in question. During his deputation period other persons were kept incharge of the stores and petitioner could not be fastened with liability of acts or omissions committed by such incharge persons during petitioner's absence. Lastly it was contended that no oral evidence and regular enquiry was held. Only petitioner's explanation was called and on basis of the documents and explanation, the impugned orders were passed. In absence of any oral evidence, the enquiry is vitiated. The learned Counsel for the respondent-Board supports the order on all the grounds.
9. The first contention of the petitioner that change of Enquiry Officers shows mala fides on part of the Board cannot be accepted. From the chronology of the events it is clear that the Enquiry Officers were changed within a short time. It is not that the enquiry was held or completed and then the Enquiry Officer was changed. It is open for the employer to change the Enquiry Officer in the midst. If only any specific allegations of mala fides are shown then, the petitioner can take exception to the change of Enquiry Officers. The Enquiry Officers were changed for departmental convenience and no objection can be taken on ground of change of Enquiry Officer at the initial stage.
10. The petitioner contended that the second Enquiry Officer after submission of Charge Memo had withdrawn the same and therefore, the enquiry was deemed to have been cancelled. This contention is without merit. The Enquiry Officer cannot stop or delete the enquiry. It is only the disciplinary authority which can take ultimate decision. The Enquiry Officer obviously withdrew charges because he was already replaced. The charge memo drawn by him was served on petitioner on 28-6-1985, but on 27-6-1985 itself he was replaced by third Enquiry Officer. Hence the fact that the Charge Memo served by second Enquiry Officer was withdrawn by him does not mean that the disciplinary authority had decided to shelve the enquiry. This point also does not appeal to me.
11. The contention that no oral evidence was recorded and that only explanation was sought for and documents were relied upon and therefore, the enquiry was vitiated does not appear to be a sound proposition. The provisions regarding disciplinary proceedings are to be found in Board's Employees' Disciplinary Regulations. The procedure for imposing penalties in disciplinary actions is to be found in Regulation No.10. The penalties which can be imposed for good and sufficient reasons for any misconduct are specified in Regulation No.5. Withholding of increments or withholding of promotions is prescribed in sub-clause (iii) and penalty of recovery from pay of any employee or the whole or any part of the pecuniary loss caused to the Board by any negligence or omission of the employee, is to be found in sub-clause (v) of Regulation No.5. Regulation No.10(1) refers to the procedure to be followed in imposing, on a member of service, any of the penalties specified in items (i), (ii), (iii), (v) and (x) of Regulaiion No.5. The procedure required to be followed is that the member of the service should be informed in writing by the authority competent to impose a penalty of, the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken and is to be given an opportunity to make any representation if he wishes to make such representation, to the authority and the authority shall take into consideration such representation before imposing the penalty. The procedure does not require for items (iii) and (v) of Regulation No.5, any thing more than what is prescribed in Clause (1). It is only in case where major penalties are to be imposed which are mentioned in Clause (2) that a fullfledged enquiry is required to be held. Therefore, I do not find any illegality having been committed in not regarding oral evidence in the case. In fact the petitioner was given ample opportunity to make his representation more than once in the matter. 1 am of the view that enquiry is not vitiated due to non-recording of oral evidence by the Enquiry Officer. The procedure does not require such recording of evidence.
12. The argument of the learned Counsel for the petitioner that the material which is subject matter of the enquiry was lying in open and therefore, the petitioner could not be held liable for the loss of same cannot be accepted. Such a wide proposition for seeking exoneration from the charge would give premium to negligent employees. The mere fact that the material was lying in open is no ground for holding that petitioner deserved to be exonerated.
13. Similarly the contention that on occasions the petitioner was on deputation and some other persons were kept incharge temporarily, has been dealt with by the authorities in their orders. It is adequately reasoned that this cannot be a ground for seeking absolvement of the charges. The impugned order shows that Store-verifications were done from time to time and it was result of store verification, during the period when petitioner was incharge that the shortage was found. The petitioner cannot make any grievance that he was not liable for shortage if any and, that somebody else could be liable though it is found that no other person was incharge at the time of verification done by the Officers.
14. However, there is considerable force in the contention that the weighing machine which were used for weighment of the material was defective and this should have been taken into consideration before fixing the liability on the petitioner. Weighing of the material has been done on the weighing machine at the spot. This cannot be disputed and indeed it has not been disputed before me. The petitioner has produced copy of the notice issued by the senior Inspector from the Weights and Measures Department wherein it has been stated that the weigh bridge situated at the Board premises had six defects. The Senior Inspector had directed the concerned Assistant Engineer of Central Stores to get weighing machines rectified. He had further directed not to put the weighing machine in use till it was rectified. It appears that to such notice the Assistant Engineer (Central Stores) had given some reply on 6-11-1978. The Senior Inspector of Weights and Measures then sent another letter dated 30th of November, 1978 informing that he had inspected the weighing machine and found that the weighing machine was not verified and stamped any time during 1977. It was further pointed out as the Board was a Government Department a lenient view was taken. Otherwise the case was fit for prosecution. The Inspector of Weights and Measures had again advised to get the weighing machine re-verified. It also appears that the Assistant Engineer (Central Stores) had requested the Superintending Engineer by letter dated 5-1-1978 the need to get the weighing machine serviced and rectified. On 1-3-1978 the Assistant Engineer further reported to the Superintending Engineer that the weighing machine was showing error. The petitioner had made grievance on 3-10-1978 that the weighing machine was not tested since 1976 onwards and it was not possible to find out the errors made by the weighing machine. There appears to be considerable correspondence in this respect. It is thus clear that the contention of the petitioner that the weighing machine was showing error is borne out by volume of evidence in the shape of correspondence. The petitioner's objection was not an imaginary one. The petitioner's objection therefore, needed a careful consideration by respondent No.1 as well as by the appellate-authority. Strangely, in the order passed by respondent No.1 there is absolutely no discussion about his objection raised by the petitioner. The appellate authority in the impugned order dated 2-1-1992 has no doubt referred to the points raised by the petitioner including of the defect in the weighing machine but while giving reasons for affirming the order the appellate authority has also ignored this vital point raised by the petitioner. The appellate authority only granted partial relief to the petitioner by holding that recovery from the petitioner for causing loss to the Board may be stopped from April, 1991 onwards. Obviously the appellate authority was not satisfied about the correctness of the weighing machine and hence it took such soft stand. The fact remains that important objection taken by the petitioner has not been dealt with by any of the authorities while inflicting punishment. This shows total non-application of mind. If the weighing machine was erroneous it is impossible to hold that the shortage detected was true. The shortage could be due to the defect which existed in the weighing machine. In the circumstances, the contention of the learned Counsel for the petitioner has to be accepted that the impugned order suffers from non-application of mind and has to be set aside.
15. Normally on setting aside the impugned order, the matter should have been referred back to the disciplinary authority to consider the objection and pass appropriate order. However, in the instant case I am not inclined to follow this procedure. As pointed out already, the petitioner has retired on attaining age of superannuation, almost five years back. The impugned charge is for alleged shortage detected during 22-2-1977 to 22-12-1978. The first notice was issued to the petitioner on 30th April, 1979 for holding the preliminary enquiry. It is now more than 20 years when the alleged shortage was found out. The petitioner has undergone sufficient harassment by now. It also appears that if shortages are less than 2 1/2% of the total quantity, the policy of the Board is to ignore such shortages. The shortage found in the instant case is bordering on such permissible limits. Admittedly in weighing machine was defective. The issue of material as well as receipt of material was done on the same weighing machine, The ultimate quantification of loss by weighment of the material was also done on the same weighing machine. It is thus clear that there was vast scope for errors at every stage of weighment. For all these reasons, I am of the view that no further prosecution of the petitioner needs to be done. As pointed out already the appellate authority itself has given relief to the petitioner by directing that no further recovery towards alleged loss caused to the Board should be made from the petitioner's salary. In view of all these facts, I think that the first writ petition deserves to be allowed. Hence, WP No.4927 of 1992 is allowed by making Rule absolute.
16. Turning to the second writ petition i.e., WP No.9418 of 1995, it deserves to be disposed of on a short point. Admittedly the petitioner did not make any misrepresentation or did not play any fraud in obtaining the increments. The very case of the Board is that it had erroneously released increments to the petitioner though the petitioner had not passed the necessary Accounts Test. The Accounts Test was originally required to be passed during the Probation period and according to the Original Rule unless the said Accounts Test was successfully passed, the probationer was not entitled to obtain certificate of satisfactory completion of probation. Some how or the other the petitioner's probation was declared as completed satisfactorily way back in 1970. Thereafter, a circular was issued that those who did not pass the Accounts Test were given further opportunity till June, 1975 to pass the said Accounts Test and if they did not pass the said Accounts Test by June, 1975 their increments will be withheld till they pass the said Accounts Test. Admittedly the petitioner passed the said Accounts Test sometime in 1984. Inspite of this, the Board itself granted increments to the petitioner throughout. The petitioner cannot be blamed for the inadvertance or error committed by the Board. The impugned Memo dated 18-5-1995 was issued after the petitioner was allowed to retire peacefully on 30th of November, 1994. It is strange, and shocking to some extent, to note that the Board issued the Memo for recovery of the amount disbursed by the Board of its own accord after the employee retired. After the employee retires, the Board has no power to recover the amount from any dues payable to the petitioner unless the petitioner was given any opportunity to show-cause. Admittedly no opportunity was ever given to the petitioner to show-cause against the proposed recovery. The Supreme Court has on more than one occasion held that if excess payment is made by the Management/employer to the employee due to its own error in computing the pay of the employee after long period, the employer should not recover the excess payment made by him if there was no fault of misrepresentation made by the employee. The learned Counsel for the petitioner has referred to the decisions in Sahib Ram v. Slate of Haryana, 1995 Supp (1) SCC 18 and Nand Kishore Sharma and others v. State of Bihar and others, 1995 Supp (3) SCC 722. In both these cases the employee was granted a pay scale to which the said employee was not entitled. The error was wholly of the employer. The employee had not by any act of his claimed or represented for such an erroneous excess payment. The Supreme Court pointed out that the employer should not make recovery of such excess payment made on account of mistake of the employer himself. Particularly so when no show-cause notice was given. I think that the same principle has to be followed in the instant case, more so because the petitioner has peacefully retired on superannuation long before the impugned Memo of recovery was issued. Hence following the principle laid down by the Apex Court in the aforesaid cases, the second writ petition i.e., WP No.9418 of 1995 is also allowed by making Rule absolute.
17. The third writ petition as stated earlier is redundant one. Once the second writ petition is decided, the fate of third writ petition is also decided. In the circumstances, the third writ petition i.e., 21630 of 1996 is also allowed. Now the respondents shall not withhold any pensionary benefits of the petitioner on any ground whatsoever. The terminal benefits of the petitioner shall be finalised within eight weeks of receipt of a copy of this order without any further delay.
18. The writ petitions are accordingly disposed of. No order as to costs.