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2001 DIGILAW 1219 (AP)

Chairman, APSEB, Hyd. v. M. Kurmi Naidu

2001-10-08

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, J. ( 1 ) THE learned Counsel for the parties having been heard at great length, this appeal is being disposed of at the admission stage. ( 2 ) IT is directed against a judgment and order dated 27-4-2001 passed by a learned single Judge of this Court in Writ Petition No. 16322 of 1996 whereby and whereunder the writ petition filed by the respondent herein praying for the following reliefs: "to issue a writ, order or direction more particularly one in the nature of writ of certiorari by issuing rule nisi calling for the records leading upto and inclusive of the same by quashing the proceedings in Memo. No. DP/dm. V/59-P2/95-7, dated 6-9-1995 issued by the 1st respondent herein. . . . . " was allowed. ( 3 ) THE basic fact of the matter is not in dispute. The writ petitioner was an Assistant Engineer in the Andhra Pradesh State Electricity Board. His disciplinary authority is the Member-Secretary of the Board. A Charge Memo dated 18-10-1993 was served upon him. The writ petitioner submitted his explanation. Being not satisfied therewith, an Enquiry Officer was appointed, who submitted a report. However, the Member-Secretary, who was the disciplinary authority, did not apply his mind thereupon and in stead and in his place, the Chairman of the Board, who is the appellate authority, inflicted punishment of compulsory retirement from service upon the writ petitioner. Questioning the said order, the writ petition was filed. ( 4 ) THE contention raised on behalf of the writ petitioner before the learned single Judge, as also before us, was that the Chairman of the Board, who is the appellate authority could not have usurped the jurisdiction of the disciplinary authority, as a result whereof, the writ petitioner had been deprived of a valuable right of appeal. The said contention found favour with the learned single Judge having regard to the decision of the Apex Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank, AJR 1995 SC 1053. Hence, this appeal. ( 5 ) MR. The said contention found favour with the learned single Judge having regard to the decision of the Apex Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank, AJR 1995 SC 1053. Hence, this appeal. ( 5 ) MR. S. Ravindranath, the learned Counsel appearing on behalf of the appellants, inter alia, submits that the conditions of service of the writ petitioner respondent herein are governed by the regulations framed in terms of the Electricity (Supply) Act, 1948 known as Andhra Pradesh State Electricity Board Employees Discipline and Appeal Regulations (for short the Regulations ). Our attention is drawn to the fact that in terms of the aforementioned Regulations, the superior authority is also empowered to pass an appropriate order of punishment. Reference in this connection has been made to Regulation 7 (e) as also Note (1) appended to the Schedule. The said provisions reads thus: "7 (e ). Powers vested in an authority may be exercised by a superior authority in its discretion". "note (l): Powers vested in an authority may be exercised by a superior authority in its discretion vide Regulation 7 (e) of A. P. S. E. Board Employees Discipline Appeal Regulations". ( 6 ) MR. S. Ravindranath has submitted that the decision of the apex Court in Surjit Ghosh (supra) has no application in the instant case having regard to a later decision of the Apex Court in Balbir Chand v. Food Corporation of India Ltd. , AIR 1997 SC 2229 . ( 7 ) MR. V. Malik, the learned Counsel appearing on behalf of the writ petitioner, however, supported the judgment of the learned single Judge. ( 8 ) THE said Regulations had been made by the appellant-Board in exercise of powers conferred upon it under Section 79 (c) of the Electricity (Supply) Act, 1948. The said Regulations came into force with effect from 27-1-1970. Regulation 2 of the said Regulations deals with the applicability. Regulation 5 deals with Penalties. Regulation 6 provides for acts and omissions constituting misconduct. Compulsory retirement, otherwise than the retirement of an employee, as provided in the Board s Pension Rules is one of the penalties within the meaning of the aforementioned regulation. Regulation 2 of the said Regulations deals with the applicability. Regulation 5 deals with Penalties. Regulation 6 provides for acts and omissions constituting misconduct. Compulsory retirement, otherwise than the retirement of an employee, as provided in the Board s Pension Rules is one of the penalties within the meaning of the aforementioned regulation. Regulation 7 (a) states that the authorities, which may impose any of the penalties mentioned in Regulation 5 and the appropriate authorities to whom appeal lies, shall be as specified against each of the categories in Schedule. ( 9 ) CLAUSE (e) of Regulation 7, as noticed hereinbefore, provides that the power vested in an authority may be exercised by a superior authority in its discretion. Regulation 10 provides for procedure for imposing penalties. The Proviso appended to clause (2) (a) of Regulation 10 reads: "provided that the penalties specified in items (iv) and (vi) to (viii) in Regulation (5) shall be imposed by the competent authority with the concurrence of the committees constituted". ( 10 ) THE writ petitioner being an Assistant Engineer (Class II Service) in terms of the Schedule appended thereto, the order of compulsory retirement could be passed only by the Member-Secretary and the appellate authority is the Chairman. It is not in dispute that the Member-Secretary of the Board has framed charges and issued show-cause notice. The said authority, therefore, had exercised the power of the disciplinary authority. Could in the aforementioned situation, the disciplinary power could be exercised by the Chairman of the Board is the question involved in this appeal. ( 11 ) A right of appeal is a substantive right and a delinquent officer is entitled to appeal to the appellate authority specified in Column-10 of the Table in the Schedule in terms of Regulation 13 aforementioned. In terms of Regulation 14 (a), every employee belonging to Class II Service to which the writ petitioner belongs, shall be entitled to appeal to the Board against the order passed by the Chairman or to the Chairman against any order passed by the Chief engineer or a subordinate authority which interprets to his disadvantage the provisions of any service regulations or contract of service whereby his conditions of service, pay, allowance or pension are regulated. The competing right of appeal, which is a valuable right, vis-a-vis the discretionary jurisdiction of the superior authority purported to be in terms of Regulation 7 (e) of the Regulations and the Note (1) appended to the Schedule falls for interpretation in this case. ( 12 ) THERE cannot be, having regard to the several decisions of the Apex Court, any doubt, whatsoever, that a valuable right cannot be taken away except by or in accordance with statute. When a right of appeal has been provided to a delinquent-employee, such a right, in our opinion, except for just cause, cannot be taken away nor a delinquent officer can be deprived thereof. Regulation 7 (e) is in general terms. However, as indicated hereinbefore, the proviso appended to clause (2) of Regulation 10 specifically states that punishment of compulsory retirement, which comes within the provisions of clause 6 to Explanation (1) of Regulation 5, shall be imposed by the competent authority with the concurrence of the committee constituted thereunder. An order passed by the Chairman of the Board is, however, not subject to concurrence. A valuable safeguard has, therefore, been provided in favour of a delinquent officer to the effect that not only the disciplinary authority is required to apply its mind as regards the finding of guilt arrived at by the Enquiry Officer, but also such findings are subject to a further scrutiny by a competent authority. ( 13 ) IN the aforementioned situation, in our considered opinion, Regulation 7 (e) of the Note (1) appended to the Schedule must be read down keeping in view the well known principles of interpretation of statutes that the Court shall take recourse to harmonious interpretation. It is also trite that a subordinate legislation should be read in consonance with the provisions of the Act in a fair and just manner as it is well known that the Legislature intends to do justice and avoid injustice to the concerned employees, who are subjected thereto. ( 14 ) IN Surjit Singh (supra), the Apex Court in no uncertain terms held: "an employee cannot be deprived of his substantive right. ( 14 ) IN Surjit Singh (supra), the Apex Court in no uncertain terms held: "an employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/ Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases, while not doing so in the other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot favour of legality. Hence we are of the view that the contention advanced on behalf of the respondent bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted". ( 15 ) THE decision in Surjit Ghosh (supra) was referred in Balbir Chand (supra ). Surjit Ghosh s case (supra) had not been overruled by Balbir Chand. In Balbir Chand (supra) Surjit Ghosh (supra) was distinguished on the ground that having regard to the fact that a general enquiry had been conducted against all the delinquent officials, the highest in the hierarchy of competent authority, who can take disciplinary action against the delinquents being no other than the Managing Director of the Corporation, the impugned order is held as valid. It proceeded to record as follows: "it is seen that these are only instructions in conducting the proceedings as guidelines. AIR 1996 SC 11 . When more than one delinquent officer are involved, then with a view to avoid multiplicity of the proceedings, needless delay resulting from conducting the same and overlapping adducing of evidence or omission thereof and conflict of decision in that behalf, it is always necessary and salutary that common enquiry should be conducted against all the delinquent officers. When more than one delinquent officer are involved, then with a view to avoid multiplicity of the proceedings, needless delay resulting from conducting the same and overlapping adducing of evidence or omission thereof and conflict of decision in that behalf, it is always necessary and salutary that common enquiry should be conducted against all the delinquent officers. The competent authority would objectively consider their cases according to rules and decide the matter expeditiously after considering the evidence to record findings on proof of misconduct and proper penalty on proved charge and impose appropriate punishment on the delinquents. If one charged officer cites another charged officer as a witness, in proof of his defence, the enquiry need not per se be split up even when the charged officers would like to claim an independent enquiry in that behalf. If that procedure is adopted, normally all the delinquents would be prone to seek split up of proceedings in their/his bid to delay the proceedings and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary enquiry should not be equated as a prosecution for an offence in a criminal Court where the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of co-accused does not arise. Therefore, each of the delinquents would be entitled to summon the other person and examine on his behalf as a defence witness in the enquiry or summon to cross-examine any other delinquent officer if he finds him to be hostile and have his version placed on record for consideration by the disciplinary authority. Under these circumstances, the need to split up the cases is obviously redundant, time consuming and dilatory. It should not be encouraged. Accordingly, we do not find any illegality in the action taken". ( 16 ) BALBIR Chand (supra) was, therefore, a decision, which was rendered in the peculiar fact situation obtaining therein particularly having regard to the extant circulars issued by the Food Corporation of India. Although it had not been specifically stated in the said decision, we are of the opinion that in a case similar to Balbir Chand (supra), even the doctrine of necessity can be invoked. As indicated hereinbefore, the Court shall not, while interpreting a statute, presume that a very valuable right of appeal would be taken away without any just cause. Although it had not been specifically stated in the said decision, we are of the opinion that in a case similar to Balbir Chand (supra), even the doctrine of necessity can be invoked. As indicated hereinbefore, the Court shall not, while interpreting a statute, presume that a very valuable right of appeal would be taken away without any just cause. The provisions of Regulation 7 (e) of the Regulations and the Note (1) appended to the Schedule, have been made only for the purpose of applying them in an exceptional case where the ordinary provisions cannot be taken recourse to. In other words, the doctrine of necessity or the principles akin thereto could be applied in such case. (See: Tata Cellular v. Union of India, AIR 1996 SC 11 ). ( 17 ) HAVING regard to the fact situation obtaining herein, we are of the opinion that the learned single Judge was correct in passing the impugned judgment. This writ appeal, being devoid of any merit, is dismissed with costs.