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2008 DIGILAW 593 (AP)

M. Somaiah v. APSRTC, Hyderabad

2008-07-31

L.NARASIMHA REDDY

body2008
JUDGMENT The petitioner was employed as a Driver in Suryapet Depot of APSRTC. The Depot Manager, the 2nd respondent herein, issued a charge-sheet dated 27.11.2006, alleging that the petitioner contested in the election for the office of Sarpanch of Ambajipet Grampanchayat, held on 2.8.2006, without obtaining prior permission of the competent authority, in terms of Regulation 23(3) of APSRTC (Conduct) Regulations 1963. A further allegation was made to the effect that the petitioner did not inform the depot authorities about his contesting in the election. The petitioner submitted his explanation on 24.3.2008, admitting the factum of his contesting the elections. He, however, stated that in view of the clarification issued by the State Election Commission, he found that it is not necessary to obtain prior permission, or to resign his job. The 2nd respondent passed an order dated 1.7.2008, dismissing the petitioner from service. The petitioner challenges the order of dismissal, mainly on the ground that it was not preceded by domestic enquiry, or the show-cause notice, contemplated under Clause (13) of Regulation 12 of the APSRTC Employees (Classification, Control and Appeal) Regulations 1967, (for short ''the Regulations''). 2. Sri V. Narasimha Goud, learned Counsel for the petitioner, submits that the State Election Commission had issued clarification, just before the elections, to the effect that the employees of the Government Undertakings can also contest in the elections. He submits that even assuming that the petitioner has committed any acts of misconduct, it was obligatory on the part of the respondents, to conduct domestic enquiry and to issue a second show-cause notice, in case, the enquiry officer held the charges as proved. Learned Counsel submits that the impugned order is passed, in clear violation of the service regulations. 3. Smt. B. G. Umadevi, learned Standing Counsel for the respondents, on the other hand, submits that once the petitioner admitted that he contested in the elections, without resigning his job, there was neither any necessity to conduct domestic enquiry, nor to issue a second show-cause notice. She submits that the occasion to conduct departmental enquiry arises, only when an employee denies or disputes the charge framed against him. 4. The petitioner does not dispute that he contested in the elections for the office of Sarpanch of Ambaripet Grampanchayat, held on 2.8.2006. She submits that the occasion to conduct departmental enquiry arises, only when an employee denies or disputes the charge framed against him. 4. The petitioner does not dispute that he contested in the elections for the office of Sarpanch of Ambaripet Grampanchayat, held on 2.8.2006. He appears to have reeled under the impression that the necessity to resign the post held by him, would arise, if only he is elected. On finding that he was not elected as Sarpanch, the petitioner did not submit his resignation. The 2nd respondent issued a show-cause notice, framing the following charges: "(I) For having contested in Sarpanch elections as a candidate of Sarpanch of Ambaripeta Village (in reservation quota) which was held on 2.8.2006 without obtaining prior permission from concerned authority, APSRTC, Swyapet, which comes under misconduct on your part in terms of Reg.23(3) of APSRTC Employees (Conduct) Reg. 1963. (2) For having failed to inform the fact to depot authorities contesting in Gram Panchayat elections as Sarpanch from Ambaripet Village which constitutes misconduct on your part in terms of Reg.28(xvii) and (xxii) of APSRTC Employees (Conduct) Reg. 1963." Placing reliance upon the clarifications issued by the State Election Commission, from time to time, the petitioner submitted his explanation. The 2nd respondent did not appoint any enquiry officer, and passed the impugned order, on a consideration of the charge-sheet and the explanation offered by the petitioner. 5. The regulations prescribe a detailed procedure to be followed, before a major or minor penalty is imposed upon an employee of the Corporation. Regulation 12 prescribes the procedure to be followed, before the major penalties, such as, reduction in pay scale, removal from service and dismissal from service are inflicted. Holding of domestic enquiry becomes necessary. It may be true that the necessity to appoint enquiry officer, or to conduct domestic enquiry would arise, only when the employee denies the charges, and conversely there would not be any necessity to appoint such an officer, if the employee admits the charges. All the same, an important step in the disciplinary proceedings, against an employee, visa appointing of enquiry officer, cannot be dispensed with, on the basis of presumptions. The enquiry can be dispensed with, only when the admission of the charge by an employee is unequivocal and clear. All the same, an important step in the disciplinary proceedings, against an employee, visa appointing of enquiry officer, cannot be dispensed with, on the basis of presumptions. The enquiry can be dispensed with, only when the admission of the charge by an employee is unequivocal and clear. A conditional admission or a justification pleaded on the part of the employee would keep the necessity to appoint the enquiry officer, intact. In the instant case, the petitioner no doubt admitted that he contested in the election, but has justified the same, by placing reliance upon some material issued by the Election Commission. Therefore, the 2nd respondent is under obligation to examine the same, fairly and objectively, by conducting an enquiry by himself, or by appointing an enquiry officer. Such a step was not taken. 6. Regulation 12(13) places the obligation on the Corporation, to issue a show-cause notice to the employee, indicating the proposed punishments it reads as under: "The authority competent to impose the penalty shall then determine what penalty, if any, should be imposed on the employee, and pass appropriate orders on the case. If the penalty proposed to be imposed is one of the penalties specified in terms (vii) (viii) and (ix) of Regulation 8, he should be given an opportunity to show-cause why the said penalty should not be imposed." The requirement under the above said provision is absolute. Even where the circumstances, that warrant dispensing with the domestic enquiry exist, the disciplinary authority cannot skip the step contemplated under this regulation. 7. Issuance of a notice, under clause (13) of Regulation 12, or any similar provision, has a definite and clear object to serve. The service regulations themselves define misconducts of varying in degrees. Similarly, the punishment that can be imposed on an employee, on disciplinary grounds, are also listed in the relevant regulation. It cannot be said with any mathematical precision that a particular act of misconduct would lead to the punishment of a given category. Even where two individuals are accused of the same act of misconduct, the nature of P1U1ishment would depend not only upon the circumstances, under which the misconduct had emerged, but also upon the extenuating or aggravating circumstances, that can be discerned from the past service of the concerned employee. The notice contemplated under Regulation 12(13) provides an avenue or occasion for the employer, to undertake such an exercise. The notice contemplated under Regulation 12(13) provides an avenue or occasion for the employer, to undertake such an exercise. While there can be circumstances that can justify the failure to conduct domestic enquiry, there is no escape for a disciplinary authority from applying the Regulation 12(13). Admittedly, in the instant case, neither the domestic enquiry was conducted, nor any I notice under Regulation 12(13) was issued. 8. Therefore, the writ petition is allowed, and the impugned order is set aside. This, however, would not preclude the respondents, from taking necessary action, in accordance with law. There shall be no order as to costs.