Telangana High Court
P. Narsing Rao, vs The Central Power Distribution Company ... on 11 January, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 3773 OF 2012
ORDER:
Against the order dated 19.09.2011 of the 3rd respondent - Divisional Engineer, Electrical Operations, APCPDCL, Medchal, R.R. District, removing him from service, petitioner filed this Writ Petition to declare the said action as arbitrary and hold that he is entitled to be reinstated into service as lineman.
2. Petitioner was initially appointed as Junior Lineman in 1996, promoted as Assistant Lineman in 1999 and as lineman in 2003. While he was working as such, disciplinary proceedings were initiated against him on 10.10.2007 alleging five charges, gist of which is that he was reported to have abstained from duty from 25.07.2007 without proper sanction of leave and that he reportedly failed to hand over 13 Nos. rolling stock meters and that he did not remit some amounts into company's account. His case is that entire enquiry was conducted behind his back without furnishing the necessary documents and the same were provided to him upon his request, after issuance of show cause notice. Petitioner stated that enquiry was conducted against him on the purported 2 ground that he was absent from 25.07.2007, respondents issued press notification in 'Surya' newspaper of Hyderabad edition on 29.05.2008 directing to appear before the Enquiry Officer and he was set ex parte during the enquiry. Petitioner stated that he reported to duty on 11.10.2007 after expiry of permitted leave and when he came to know about the notice of the 3rd respondent, he approached them along with necessary medical certificate and fitness certificate, however, he was not allowed to join duty. According to petitioner, with prior permission only, he proceeded on leave. Against the impugned order of the 3rd respondent, he preferred an Appeal to the 2nd respondent, but no orders are passed yet.
3. The 3rd respondent filed the counter-affidavit stating that while working as Lineman, petitioner indulged in grave irregularities; such as 1) not handing over 13 rolling stock meters, after replacing stuck up meters during May 2007, ii) released electricity connections without fixing meters at consumer premises, iii) collected amounts from consumers towards payment of current consumption bills and did not remit the amount in the departmental accounts; iv) collected amounts from consumers promising to provide new connections and shifting of poles but did not remit the amounts; and v) abstained from duty from 25.07.2007 onwards without prior 3 permission from the competent authority. The Enquiry officer was appointed to enquire into the allegations and petitioner was informed about appointment of Enquiry officer and charge sheet was also sent to his address. It is stated that as petitioner was not present at the given address, paper advertisement was issued in 'Surya' newspaper directing him to appear for enquiry within 15 days, but he did not turn up. As no defence/reply was filed, enquiry was finalized and show cause notice was issued on 08.03.2010, sent through registered post to the given address in Service Register but it was returned as 'no such person available at the given address'.
It is stated that petitioner, in his representation dated 16.11.2010, stated that in July, 2007, he suddenly fell ill with heavy low back pain and admitted in hospital, due to financial problems, his relatives had taken him to his native place for Ayurvedic treatment. In the said representation, petitioner has not mentioned his applying leave nor enclosed any medical certificate. Further, in his representation dated 06.01.2011, he submitted medical certificate and fitness certificate from 25.07.2007 to 10.10.2007 ie. after lapse of three years. It is also stated that explanation submitted by petitioner was carefully examined with reference to the material available on record and findings of the Enquiry Officer/Divisional 4 Engineer (Enquiry) and as per the Regulation 6(XLVII) of APSEB D&A, as adopted by APCPDCL, for his unauthorized absence for a continuous period exceeding one-year with effect from 25.07.2007, they have come to the conclusion to impose punishment of 'removal from service'. Petitioner preferred Appeal to the SE / OP / R R North, who observed that he had not offered any fresh points in his Appeal for consideration and therefore, concluded to reject the Appeal. The same was sent to petitioner by registered post acknowledgment due to the address furnished by him in the appeal, but the same was returned by the postal authorities 'unclaimed'.
4. In his reply, petitioner stated that AAE/OP/Jagathgirigutta has not made any efforts to serve charge memo against him as no evidence is produced before the court, in this regard. It is stated that respondents have admitted that he was promoted as Lineman on 01.09.2003 so he was not the custodian of Section departmental stores. The Enquiry Officer evidently has not verified the records of Section Office, Electricity Revenue Officer records & Section stores records to ascertain whether or not 13 Nos. defective meters at consumer's premises were replaced with rolling stock meters. In this regard, it is submitted that all the rolling stock meters which were issued to petitioner during May, 2007 were fixed at the 5 consumers' premises and the removed defective meters were handed over to the then Addl. Asst. Engineer/Operation Section/Jagathgirigutta. It is further stated that even the Enquiry Officer's charge sheet was not served upon him by the Additional Assistant Engineer/Operation Section/Jagathgirugutta, though he was continuously meeting him with a request to admit him to duty after recovery from the illness.
5. The main stress of learned counsel for petitioner Sri D. Linga Rao is on the ground that enquiry proceeded on the assumption that petitioner abstained from duties without proper sanction of leave, but he submitted leave application to the Additional Assistant Engineer and he was permitted to avail leave on medical grounds. He further submits that the Enquiry Officer issued the charge memo contrary to Rules. Respondents ought to have communicated the notice of enquiry duly publishing them in the Gazette or through any other accepted mode of publication. Here, learned counsel cites the judgment of the Hon'ble Apex Court in Union of India v. Dinanath shantaram Karekar 1, wherein it was held that publication in newspaper is not sufficient and that very initiation of disciplinary proceedings is vitiated.
1 1998(6) Supreme 534 6
6. On the contrary, learned Standing Counsel for TSCPDCL Sri R. Vinod Reddy submits that once notice is sent through registered post, it is presumed to be served as per General Clauses Act. He quoted the following judgments in support of this statement: M.K. Tirupathi Rao v. Deputy General Manager, Syndicate Bank, Hyderabad 2, C.C. Alavi Haji v. Palapetty Muhammed 3. According to learned Standing Counsel, publication of notice in newspaper is a valid service (see Mada Lokeswara Prasad v. UCO Bank,Himayathnagar, Hyderabad 4).
7. After hearing the rival contentions, it is to be seen that learned counsel for petitioner mainly rests his case on the ground that there is clear procedural irregularity and violation of contemplated Rules and his client was not served with any charge memo / show cause notice before the order of removal was passed. On the contrary, the case of respondents is that once notice is sent through registered post to the address furnished by petitioner, it is deemed to be served as per General Clauses Act. Petitioner was served with show cause notice dated 08.03.2010 on 01.12.2010 and he submitted explanation also 2 2016(4) ALD 119 3 (2007) 6 SCC 555 4 2010(1) ALD 168 (DB.) 7 on 10.12.2010. Hence, the question of non-service of notice / charge memo does not arise.
8. In this factual backdrop, this Court inclines to have a look at the impugned order which removed petitioner from service as per Regulation 6(XLVII) of APSEB D&A Regulations read with C.O.O.GM(IR&L) Ms. No. 545, dated 03.01.2007. The said Regulation, for the purpose of clarity, reads as under:
" 6. Acts and omissions constituting misconduct:
The following acts and omissions shall be treted as misconduct:
(XLVII) Unauthorised absence from duty for a continuous period exceeding one year."
In C.O.O.GM (IR&L) Ms. No. 545, dated 03.01.2007 it was stated that the Transmission Corporation of A.P. Limited after careful consideration and in supersession of Regulation 28(3) of APSEB Service Regulations Part-I hereby directs to adopt the orders issued by the Government of A.P. in the reference first cited in all cases of unauthorised absence from duty for a continuous period exceeding one year in respect of the employees of AP TRANSCO after duly following the procedure laid down in APSEB Employees Conduct Regulations and Discipline and Appeal Regulations as adopted by AP TRANSCO."
It is also expedient to extract Regulation 10 which reads as under:
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" 10. Procedure for imposing penalties:
1) No order imposing on a member of a service a penalty specified in items (1), (ii) and (iii) (v) or (ix) of regulation 5 shall be passed except after.
a) The member of the service is informed in writing by the authority competent to impose the 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 given an opportunity to make any representations he may wish to make to such authority, and
b) Such representation, if any, is taken into consideration by the authority competent to impose the penalty
2)(a) In every case where it is proposed to impose on a member of a service any of the penalties specified in terms (iv), (vi), (vii) and (viii) in regulation 5, 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 the penalty, or shall itself hold an enquiry either SUO-MOTU or on a direction from a higher authority. In every such case the grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required, within a reasonable time, to file a written statement of his defense and to state whether he desires an oral enquiry or to be heard in person or both. The person charged may, for the purpose of preparing his defense be permitted to inspect and take extracts from such official records as he may specify, provided that the enquiry officer may, for reasons to be recorded in writing refuse such permission, if, in his opinion, such records are not relevant for the purpose or it is against public interest to allow access thereto. On receipt of the statement of defense within the specified time or such further time as may have been given, an oral enquiry shall be held if such an enquiry is desired by the person charged or he is decided upon by enquiry officer or is directed by the competent authority. At that enquiry, oral evidence shall be heard as to such of the allegations as are not admitted and the persons charged shall be entitled to cross examine 9 the witness, to give evidence in person and to have such witnesses called as he may wish, provided that the enquiry officer may, for special and sufficient reason to be recorded in writing, refuse to file, call a witness. After the oral enquiry is completed, the person charged shall be entitled to file, if he so desires, any further written statement of his defense. If no oral enquiry is held and the person charged desires to be heard in person, a personal hearing shall be
9. Here in this case, though several charges were levelled, petitioner was removed from service for his unauthorised absence from 25.07.2007 onwards. In the impugned order, it is mentioned that the Divisional Engineer / Enquiry /APCPDCL was appointed as Enquiry Officer to conduct a detailed departmental enquiry on 04.10.2007. The Divisional Engineer while furnishing the enquiry report has stated that a charge sheet was issued on the delinquent officer and the same was returned by the AAE/OP/Jagathgirigutta as he could not find the whereabouts of petitioner after making several efforts to serve the same at the address available on record. Despite press notification issued in Surya Newspaper, on 29.05.2008 directing petitioner to present himself before the Enquiry Officer, he has not responded, hence, enquiry was finalised ex parte and accordingly, a show cause notice was issued to him on 08.03.2010 directing to show cause as to why the punishment of removal from service and ceased to be APCPDCL employment with effect from 25.07.2007 by invoking 10 Regulations 15(4) of APSEB Lave Regulations as adopted by AP TRANSCO / APCPDCL read with C.O.O. GM (IR&L)/Ms.No. 545, dated 03.01.2007. The above show cause notice was also returned as 'no such person is available on the address'. While so, petitioner approached the Divisional Engineer and submitted the representation to issue re-posting orders; then show cause notice was served on him and petitioner acknowledged the same on 01.12.2010. At his request, certain documents were also supplied on 20.12.2010. Petitioner submitted his explanation on 27.12.2010 and 06.01.2011 by enclosing medical and fitness certificates. Not satisfied with the same, he was removed from service.
10. In the light of the above procedure followed before passing the impugned order, the judgment relied on by learned counsel for petitioner in Dinanath Shantaram Karekar's case (supra) has no application to the facts of the present case. In the said judgment, it was held that if the charge sheet issued to delinquent by registered post was returned with postal endorsement 'not found', it cannot legally be treated to have been served. In case of disciplinary proceedings, actual service of charge sheet and show cause notice is essential, hence, the theory of communication cannot be invoked and actual service must be proved and established. Whereas, in this case, notice 11 was tried to be served on petitioner through AAE, Jagathgirigutta, but it was returned as 'no such person at the address'. Then, the respondents resorted to paper publication. In the said case, service of notice was sought to be effected on the respondent by publication in a newspaper without making any earlier efforts to serve him personally by tendering show cause notice either through the office peon or by registered post.
11. On the other hand, learned Standing Counsel sought to justify that publication of notice in newspaper is a valid service. In Mada Lokeswara Prasad's case (supra), it was held that notice published in local daily newspaper is valid. In M.K. Tirupathi Rao's case, this Court categorically held as under:
" 34. Under Section 27 of the General Clauses Act, 1897 (for short, 'the Act of 1897"), there is a presumption of service when the letter was addressed to correct address by registered post and it reads as follows:
"27. Meaning of service by post: - Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing. prepaying and posting by registered post. a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
35. In Parimal v. Veena @ Bharti, AIR 2011 SC 1150, the apex Court, relying on its earlier decision in Greater Mohali Area Development Authority and others v. Manju Jain and others, AIR 2010 SC 3817, held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 (for short, 'the Act of 1872") and Section 27 of the Act of 1897 there is a presumption that the addressee has received the letter sent by registered post.
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36. In similar circumstances, the Apex Court in Gujurat Electricity Board and another v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, held as follows:
"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."
37. In the present case, the question of adducing any evidence to rebut the presumption does not arise except producing documents which are not disputed but no documents were produced to rebut the presumption contained under Section 27 of the Act of 1897." In C.V. Alavi Haji's case, the Hon'ble Apex Court observed as under:
" 13. ..................... When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until 13 the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. Vide Jagdish Singli v. Natthu Singh, State of M.P. V. Hiralal and V. Raja Kumari v. P. Subbarama Naidu). It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
12. In view of the above settled legal position, this Court finds no substance in the contention of learned counsel for petitioner that no show cause notice / charge sheet was issued and consequently, petitioner is not entitled to claim any relief. The Writ Petition is therefore, devoid of merits and deserves to be dismissed.
13. The Writ Petition is accordingly, dismissed. No costs.
14. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 11th January 2024 ksld