JUDGMENT : This writ petition is filed by a Vigilance Inspector of Visakhapatnam Port Trust mounting a challenge to the punishment of removal from service which was inflicted on him by the Deputy Chairman of the Visakhapatnam Port Trust by his orders dated 24.07.2012. The writ petitioner appears to have initially joined the service of the Visakhapatnam Dock Labour Board in 1982 as a clerk and subsequently was promoted as a Junior Assistant and further posted as a Vigilance Inspector by way of selection. The Visakhapatnam Dock Labour Board has been merged with the Visakhapatnam Port Trust in the year 2008. The work carried out by the Visakhapatnam Dock Labour Board earlier is now handled by the Cargo Handling Division of the Visakhapatnam Port Trust, headed by a Traffic Manager. The case of the petitioner is that, his services have come to be appreciated for his integrity and sincerity and in fact, as recently as on 26.01.2009 he was awarded a merit certificate in recognition of his services to the Visakhapatnam Port Trust. One Smt. E. Sanyasamma was working as a sanitary kallasi in the Cargo Handling Division of the Visakhapatnam Port Trust. She applied for voluntary retirement on 05.06.2010 under the ‘Special Voluntary Retirement Scheme’. Her application was processed in the Cargo Handling Division and it was forwarded to the Vigilance Department for vigilance clearance. The application was marked by the Assistant Vigilance Officer to the petitioner on 17.06.2010. It was endorsed on the application that it is an urgent case to be processed. The petitioner verified as to whether any disciplinary proceedings are pending or contemplated against Smt. E. Sanyasamma. Upon verification of the concerned files, the petitioner prepared a note indicating that there are no cases pending against Smt. E. Sanyasamma and no action is also contemplated against her. The note prepared by the petitioner on 17.06.2010 was approved by the Chief Vigilance Officer and hence vigilance clearance was accorded. The vigilance clearance letter was directly handed over to the Junior Assistant of the Cargo Handling Division on 17.06.2010 and thereafter, the matter was placed for consideration of the Docks Manager. The Docks Manager in-turn passed an office order on 17.06.2010 accepting the offer for voluntary retirement of two candidates namely Sri R. Appa Rao and Smt. E. Sanyasamma. The vigilance clearance letter was directly handed over to the Junior Assistant of the Cargo Handling Division on 17.06.2010 and thereafter, the matter was placed for consideration of the Docks Manager. The Docks Manager in-turn passed an office order on 17.06.2010 accepting the offer for voluntary retirement of two candidates namely Sri R. Appa Rao and Smt. E. Sanyasamma. The offer of Smt. E. Sanyasamma was accepted with effect from 17.06.2010, but however, it has come to the notice of the respondents that Smt. E. Sanyasamma expired the previous evening itself and hence the acceptance order of her application for voluntary retirement has been immediately cancelled. Suspecting that the petitioner has suppressed the fact of her illness and recommended the case for vigilance clearance for special voluntary retirement scheme benefits, the petitioner has been subjected to disciplinary proceedings. A charge memorandum dated 08.10.2010 has been drawn against the petitioner. The charge framed against the petitioner reads as under: “ANNEXURE-I VISAKHAPATNAM PORT TRUST GENERAL ADMINSTRATION DEPARTMENT (PERSONNEL DIVISION) ANNEXURE-I: to the standard Memorandum of Charge Sheet under Regulation 10 of the Visakhapatnam Port Employees’ (Classification, Control & Appeal) Regulations, 1968. Statement of Articles of charges framed against Sri E. Subrahmanyam, Vigilance Inspector, CHD, Traffic Department, Visakhapatnam Port Trust. ARTICLE OF CHARGE That Sri E. Subrahmanyam, while functioning as Vigilance Inspector, CHD, Traffic Department in Vigilance Department, VPT, Smt. E. Sanyasamma, Sanitari Khallasi, Emp No.606339, CHD, was posted to work at his office as Khallasi and Sri E. Subrahmanyam, Vigilance Inspector, CHD used to recommend her leaves whenever she applies. Smt. E. Sanyasamma had applied for SVRS on 05-06-2010 and in the meantime, due to prolonged sickness, Smt. E. Sanyasamma expired on 16-06-2010. Sri E. Subrahmanyam also knew the fact that she is ill and the case is not fit for Special VRS, where the financial benefits are more. Sri E. Subrahmanyam suppressed the facts of her illness and recommended the case for Vigilance Clearance to undergo Special Voluntary Retirement Scheme. He also asked Sri K. Subbara, J.A. of Personnel section of CHD on 17.06.10 to come to Vigilance department to collect the Vigilance clearance letter issued in respect of Smt. E. Sanyasamma, Sanitary khallasi. Despite knowing the facts, Sri E. Subrahmanyam, Vigilance Inspector, CHD has processed the case for issuance of Vigilance clearance in respect of Smt. E. Sanyasamma, Sanitary Khallasi, Emp. No.606339, CHD, Traffic Department for Special Voluntary Retirement Scheme. Despite knowing the facts, Sri E. Subrahmanyam, Vigilance Inspector, CHD has processed the case for issuance of Vigilance clearance in respect of Smt. E. Sanyasamma, Sanitary Khallasi, Emp. No.606339, CHD, Traffic Department for Special Voluntary Retirement Scheme. Being a responsible employee looking after the Vigilance works of CHD, Sri E. Subrahmanyam should have verified the facts and health conditions of the above SVRS applicant before processing the Vigilance clearance. But he did not do so and processed for approval in grnaitng SVRS to Smt. E. Sanyasamma. By the above acts, Sri E. Subrahmanyam, Vigilance Inspector, CHD of Traffic Department has exhibited gross misconduct, unbecoming of a public servant and as much as, he failed to maintain absolute integrity and devotion to duty. Thus, he violated Regulation 3(1) and Regulation 3 (3-A) of VPE Conduct Regulation, 1964. xxxxx Sd/- (G.V.L. SATYA KUMAR) DY. CHAIRMAN VISAKHAPATNAM PORT TRUST & COMPETENT AUTHORITY” In Annexure-II of the charge memorandum, the statement of imputation of misconduct has been set out. It is alleged that, Smt. E. Sanyasamma is a sick person and she was not attending to her duties due to her ill-health and that the petitioner has recommended her case as if she is healthy and attending to her duties and thus he has suppressed the facts and processed the case for vigilance clearance. It is also alleged that the case of Smt. E. Sanyasamma is not fit to secure special voluntary retirement scheme benefits which are financially better than those offered for medical invalidation. It is alleged that the petitioner should have verified the facts and health condition of Smt. E. Sanyasamma before processing the vigilance clearance, but he did not do so. It is also alleged against the petitioner that he has concealed the fact that he is maintaining a separate room at the erstwhile Visakhapatnam Dock Labour Board building while having a room at Vigilance Department. It is also alleged against the petitioner that he has concealed the fact that he is maintaining imprest amount which he is not eligible to do so. It was also alleged against the petitioner that he was not signing the attendance register everyday and not submitting the leaves through chief vigilance officer. Hence, it is alleged that the acts of the petitioner tantamount to failure to be a vigilance person. It was also alleged against the petitioner that he was not signing the attendance register everyday and not submitting the leaves through chief vigilance officer. Hence, it is alleged that the acts of the petitioner tantamount to failure to be a vigilance person. Therefore, the petitioner has exhibited gross misconduct unbecoming of a public servant and thus he failed to maintain absolute integrity and devotion to duty. Annexure-III of the memorandum of the charge contained 12 documents by which the article of charge is proposed to be sustained. Annexure-IV set out 7 witnesses by whom the article of charge framed by the petitioner is proposed to be sustained. The petitioner, after perusing the documents through which the charge is sought to be sustained against him, has filed a detailed explanation on 20.11.2010. It is asserted by the petitioner that, his duty as a Vigilance Inspector is to verify whether there are any vigilance cases pending or contemplated against the employee in whose case the vigilance clearance is sought for. He, therefore, pointed out that it is no part of his duty to verify the health condition of the employee, in whose case the vigilance reference is made. In respect of all other imputations, the petitioner has stoutly disputed the veracity of those allegations. Not satisfied with the explanation offered by the petitioner, an Enquiry Officer was appointed, who after holding an enquiry has drawn his report holding the charge as proved. The copy of the enquiry officer’s report was made available to the petitioner on 02.05.2012 to enable him to make his submissions thereon within fifteen days. Accordingly, the petitioner has drawn his detailed representation and submitted the same on 18.05.2012. Taking into account and consideration the representation submitted by the petitioner against the finding recorded by the Enquiry Officer, the Deputy Chairman of the Visakhapatnam Port Trust finalized the proceedings on 24.07.2012 imposing on the petitioner the punishment of removal from service. It is this order passed by the Deputy Chairman of the Visakhapatnam Port Trust, which is called in question in this writ petition. The Traffic Manager of the Cargo Handling Division of the Visakhapatnam Port Trust filed a detailed counter affidavit in the matter. It is this order passed by the Deputy Chairman of the Visakhapatnam Port Trust, which is called in question in this writ petition. The Traffic Manager of the Cargo Handling Division of the Visakhapatnam Port Trust filed a detailed counter affidavit in the matter. It is pointed out in the counter affidavit that the Docks Manager of the cargo handling division has addressed a letter on 18.06.2010 to the Medical Superintendent, Care Hospital, Visakhapatnam, calling for the information relating to the death of Smt. E. Sanyasamma and in response thereto, the Medical Superintendent, Care Hospital sent up a letter on 19.06.2010 informing that Smt. E. Sanyasamma was brought to the Care Hospital on 16.06.2010 at about 05.30 pm and the Casualty Doctor after examining her has recorded that she was brought dead. The theory propounded in the counter affidavit is that, Smt. E. Sanyasamma was working as a sanitary kallasi under the control of the writ petitioner and thus, inspite of his knowing the full details and facts of the ill-health of Smt. E. Sanyasamma, the petitioner has recommended her case for vigilance clearance and hence he is guilty of suppressing the true facts from being considered by the competent authority. It was also further set out in the counter affidavit that, though there is no bar for granting special voluntary scheme benefit to sick people, however it is the bounden duty of the petitioner to perform a cost benefit analysis of each individual case and then put up a note to the head of the department for his approval/rejection of the case. Heard Sri Vedula Srinivas, learned counsel for the petitioner and Sri P. Sriram, learned standing counsel for the Visakhapatnam Port Trust, on behalf of the respondents. It is contended by Sri Vedula Srinivas that Cargo Handling Division is headed by a Traffic Manager and hence in respect of Class-III employees, the Traffic Manager is the appointing authority as well as the Disciplinary Authority, whereas the Deputy Chairman was the appellate authority. The Deputy Chairman in the instant case has exercised the power of disciplinary control and hence for that reason, the impugned order is vitiated. This apart, it was contended by Sri Vedula Srinivas that the charge laid against the petitioner is that, he has suppressed the information relating to the health condition of Smt. E. Sanyasamma. The Deputy Chairman in the instant case has exercised the power of disciplinary control and hence for that reason, the impugned order is vitiated. This apart, it was contended by Sri Vedula Srinivas that the charge laid against the petitioner is that, he has suppressed the information relating to the health condition of Smt. E. Sanyasamma. It is the specific case of the petitioner that ascertaining the health condition of an applicant for voluntary retirement is no part of the duty of a Vigilance Inspector who is only expected to make information available with regard to vigilance perspectives but not about whether the applicant deserves sanction of the prayer in his application or not. It is further contended that there is no misconduct attributable to the petitioner inasmuch as he has not breached the conduct rules framed by the Visakhapatnam Port Trust in any manner and a grossly disproportionate punishment has been imposed on the petitioner by the Deputy Chairman. Above all, Sri Vedula Srinivas would contend that a harsh punishment of removal from service which is not warranted at all in the facts and circumstances of the case has been imposed on the petitioner and hence the impugned order deserves to be set aside. Per contra, Sri P. Sriram would contend that, against the imposition of penalty, an appeal would lie in terms of Regulation 21 and without availing such an appellate remedy, the petitioner has instituted this writ petition and hence only on this count, the writ petition should be dismissed. It was also contended by Sri P. Sriram that the petitioner was working as a Vigilance Inspector in the Vigilance Department of the organization, therefore, he ought to have brought out all the facts within his knowledge faithfully so that, a proper decision can be taken by the competent authority. All due to lack of honesty and devotion to duty on the part of the writ petitioner, an embarrassing situation has been created whereby the offer of voluntary retirement of a dead person came to be accepted by the competent authority. But, for the timely detection, the Visakhapatnam Port Trust would have been exposed to a great financial loss on account of payment of the financial benefits to Smt. E. Sanyasamma or her dependents/ representatives. Hence, the impugned order does not deserve any interference. But, for the timely detection, the Visakhapatnam Port Trust would have been exposed to a great financial loss on account of payment of the financial benefits to Smt. E. Sanyasamma or her dependents/ representatives. Hence, the impugned order does not deserve any interference. Fortunately, on the factual aspects of the matter, there is no divergence of opinion between the parties. The petitioner was working as a Vigilance Inspector and the application dated 05.06.2010 of Smt. E. Sanyasamma, a sanitary kallasi who sought for voluntary retirement has been forwarded by the Docks Manager of the cargo handling division for vigilance clearance on 11.06.2010. In the said letter, the docks manager has clearly noted as under: “There are no departmental disciplinary proceedings pending or contemplated against her as on date” The matter was referred to the petitioner marking it as ‘Urgent’. The petitioner has prepared a note on 17.06.2010 for issuing the vigilance clearance as there are no departmental proceedings pending or contemplated against the said employee. The file was approved thereafter by the Assistant Vigilance Officer and also the Chief Vigilance Officer. Accordingly, an office order was issued by the Vigilance Department on 17.06.2010 to the Docks Manager setting out that there are no vigilance cases pending/contemplated against Sri E. Sanyasamma, Sanitary Kallasi and hence, vigilance clearance is issued to process the request of the individual for voluntary retirement. A dispatch entry was made of this communication on 17.06.2010 and it was in fact handed over to the Junior Assistant personally. It would be appropriate to notice that an office order was then issued by the Docks Manager on 17.06.2010 accepting the request of two employees to retire on voluntary basis from services of the Cargo Handling Division, Traffic Department, Visakhapatnam Port Trust, under the special voluntary scheme with effect from the afternoon of the dates mentioned against their names. Insofar as Smt. E. Sanyasamma is concerned, the date of her retirement was notified as 17.06.2010 afternoon. It is appropriate, at this stage, to notice the features of the Special Voluntary Scheme announced through circular dated 13.03.2010, which is placed at page 14 of the writ petition paper book. Insofar as Smt. E. Sanyasamma is concerned, the date of her retirement was notified as 17.06.2010 afternoon. It is appropriate, at this stage, to notice the features of the Special Voluntary Scheme announced through circular dated 13.03.2010, which is placed at page 14 of the writ petition paper book. It was set out in that circular dated 13.03.2010 that the Board of Trustees of Visakhapatnam Port Trust through their resolution No.129/2009-10, have resolved to extend the Special Voluntary Retirement Scheme to the officers and employees of Cargo Handling Division, subject to certain terms and conditions specified in the said circular. It is set out therein that, an officer/employee of the cargo handling division who has completed 10 years of service or completed 40 years of age may seek special voluntary retirement by a written request. The Port Trust will have the right to grant the special voluntary retirement, implying that it can also be rejected. The terminal benefits payable have all been set out in paragraph 3 of the said circular which are all otherwise normally payable to any retiring employee. In paragraph 4 of the circular, in addition to the benefits set out in paragraph 3, an employee whose request for special voluntary retirement is accepted, would also be entitled to ex-gratia payment to one and half months (45 days) emoluments for each completed year of service or the discounted value of the emoluments (at 12% rate of discount) that would have become payable for the balance months of service left, whichever is less. Most significantly, in paragraph 6 of the said circular dated 13.03.2010, it was set out that, all posts falling vacant as a result of special voluntary scheme shall be abolished and shall not be eligible for revival in any case. In paragraph 7, it has been set out as under: “7. Special Voluntary Scheme will be given to those persons who have been identified as “surplus” based on a study conducted by a CHD. Special voluntary retirement will not be given to those persons who are doing essential functions in CHD. In paragraph 7, it has been set out as under: “7. Special Voluntary Scheme will be given to those persons who have been identified as “surplus” based on a study conducted by a CHD. Special voluntary retirement will not be given to those persons who are doing essential functions in CHD. In this connection, the CHD has to make an assessment on surplus manpower taking into account the present and future operational requirements.” (Emphasis is brought out) It is, therefore, manifestly clear that the special voluntary retirement scheme has been introduced by the Visakhapatnam Port Trust for purposes of weeding out exclusively the surplus manpower of the Cargo Handling Division and it will not be applicable to any of the persons who are doing essential functions in the said division. It is, thus, obvious that the post of Sanitary Kallasi held by Smt. E Sanyasamma has come to be recognized as a surplus post and hence her application dated 05.06.2010 for retirement has been processed. As is evident from the charge-sheet laid against the petitioner on 08.10.2010, it is alleged against him that the petitioner knew the fact about the sickness of Smt. E. Sanyasamma and that her case is not fit for Special Voluntary Retirement Scheme benefits and inspite of the same, duly suppressing the above facts, the petitioner has recommended her case for vigilance clearance. The failure on the part of the petitioner to verify the facts properly and the health condition of the applicant in particular before processing the vigilance clearance was the main limb of the charge laid against the petitioner. Making a liberal departure from the charge laid in Annexure-I, several imputations have been made against the petitioner in Annexure-II by setting out that, the petitioner has concealed the fact that he is maintaining a separate room at the erstwhile Visakhapatnam Dock Labour Board building, while having a room at the vigilance department and that he was maintaining imprest amount though he is not eligible to maintain the same and that he was not signing the attendance register everyday and that he was not submitting the leave applications through the chief vigilance officer. These later imputations, I am afraid, have no connection whatsoever to the main charge laid against the petitioner. The Enquiry Officer, as was noticed supra, has drawn his report holding the petitioner guilty. These later imputations, I am afraid, have no connection whatsoever to the main charge laid against the petitioner. The Enquiry Officer, as was noticed supra, has drawn his report holding the petitioner guilty. The defense Exs.1 to 10 have been taken on record by the enquiry officer. But most significantly, there was no assessment-not even a faint whisper - about the impact of the said documents is contained in the findings in the enquiry report. The enquiry officer had concluded his 7 page report in the following manner: “CONCLUSION: As per the above deposition of oral and documentary evidence, the following points are made clear: (1) There is no bar in giving SVRS to an employee on grounds of ill health as confirmed by the witnesses. (2) Smt. E. Sanyasamma has submitted an application for SVRS on 05-06-2010. (3) The proposal for vigilance clearance to Smt. E. Sanyasamma was sent from DM/CHD on 11-06-2010, but the same was received in Vigilance Dept. on 15.06.2010 (i.e., after 3 days) (DE-I). (Meanwhile, the party expired on 16.06.2010 and brought dead to Care Hospital at 05.30, but her body was kept in mortuary as per the request of her relatives who have taken on next day (17-06-2010) at 03.00 PM, (as per Medical Supdt.s letter dt.18.06.2010) (SE-2). (4) The above letter (DE-I) was seen by CVO, AVO on 17.06.2010 and marked to V.I. (C.O/JL) on same day. The V.I (C.O)/JL) processed the Office Note on the same day and vigilance clearance was also issued on the same day i.e., on 17-06-2010). (5) Vigilance clearance was processed, typed and dispatched in a single day (on 17.06.2010) and the SVRS order was also issued on the same day (17-06-2010). (6) The speed at which the vigilance clearance was issued and SVRS order was issued on the same day, (while the party’s body was kept in mortuary) gives rise tosuspicion generally. (7) Normally, the Vigilance Department will dispatch the vigilance clearance by dak. But, in this case, the vigilance clearance was sent to CHD by the C.O on the same day personally. The CO has asked SW-5 to collect letter from Vigilance Department at 12 noon on 17-06-2010 (as per the statement and deposition of SW-5). The SW- 5 has collected the vigilance clearance letter from Vigilance Dept., without the knowledge of PO/CHD. But, in this case, the vigilance clearance was sent to CHD by the C.O on the same day personally. The CO has asked SW-5 to collect letter from Vigilance Department at 12 noon on 17-06-2010 (as per the statement and deposition of SW-5). The SW- 5 has collected the vigilance clearance letter from Vigilance Dept., without the knowledge of PO/CHD. When the SW-5 collected the letter from CVO and handed over to P.O/CHD, the P.O/CHD refused to accept the letter and advised to handover to DM/CHD. The DM has accepted the letter and marked to P.O. Thereafter, SVRS order was issued. Therefore, it is established that the C.O has instructed the JA (SW-5) to collect the vigilance clearance letter personally. (8) As per the deposition of SW-8, (who is having full working knowledge of Vigilance Dept.), the C.O has not projected all the facts in the Office note and had he projected the facts clearly, the CVO would have conducted further inquiry/obtained latest information and this is the clear lapse of C.O, who is working in Vigilance Department. As per SW-8, the C.O is having first hand knowledge of ill-health of Smt. E. Sanyasamma, (since she is directly working under him), and she was completely bedridden and her family members used to brought her to office one or two days to safeguard her job, and when the C.O was fully aware of these facts, he should have verified her health condition/brought the facts to the knowledge of CVO, since he is working in a highly reputed Vigilance Department. Added to that, he was instrumental in processing the vigilance clearance and dispatch of the same in a single day by calling the concerned J.A. from CHD etc., which clearly point the finger towards him. (9) The C.O/Defence, on the other hand, had not produced even a single witness to substantiate their stand or to counter prosecution evidence, even though opportunity was given to them. (9) The C.O/Defence, on the other hand, had not produced even a single witness to substantiate their stand or to counter prosecution evidence, even though opportunity was given to them. (10) Therefore, the charge framed that being a responsible employee looking after the vigilance works of CHD, Sri E. Subramanyam should have verified the facts and health condition before processing the Vigilance clearance, but he did not do so and processed for approval in granting SVRS to Smt. E. Sanyasamma, and concealing the fact of maintaining a separate room in CHD/maintaining imprest account in CHD, not signing in the attendance registers everyday and not submitting leaves through CVO, clearly established as per the evidence of SW-1, 2, 3, 4, 5, 6, 7 & 8. (11) Therefore, considering all the above oral and documentary evidence adduced before the enquiry, the charge framed against the C.O is PROVED. sd/- (U.R.M. RAJU) P.O (Mech.) & Inquiry Officer The first three pages of his report were a reproduction of the contents of the charge memorandum dated 08.10.2010. Paragraph 4 of his report which is titled as an analysis of the evidence, begins towards the end of page 3 containing four sentences there. It reflected, the gist of deposition of each of the 8 witnesses examined on behalf of the Visakhapatnam Port Trust (called as ‘State Witness’) in the next 2 ½ pages and thereafter the conclusion, quoted above has been recorded. Most curiously, the very first conclusion drawn by the enquiring officer is that, there is no bar in according special voluntary retirement scheme benefit to any employee on grounds of ill-health, but yet, the petitioner has been held guilty of the charge framed against him. In conclusion, it was set out that, the speed at which the vigilance clearance was issued and the special voluntary retirement scheme order was issued on the same day gives rise to suspicion generally. The enquiring officer, obviously, is also finding fault with the competent authority, who has accepted the offer of Smt. E. Sanyasamma and granted her the voluntary retirement, apart from finding the petitioner guilty. In his anxiety, the enquiring officer has also found the petitioner guilty of the rest of the imputations made against him as well. The enquiring officer, obviously, is also finding fault with the competent authority, who has accepted the offer of Smt. E. Sanyasamma and granted her the voluntary retirement, apart from finding the petitioner guilty. In his anxiety, the enquiring officer has also found the petitioner guilty of the rest of the imputations made against him as well. Mercifully, in the instant case, the Deputy Chairman has not accorded his approval, to the otherwise unsustainable findings recorded by the enquiring officer with regard to all other imputations made against the petitioner and advisedly confined the entire matter for consideration only with regard to the allegation leveled against him in according the vigilance clearance to the application of Smt. E. Sanyasamma, sanitary kallasi. The Deputy Chairman has clearly recorded his opinion that there is no bar for sick people to be granted Special Voluntary Retirement Scheme benefits. But however, he found fault with the petitioner for having not carried out atleast perfunctorily a cost-benefit analysis in his vigilance report submitted to his Head of the Department. To say the least, the failure of the writ petitioner to indulge in cost-benefit analysis is not even forming part of the charge laid against him. Therefore, a new limb of charge has crept into the area of consideration as reflected in the impugned order than what has been contained actually in the charge memo dated 08.10.2010. Further, no witness examined spoke of the necessity or requirement of any such analysis to be carried out by a Vigilance Inspector. The impugned order is obviously not alive to the circular instructions issued on 13.03.2010 by the Visakhapatnam Port Trust offering special voluntary retirement scheme benefits for the surplus employees of the Cargo Handling Division (former Dock Labour Board), to be weeded out. It is apt to remember that this circular was issued based upon the decision taken by the Board of Trustees of the Visakhapatnam Port Trust. It is hard to believe that the Board of Trustees would have taken any such decision without properly weighing the cost-benefit analysis when they ordered for sanction of SVRS benefits exclusively for CHD of Visakhapatnam Port Trust. The only condition requisite contained therein is that the candidate should not be rendering essential services to the CHD. It is hard to believe that the Board of Trustees would have taken any such decision without properly weighing the cost-benefit analysis when they ordered for sanction of SVRS benefits exclusively for CHD of Visakhapatnam Port Trust. The only condition requisite contained therein is that the candidate should not be rendering essential services to the CHD. Therefore, there is no sanction or approval granted by the Board of Trustees to grant SVRS benefits only after cost-benefit analysis is done in each case. This apart, any such analysis is what is liable to be carried out by the ultimate decision making/VRS accepting authority, as he has a right of rejection of the offer. Such a decision cannot be carried out by a Vigilance Inspector. It is clearly beyond the scope of exercise of power by a Vigilance Inspector. The impugned order brings out, to the fore, as to the fundamental question as to whether while offering a vigilance clearance, the health and other aspects of an employee are also needed to be set out at all. No one has spoken about any such requirement or, is it a part of the duty of those who offer vigilance clearance. When once it is conceded, in principle, that there is no bar for a person who is not maintaining good health to seek voluntary retirement and for accepting any such offer as well, it passes my comprehension, as to how the lack of a statement with regard to the health condition of the applicant is in any manner material or relevant for the consideration of the request of the applicant for voluntary retirement. I am clearly of the view that the respondent has exceeded the authority vested in him in finding the petitioner guilty of the charge. It is a fundamental ingredient of the principles of natural justice that, no person shall be condemned without affording him an opportunity of hearing. As a part of adherence and compliance with this concept, a detailed procedure is followed before an employee is penalized. He is first informed, in very precise terms, the charge laid against him. If the explanation offered is not found satisfactory, then an enquiry is ordered to be conducted in his presence. The very purpose of this elaborate procedure evolved is to convey clearly the misconduct committed by the employee. He is first informed, in very precise terms, the charge laid against him. If the explanation offered is not found satisfactory, then an enquiry is ordered to be conducted in his presence. The very purpose of this elaborate procedure evolved is to convey clearly the misconduct committed by the employee. The charge-sheet, in the instant case, has proceeded on the premise that Smt. E. Sanyasamma, due to her illness is not fit for Special Voluntary Retirement Scheme benefit and hence the failure of the writ petitioner to bring out her fragile health condition in his vigilance report amounted to misconduct. The Disciplinary Authority ultimately had agreed with the view point canvassed by the petitioner that there is no bar even for a sick person to seek voluntary retirement and therefore the failure to bring out the health condition of the applicant has paled itself into insignificance. The charge-sheet never made any issue of the failure of the petitioner to make out cost-benefit analysis of the case. Therefore, while at the same time holding the petitioner not guilty of the main limb of the charge, he is now found fault for his failure to bring out the cost-benefit analysis in his vigilance report. He was never called upon to enter his defense in that respect. To this extent, therefore, the petitioner is condemned and found guilty of an allegation which never formed part of the charge-sheet. In other words, the petitioner is condemned behind his back and unheard too. The impugned order of punishment is clearly in violation of the principles of natural justice. Visakhapatnam Port Trust has been covered and regulated by the terms of the provisions contained in Section 1(3) of the Major Port Trusts Act, 1963 and powers have been conferred under Section 126 read with Section 28 of the said Act on the Central Government to frame regulations for exercising disciplinary control over the employees. As a part of that exercise, the Central Government has framed the Visakhapatnam Port Employees (Conduct) Regulations, 1964. Regulation 3 dealt with the general requirements of good conduct on the part of the employees. Regulation 3.1 would read as under: “Every employee shall, at all times, maintain absolute integrity and devotion to duty.” The content of the above regulation is general and absolute in terms. Regulation 3 dealt with the general requirements of good conduct on the part of the employees. Regulation 3.1 would read as under: “Every employee shall, at all times, maintain absolute integrity and devotion to duty.” The content of the above regulation is general and absolute in terms. Regulation 3 (3-A)(a) of these regulations would set out that, no employee shall act in a manner prejudicial to the interest of the port. These conditions spelt out by the conduct regulations are what have been alleged to have been breached by the writ petitioner as per the charge-sheet dated 08.10.2010. In this connection, it is appropriate to notice that the expression ‘misconduct’ is normally understood as a conduct arising out of an ill motive. Further, acts of carelessness, errors of judgment or innocent mistakes do not ordinarily constitute and take the colour of misconduct. Any unlawful behaviour in relation to the duties liable to be performed at office or such acts which are performed by a person who has no authority or right to perform the same are treated and considered as acts of misconduct. It will be apt to notice the following principle set out by the Supreme Court in Union of India Vs. J. Ahmed ( AIR 1979 SC 1022 ). “11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster 17 QB 536. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) [1959] 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur 61 Bom. L.R. 1596 and Satubha K. Vaghela v. Moosa Raza 10 G.L.R. 23. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) [1959] 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur 61 Bom. L.R. 1596 and Satubha K. Vaghela v. Moosa Raza 10 G.L.R. 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.” …………A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta(1963)ILLJ679SC: , wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd (1978) 19 G.L.R. 108. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. It will also be appropriate to notice that, Sri Vedula Srinivas has placed reliance upon the judgment rendered by the Supreme Court in A.L. Kalra Vs. Project and Equipment Corporation of India Limited ( AIR 1984 SC 1361 ), in support of his plea, which has examined as to whether a similarly worded conduct rule renders one guilty of misconduct or not. The Supreme Court has decided this question in paragraphs 21 and 22 as under: “21. And now to the facts. The gravemen of the two heads of charges is that the appellant is guilty of misconduct as prescribed in Rule 4(1)(i) and (iii). It reads as under: “4 (1) Every employee shall at all times: i) maintain absolute integrity; ii) ………………. iii) do nothing which is unbecoming of a public servant.” Rule 5 prescribes various misconducts for which action can be taken against an employee governed by the rules. 22. Rule 4 bears the heading ‘General’. Rule 5 bears the headings ‘misconduct’. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope R.4 into R.5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo laboratories (I.) Ltd. V. Presiding Officer, Labour Court, Meerut, (1984) 1 SCC 1 : ( AIR 1984 SC 505 ), where this Court held that ‘everything which is required to be prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly failing within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty’. Rule 4 styled as ‘General’ specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of R.5 which specifies misconduct. It would therefore appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that R.25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct. Sri P. Sriram, young and dynamic standing counsel for the Port Trust made a very valiant attempt to sustain the impugned order. Learned standing counsel would submit that, if a Vigilance Inspector does not bear in mind the interests of the port trust, while discharging his duties at all times, he cannot be permitted to urge that his conduct should still be absolved. Learned standing counsel would submit that, if a Vigilance Inspector does not bear in mind the interests of the port trust, while discharging his duties at all times, he cannot be permitted to urge that his conduct should still be absolved. According to the learned standing counsel, an avoidable embarrassment has been caused all due to the conduct of the writ petitioner. A dead person’s request for voluntary retirement has come to be accepted in the process. With the death of an employee, the contract of employment comes to an automatic end and therefore, the question of accepting any offer made by him while he was alive should not have arisen after the relationship of master and servant has ceased. If only the writ petitioner has brought out that aspect on record, which is known to him, this embarrassment could have been easily avoided. It is apt to remember that, when the application of Smt. E. Sanyasamma is handled, no one had the actual benefit of the information of her death. Information in that regard had percolated only due to the subsequent correspondence entered into with the Care Hospital by the Visakhapatnam Port Trust. As was already noticed, it is no part of a duty of the Vigilance Inspector to talk of the fragile health condition of the applicant of a Voluntary Retirement Scheme. If I may observe, if anyone had talked of any such feature about the applicant, it would be reflective of the petty mindedness on the part of such an employee. Taking any such factor into account or consideration would also be completely beyond the scope of the scheme sanctioned by the Board of Trustees itself. I am therefore, not able to accept he contention of Sri Sriram, that the petitioner has committed misconduct particularly in view of the legal regime noticed supra. Taking any such factor into account or consideration would also be completely beyond the scope of the scheme sanctioned by the Board of Trustees itself. I am therefore, not able to accept he contention of Sri Sriram, that the petitioner has committed misconduct particularly in view of the legal regime noticed supra. Learned standing counsel would then submit that, as per the Visakhapatnam Port Trust Employees’ (Classification, Control and Appeal) Regulations, 1968, which are framed by the Central Government in exercise of Section 28 read with Section 124 of the Major Port Trusts Act, 1963, an appeal would lie to the Appellate Authority against imposing penalties and the petitioner without availing the same, invoked the jurisdiction of this Court and therefore, this writ petition should be dismissed for the failure of the petitioner to avail the efficacious alternative appellate remedy and he should be relegated to avail such an appellate remedy. It is true that Regulation 20 of the Regulations would set out that, the authorities mentioned in the schedule to the Regulations shall be competent to entertain appeals in respect of the penalties indicated in the said schedule. Dealing with Class III, employees where a penalty is imposed by the Deputy Chairman, the Chairman is the competent authority to exercise appellate power. But however, it is important to note that Regulation 8 authorized, at the first place, the penalties to be imposed for good and sufficient reasons. When there is no misconduct committed by an employee, but yet, if a penalty is imposed on an employee, such an exercise of power clearly amounts to transgression of the authority vested in the disciplinary authority, for sheer want of good and sufficient reasons. As was already noticed supra, the petitioner was not found guilty of the main limb of the charge. Possibly he could not have been found guilty thereof, inasmuch as, there was no restriction or bar for considering the application of a person who is not maintaining good health as well for the benefit of Special Voluntary Retirement Scheme. But however, the petitioner is sought to be penalized for an allegation which was not forming part of the charge memo. Therefore, there was no good or sufficient reason available in the instant case for the Deputy Chairman to have exercised the disciplinary control and in particular, impose on the petitioner a much harsher major penalty. But however, the petitioner is sought to be penalized for an allegation which was not forming part of the charge memo. Therefore, there was no good or sufficient reason available in the instant case for the Deputy Chairman to have exercised the disciplinary control and in particular, impose on the petitioner a much harsher major penalty. It is true that, in Union of India vs. T.R. Verma ( AIR 1957 SC 882 ), the Supreme Court has culled out the following principle:- “It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, (A) “the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs.” (B) And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.” But, however, the legal principles in this regard had fallen for further consideration of a Constitution Bench in A.V. Venkateswaran, Collector of Customs Bombay vs. Ramchand Sobhraj Wadhwani ( AIR 1961 SC 1506 ). Speaking for the Court, Justice Rajagopalan Iyengar has set out the principle as under: “The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned; or (2) where the order prejudicial to the writ petitioner has been passed in violation of natural justice and could, therefore, be treated as void or non est…. We see considerable force in the argument of the learned Solicitor-General. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion” (emphasis supplied) Further, in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. ( AIR 1999 SC 22 ), the Supreme Court reiterated the principle in the following words:- “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmad v. Municipal Board, kairana, [1950]1SCR566 , laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner: [1954]25ITR167(SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner: [1954]25ITR167(SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 17. Specific and clear rule was laid down in State of U.P. v. Mohd. Nooh : [1958] 1SCR595 , as under : "But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies." 18. This proposition was considered by a Constitution Bench of this Court in A. V. Venkateswaran, Collector of Customs. Bombay v. Ramchand Sobhraj Wadhwani and Anr.: 1983ECR2151D(SC) and was affirmed and followed in the following words: "The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court". 19. Another Constitution Bench decision in Calcutta Discount co. 19. Another Constitution Bench decision in Calcutta Discount co. Ltd. v. Income Tax Officer Companies Dist.: [1961]41ITR191(SC) laid down : "Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction Under Section 34 I.T. Act". 20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.” I am, clearly, of the view that the Deputy Chairman has unjustly exercised his disciplinary power against the petitioner and that too in disregard of the principles of natural justice. Hence, I am not in agreement with the contention of Sri P. Sriram that this writ petition should be thrown out for not availing the appellate remedy. It would also be profitable to notice that the Supreme Court in RanjithThakur vs. Unionof India ( AIR 1987 SC 2386 )case has culled out the following principle: “9. Re: contention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council Of Civil Service Unions v. Minister For The Civil Service (1984) 3 W L R 1174 Lord Daglock said: Judicial Review has, I think, developed to a stage today when without re-iterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.... In Bhagat Ram v. State of Himachal Pradesh AIR 1953 SC 454 this Court held: It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportion to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference, it cannot be allowed to remain uncorrected in judicial review.” The action of the Deputy Chairman of the Visakhapatnam Port Trust falls foul of this principle as well. For all the aforesaid reasons, this writ petition stands allowed. The impugned order dated 24.07.2012 imposing on the petitioner the penalty of removal from service is set-aside. For all the aforesaid reasons, this writ petition stands allowed. The impugned order dated 24.07.2012 imposing on the petitioner the penalty of removal from service is set-aside. A declaration will follow that the petitioner, for all purposes shall be treated and deemed to have continued in service of Visakhapatnam Port Trust. He is entitled to all benefits, monetary and otherwise that flow therefrom. He is also entitled for costs quantified at Rs.5,000/- payable within thirty days from the date of receipt of this order.