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2009 DIGILAW 559 (AP)

C. Madhausudan v. APSEB, Hyderabad

2009-08-17

B.PRAKASH RAO, P.V.SANJAY KUMAR

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P.V. SANJAY KUMAR, J :-The unsuccessful petitioner in WP No.6134 of 1998 assails the order dated 13.3.2003 passed by the learned Single Judge dismissing his writ petition. 2. In the writ petition, the appellant challenged the appellate order dated 25.7.1997 passed by the Chairman of the erstwhile AP State Electricity Board (presently APTRANSCO). By the said order, the appellate authority modified the punishment, imposed upon the appellant by the Member Secretary of the erstwhile Board, of removal from service to that of reduction by 30 ranks in the seniority list of Assistant Engineers (Electrical), treating the period from the date of removal to the date of reinstatement as 'dies non'., 3. The appellant was subjected to disciplinary proceedings with regard to his alleged misbehaviour with the officials of the Board and other lapses/irregularities committed by him. In the first instance, the Divisional Engineer (Technical) was appointed as the Enquiry Officer. After conducting the enquiry, the Enquiry Officer submitted his report dated 14.6.1989 to the Member Secretary, APSEB, holding that two out of the three charges were held proved. Thereupon, the Member Secretary appointed the Superintendent Engineer, Enquiries, as the second Enquiry Officer, under memo dated 5.5.1990, stating that the report of the enquiry submitted by the Divisional Engineer/Enquiry Officer was set aside and calling upon the newly appointed Enquiry Officer to frame appropriate and specific charges and conduct a detailed enquiry. It appears that the appellant participated in the second enquiry for sometime and thereafter abstained. The Enquiry Officer submitted his report dated 30.11.1991 holding that the single charge framed by him against the appellant was duly proved. Basing on the said enquiry report, show-cause notice was issued to the petitioner on 30.4.1992, duly enclosing a copy of the report, and calling upon him to submit his explanation. Thereafter, the order dated 26.8.1993 was passed by the Member Secretary/Disciplinary Authority inflicting the punishment of removal from service upon the appellant. 4. Aggrieved thereby, the appellant preferred a departmental appeal to the Chairman of the Board who, by his order dated 25.10.1997, reduced the punishment to that of reduction in seniority. 5. In the writ petition, the appellant challenged the disciplinary action taken against him on various grounds. 4. Aggrieved thereby, the appellant preferred a departmental appeal to the Chairman of the Board who, by his order dated 25.10.1997, reduced the punishment to that of reduction in seniority. 5. In the writ petition, the appellant challenged the disciplinary action taken against him on various grounds. The substantial ground of attack raised by him before the learned Judge, and reiterated before us in this appeal, is that it was not open to the disciplinary authority to drop the earlier enquiry proceedings and conduct a de novo enquiry. Alternatively, Sri Pratap Narayan Sanghi, learned Counsel for the appellant contended that the denial of an opportunity of hearing to his client before a decision was taken to institute a de novo enquiry offended the principles of natural justice and accordingly, 10 vitiated the entire disciplinary proceedings. He placed reliance on the AP State Electricity Board Employees Discipline and Appeal Regulations and more specifically, Regulation 10 dealing with the procedure for imposing penalties. Regulation 10(2)(a), to the extent that it is relevant, reads as hereunder: "In every case where it is proposed to impose on a member of a service any of the penalties specified in items (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 defence and to state whether he desires an oral enquiry or to be heard in person or both. He shall be required, within a reasonable time, to file a written statement of his defence and to state whether he desires an oral enquiry or to be heard in person or both. ....On receipt of the statement of defence 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 is decided upon by the Enquiry Officer or is directed by the competent authority ....." Regulation 10(4)(b) is also relevant and states: "(b) The competent authority may authorize any officer in Class I or Class II Service superior in rank to the employee to initiate departmental proceedings and to hold enquiry against the employee. On the findings of that officer, the competent authority may award punishment or otherwise give a decision." Basing on the above regulations, the learned Counsel submitted that it was not open to the disciplinary authority to casually discard the enquiry report submitted by the first Enquiry Officer and resort to a de novo enquiry without even disclosing the reasons therefor. Further, the said authority failed to take the appellant into confidence as to why such a step was required and the learned Counsel would strenuously contend that the same violates the principles of natural justice. The learned Counsel asserted that the disciplinary proceedings initiated against his client stood vitiated on these grounds. 6. Per contra, Sri P.R. Balarami Reddy, learned Counsel for the APTRANSCO, submitted that the counter affidavit filed in the writ petition disclosed the reason as to why a de novo enquiry was required. He drew our attention to the recitals in the counter-affidavit to the effect that the first Enquiry Officer had not examined important witnesses and had failed to date certain statements thereby rendering them insignificant. He further pointed out that the appellant had submitted to the jurisdiction of the second Enquiry Officer, but had chosen to abstain thereafter. The learned Counsel would contend that this action on the part of the appellant estopped him from thereafter challenging the de novo enquiry or complaining about lack of opportunity in the said enquiry. 7. He further pointed out that the appellant had submitted to the jurisdiction of the second Enquiry Officer, but had chosen to abstain thereafter. The learned Counsel would contend that this action on the part of the appellant estopped him from thereafter challenging the de novo enquiry or complaining about lack of opportunity in the said enquiry. 7. Refuting the above arguments, Sri Pratap Narayan Sanghi, learned Counsel for the appellant, in his reply, relied upon Regulation 10(2)(a) and contended that it was within the discretion of the Enquiry Officer to hold an oral enquiry and therefore non-examination of particular witnesses by the Enquiry Officer could not be made a ground for discarding the first enquiry report. He further contended that once the institution of the de novo enquiry was illegal in its very inception, the partial participation of his client in the said enquiry could not be held against him. Both the learned Counsel relied on various judgments to support their contentions. 8. The facts on record establish that the first enquiry held against the appellant resulted in the report dated 14.6.1989 wherein two out of the three charges levelled against him were held to be proved. The said report was set aside by the Member Secretary/Disciplinary Authority by the memo dated 5.5.1990, without disclosing any reasons therefor and appointing a new Enquiry Officer to enquire into the same allegations. It is no doubt true that the APTRANSCO came out with the purported reason for such action, in its counter-affidavit filed in the writ petition. However, no reasons whatsoever were disclosed in the memo dated 5.5.1990, which was actually communicated to the appellant. Trite to state, the order of the authority must stand on its own and cannot by supplemented or augmented by way of pleadings filed before this Court. (Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, 1978 SC 851). 9. Further, the issue for consideration is whether it was open to the disciplinary authority to baldly discard the first enquiry report and resort to a de novo enquiry at the hands of a new Enquiry Officer. The regulations applicable to the respondent Association do not indicate any such power being vested in the disciplinary authority. On the other hand, Rule 10(4)(b) states to the effect that on the findings of the Enquiry Officer, the disciplinary authority may award punishment or otherwise give a decision. The regulations applicable to the respondent Association do not indicate any such power being vested in the disciplinary authority. On the other hand, Rule 10(4)(b) states to the effect that on the findings of the Enquiry Officer, the disciplinary authority may award punishment or otherwise give a decision. The later portion of this regulation clearly indicates the possibility of the disciplinary authority disagreeing with the findings of the Enquiry Officer, but there is no scope for appointment of a new Enquiry Officer for a de novo enquiry. 10. It is relevant to note that a Constitution Bench of the Supreme Court observed in K.R.DEB v. The Collector of Central Excise, Shillong, AIR 1971 SC 1447 , that an Enquiry Officer may be asked by the Disciplinary Authority to record further evidence if there had been no proper enquiry because of some serious defect or because some important witnesses were not examined. The Court categorically held therein that the previous enquiry could not be set aside on the ground that the report of the Enquiry Officer did not appeal to the Disciplinary Authority. 11. In Union of India and others v. P. Thayagarajan, (1999) 1 SCC 733 , the Supreme Court reiterated the principle that the Disciplinary Authority could order a de novo enquiry when it found that the enquiry officer had not followed the correct procedure in taking the evidence of witnesses and not merely because the Enquiry Officer's report did not appeal to the said authority. 12. In Kanailal Bera v. Union of India and others, (2007) 11 SCC 517 , the Supreme Court observed: "6. ..... Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry." 13. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry." 13. It is no doubt true that in Thayagarajan's case (supra), the Supreme Court held that it was open to the disciplinary authority to order a de novo enquiry when it found that the Enquiry Officer had not followed the correct procedure in taking the evidence of witnesses. But even in that case, the relevant rule enabled the disciplinary authority to remit the matter to the same Enquiry Officer for further enquiry. In the present case, the disciplinary authority altogether discarded the first enquiry and instituted a fresh enquiry from scratch by a newly appointed Enquiry Officer. Such an action was clearly not contemplated by the regulations and is in utter violation of the law laid down by the Apex Court. 14. It is also to be noticed that the Member Secretary/Disciplinary Authority did not even think it fit to disclose the reason for his action, as is evident from the terse and cryptic recital in the memo dated 5.5.1990 with regard to the setting aside of the first enquiry report. Such an unreasoned action on the part of the disciplinary authority is clearly unsustainable. 15. In Union of India v. M.L. Capoor and others, AIR 1974 SC 87 , the Supreme Court observed: "28. .... Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to' be manifestly just and reasonable. . ..." 16. Again in S.N Mukherjee v. Union of India. AIR 1990 SC 1984 , a Constitution Bench of the Supreme Court had occasion to observe: "35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. . ..." 16. Again in S.N Mukherjee v. Union of India. AIR 1990 SC 1984 , a Constitution Bench of the Supreme Court had occasion to observe: "35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions - making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. ...." 17. 'Reasons' are the milestones which chart the journey of the 'decision-maker' in reaching his destination. Absence of reasons thus leaves the decision-making process without a rudder and open to arbitrariness. Therefore, the action of the Member Secretary/Disciplinary Authority in setting aside the first enquiry report without even disclosing the reasons therefor is clearly unsustainable in law. Though the appellant raised this aspect in his appeal before the appellate authority/Chairman of the erstwhile Board, the same was not considered in a proper perspective. 18. In view of our finding that the action of the disciplinary authority in instituting a de novo enquiry afresh by appointing a new Enquiry Officer, without disclosing the reasons as to why the report of the first Enquiry Officer was set aside, is legally invalid, we do not propose to go into other aspect raised by the appellant with regard to the necessity of providing him an opportunity of hearing before such a decision was taken. The matter is amenable to disposal on our finding on the first aspect and the other issue afore stated is left open for resolution in an appropriate case. 19. The matter is amenable to disposal on our finding on the first aspect and the other issue afore stated is left open for resolution in an appropriate case. 19. The disciplinary action taken against the appellant, viz., the order of removal from service passed by the disciplinary authority on 26.8.1993, modified in appeal by the Chairman of the erstwhile A.P. State Electricity Board by order dated 25.7.1997, are accordingly set aside. 20. The writ appeal is allowed. In the circumstances of the case, there shall be no order as to costs.