IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 3594 of 1999 Between: Smt. S.Lalitha, W/o. K.A.Padmanabhan, R/o. Flat No. 5, Abhisek Apartments, Habsiguda, Hyderabad. ..... PETITIONER AND 1 THe Chairman, A.P. Nutruition Council Chief Secretary to Government, Andhra Pradesh, Hyderabad. 2 The Managing Director, Andhra Pradesh Foods, Nacharam, Hyderabad. 3 Sri M.Markandeya, Retired District & Sessions Judge, Plot No. 43, Road No. 2, West Marredpally, Secunderabad-26. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ order or direction or direction particularly one in the nature of Writ of certiorari after calling for the records relating to the proceedings No. APF/HRD/E/1722/85-98 dt. 20-4-1998 on the file of the Managing Director, A.P. Foods, Nacharam , Hyderabad as Confirmed in procedings No. 3964/ICDS. A1/98-5 dt. 5-10-1998 by the Chairman , A.P. Nutrition Council, Hyderabad on appear and quash the same and also declaring that the petitioenr is entitled to full salary from the date when she was transferred to A.P.State vikalangula corporation till the date of her reinstatement in to Service and pass Counsel for the Petitioner:MR.M.PANDURANGA RAO Counsel for the Respondent No.: . The Court made the following : THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3594 OF 1999 O R D E R The petitioner invokes the Certiorari jurisdiction of this Court to quash the Proceedings No.APF/HRD/E/1722/85-98 dated 20.04.1998 of the Managing Director, A.P. Foods, Hyderabad, removing her from service, confirmed in Appeal vide Proceedings No.3964/ICDS.A1/98-5 dated 05.10.1998, by the Chairman, A.P. Nutrition Council, Hyderabad. The petitioner also seeks a declaration that she is entitled to full salary from the date when she was transferred to A.P. State Vikalangula Corporation till the date of her reinstatement in service. The petitioner was appointed as an Accounts Officer in A.P. Foods, Hyderabad, in the year 1985. Her probation was declared with effect from 25.10.1986. The post of Accounts Officer was designated as Deputy Manager in the year 1987. She worked as Deputy Manager (Disposals and Procurement) and also Deputy Manager (Human Resources Department). It is her case that as the new Managing Director of A.P. Foods (for brevity, ‘the Management’), who took charge in December, 1995 was inimical to her, she was sent on deputation to A.P. State Vikalangula Corporation in January, 1997. She protested against the said transfer and requested that she be retained in A.P. Foods. While so, a charge sheet-cum-show cause notice was issued to her under Proceedings No.APF/HRD/E/1722/85-97 dated 18.02.1997 framing five charges against her in respect of irregularities which were alleged to have been committed during the period 1988-89. She submitted her explanation dated 12.04.1997 pointing out, amongst other things, that the irregularities alleged to have been committed by her pertain to the year 1988-89, whereas the charges were framed against her after a lapse of nearly ten years, i.e. in the year 1997. However, a retired District and Sessions Judge was appointed as an Enquiry Officer on 19.04.1997 to look into the charges framed against the petitioner. Five witnesses were examined by the Management and sixty documents were marked by it before the Enquiry Officer. After completion of the evidence of the Management on 11.07.1997, the Enquiry Officer posted the matter on 18.07.1997 to enable the petitioner to adduce her evidence. It is her case that she was unable to attend the enquiry on the said date, as her husband was not well. However, the Enquiry Officer closed the proceedings on that date and advised the petitioner to submit her written arguments, if any, on or before 22.07.1997. The petitioner submitted her arguments on 22.07.1997. It is her grievance that without considering her written arguments, the Enquiry Officer submitted his report dated 28.07.1997 holding the petitioner guilty of charges 2 and 4, partly guilty of charges 1 and 5 and not guilty as regards charge 3. Basing upon the said enquiry report, the petitioner was issued show cause notice dated 07.08.1997 calling for her explanation. The petitioner submitted a reply on 14.08.1997 in response thereto denying the charges and requesting the Management to drop further action against her. The Management issued a final show-cause notice on 19.09.1997 calling upon the petitioner to submit her explanation as to why she should not be removed from service. The petitioner submitted explanations dated 12.01.1998 and 15.02.1998 stating that relevant documents were not furnished to her in spite of her request, reiterating that she had not committed any irregularities and requesting the Management to drop further disciplinary proceedings against her. Thereupon, the Management passed the impugned proceedings dated 20.04.1998 removing the petitioner from service. Aggrieved thereby, she preferred an appeal before the Chairman, A.P. Nutrition Council, Hyderabad, the first respondent herein, which was dismissed by Proceedings dated 05.10.1998. The disciplinary action taken by the Management against the petitioner, confirmed in appeal, is under challenge in the present writ petition. Heard Sri M.Srikanth, learned counsel, representing Sri M.Panduranga Rao, learned counsel for the petitioner and Sri G.Ramachandra Rao, learned counsel for the respondents. The primary ground of attack raised by the learned counsel for the petitioner against the impugned disciplinary action is that the same is vitiated by unexplained delay. It is pointed out that the charge memo-cum-show cause notice was issued in February, 1997 pertaining to irregularities which are alleged to have been committed by the petitioner as long back as in the year 1988-89. The learned counsel submitted that no convincing reason had been put forth by the Management to explain the said delay. He further contended that the delay caused grave prejudice to the petitioner as she could not present a proper defence in view of the long lapse of time; as the persons concerned had no recollection of what had actually transpired nearly a decade ago. The learned counsel also contended that the petitioner was denied adequate opportunity in the disciplinary proceedings as she was not furnished with relevant documents as requested by her and further, the Enquiry Officer, having denied her the opportunity of adducing evidence, completely ignored her written arguments, having himself called for the same. With regard to the aspect of delay in the initiation of the disciplinary proceedings, the stand of the Management in its counter affidavit is that, upon the anonymous complaints received by the Management in January and February, 1997 purportedly from the employees of A.P. Foods, alleging that the petitioner had committed irregularities in the purchase of Jaggery during the year 1988-89, the Management had undertaken verification of the old records and it came to light that financial and administrative irregularities of a serious nature had been committed by her during the said period. The learned counsel for the petitioner stressed upon the fact that no such anonymous complaints had been made part of the record or had been put to the petitioner at any stage during the disciplinary proceedings. He further contended that in a Company, such as A.P. Foods, auditing of the financial records would be undertaken annually as required under the Companies Act, 1956 and it is unbelievable that the financial irregularities alleged against the petitioner would have remained undetected for all these years. He further contended that the disciplinary action initiated against the petitioner was a consequence of her protest against her transfer. He urged that this Court should draw the inference that the petitioner was targeted because of this incident and the belated disciplinary proceedings were only a ruse adopted by the Management to rid itself of the petitioner. The learned counsel further submitted that a reading of the charge sheet would clearly support this conclusion in as much as charge 1 demonstrates that the Management had already prejudged the issue as is indicated by the language used “… she is therefore, found guilty of misconduct of fraud and dishonesty in connection with the business of the company …” (emphasis supplied). The Learned counsel further contended that a reading of the enquiry report would manifest that the Enquiry Officer did not even advert to any of the contentions raised by the petitioner in her lengthy and detailed written arguments, which clearly violates the principle of audi alteram partem. He pointed out that in spite of repeated requests, the petitioner was not furnished with the documents sought by her and this also constitutes violation of the principles of natural justice. The learned counsel asserted that the Enquiry Officer had brushed aside the evidence adduced by the Management’s own witnesses whenever the same did not conform with his predetermined findings. The learned counsel also addressed this Court on the merits of the charges levelled against the petitioner and argued that the evidence adduced by the Management did not prove her guilt in respect of the irregularities alleged to have been committed by her. Per contra, Sri G.Ramachandra Rao, learned counsel for the respondents, submitted that action had been initiated against the petitioner in respect of the irregularities committed by her during the period 1988-89 on the basis of the anonymous complaints received from the employees in January/February, 1997. The learned counsel asserted that the delay in initiation of the disciplinary proceedings would not be sufficient, in itself, to vitiate the action taken by the Management and relied upon various judgments in support of his contention. The learned counsel submitted that the petitioner would have to prove that prejudice had been caused to her owing to such delay. He also contended that the active participation of the petitioner in the disciplinary proceedings estopped her from raising the ground of delay in this adjudication. On facts, the learned counsel submitted that the petitioner failed to make out that she had suffered any prejudice owing to the said delay. He stated that the petitioner was afforded a proper and reasonable opportunity of presenting her defence through out and the sequence of events would clearly demonstrate that the petitioner herself failed to avail such opportunity. The learned counsel pointed out that the Enquiry Officer referred to the factum of the petitioner having filed her written arguments on 22.07.1997 and the mere failure on his part to specifically refer to the contents thereof during his deliberations did not warrant the finding that the same were overlooked. He also submitted that the petitioner was given ample opportunity to peruse all the documents. He asserted that the petitioner’s insistence on furnishing of documents irrespective of their relevance cannot be said to be a violation of the principles of natural justice. It is for the petitioner to establish the relevance of such documents before such an inference can be drawn. The learned counsel also submitted that the findings recorded in the enquiry would not normally call for interference by this Court in a writ petition, unless the same are not based on or are contrary to the evidence on record. In reply, Sri M.Srikanth, learned counsel for the petitioner, submitted that the anonymous complaints which are said to be the basis for the belated initiation of the disciplinary proceedings were never brought on record through out the disciplinary proceedings and that it is not open to the Management to make out a new case to explain the delay by way of this plea in the counter filed before this Court. Further, the learned counsel would argue that it is for the Management to first explain the delay in initiation of the proceedings and only thereafter, the burden would shift upon the petitioner to demonstrate the prejudice caused to her by such delay. In the present case, the learned counsel contended that the Management failed to cross the first obstacle with regard to explanation of the delay and therefore, it could not contend that the petitioner did not prove that any prejudice had been caused to her by such delay. The learned counsel reiterated that the record clearly manifested a blatant violation of the principles of the natural justice in so far as the denial of a reasonable opportunity to the petitioner is concerned. He, therefore, submitted that the action of the Management, in removing the petitioner from service basing upon such proceedings, could not be sustained. I do not propose to venture into an examination and evaluation of the merits of the findings in the disciplinary proceedings in this case. This Court, in exercise of its jurisdiction under Article 226 of the Constitution, would not normally sit in appeal over such findings unless it is made out that it is a case of complete non-application of mind or of perversity. In this regard, the observations of the Supreme Court in B.C.CHATURVEDI V/s. UNION OF INDIA[1] are worthy of reference: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.” The present case is amenable to disposal on the other issues raised and does not require an enquiry into factual aspects relating to the findings in the disciplinary proceedings. With regard to the contention that the Management had prejudged the issue as is indicated by Charge No.1, the learned counsel for the petitioner relied upon the unreported judgment of a learned single Judge of this Court in N.PRABHAKARA MURTHY V/s. TIRUMALA TIRUPATHI DEVASTANAMS, TIRUPATHI[2]. The words “It is very clear beyond shadow of doubt that ……… had indulged in illegal and ignoble acts ……” prompted the learned Judge to state in that case that the conclusion was irresistible that the respondent therein had already made up its mind ‘beyond a shadow of doubt’ as to the guilt of the delinquent in respect of the species of misconduct he had been charged with. As I propose to deal with matters other than the phraseology and language used in the charge memo, I do not propose to give a finding in the present case as to whether the use of the words ‘found guilty of misconduct’ is by itself indicative of prejudging the issue. In the present case, I do not find an acceptable and reasonable explanation forthcoming from the Management to explain the delay in the initiation of the disciplinary proceedings. The so-called anonymous complaints relied upon for the first time before this Court, to justify such belated initiation were neither brought on record during the disciplinary proceedings nor were they ever adverted to. This was notwithstanding the fact that the petitioner raised the issue of delay at the very threshold when she submitted her reply dated 12.04.1997, wherein she stated “it is not clear what made the present competent authority to issue charge sheet now after the lapse of 10 years”. As submitted by the learned counsel for the petitioner, being a Company, the financial records and accounts of the M/s.A.P. Foods would have been submitted for audit in accordance with the legal requirement obtaining under the Companies Act, 1956. It is therefore difficult to believe that the financial irregularities allegedly committed by the petitioner would have remained undetected during such inspection. Further, even if it were to be accepted that the Management initiated the belated disciplinary proceedings on the basis of the alleged anonymous complaints, it is rather difficult to believe that as many as five separate irregularities involving the petitioner would have come to light during the verification undertaken by the Management. Relevant to note, the anonymous complaints are said to have referred to the alleged irregularities committed by the petitioner only in the purchase of Jaggery. This concerted move on the part of the Management to build up as many as five separate charges against the petitioner after a lapse of nearly one decade lends itself to the inference that the said action was not bona fide. It is also relevant to note that the belated disciplinary proceedings were initiated shortly after the incident involving the petitioner’s protest against her transfer from M/s.A.P. Foods. The proximity of these two events lends support to the contention of the learned counsel for the petitioner that she was targeted for the same. I am, therefore, of the opinion that the Management failed to explain the delay in the initiation of the disciplinary proceedings. Further, even if it is accepted that the petitioner must demonstrate that prejudice was caused to her by the delay, it is my considered opinion that she has done so adequately. The Management’s own witnesses deposed that they could not recall the full facts and surprisingly, to the extent that they did, the Enquiry Officer brushed aside the same when it did not suit his purpose, saying that what they said was not supported by record. The petitioner herself stated her incapacity to produce witnesses in support of her defence owing to the long lapse of time and in fact, failed to adduce any evidence in her defence. The material documents requested by her to prove her case such as the delegation of powers by the Managing Director to the Deputy Managers, the inward register maintained by the Managing Director’s Peshi, the legal opinion taken by the HRD Section in respect of the incident involved in Charge No.5, were denied to her. Therefore, the inevitable conclusion that emerges is that the petitioner was severely prejudiced by the delay and denial of records in presenting her defence. Learned counsel for the respondent relied upon the judgment of the Supreme Court in P.D.AGRAWAL V/s. STATE BANK OF INDIA[3]. That was a case involving delay of about three years in the initiation of the disciplinary proceedings. The Supreme Court held that as the delinquent in the said case had participated in the proceedings without any demur, cross-examined the witnesses, entered his defence and having failed to raise the plea of prejudice having been caused to him before any forum could not complain of such delay thereafter. The said judgment is clearly distinguishable on facts in as much as the petitioner in the present case has been protesting from the very start that she was prejudiced by the delay. The said judgment has therefore no application to the facts of the present case. The learned counsel also relied upon a Division Bench judgment of the High Court of Punjab and Haryana in SACHDEVA O.P. V/s. FOOD CORPORATION OF INDIA[4], wherein the Court reiterated that the Court would normally interfere if the delay is found to have caused prejudice to the employee. Such being my finding in the present case, the above judgment does not aid the learned counsel for the respondent. In GOVERNMENT OF ANDHRA PRADESH V/s. V.APPALA SWAMY[5], the Supreme Court reiterated that no hard and fast rule could be laid down with regard to the question of delay in the conclusion of the departmental proceedings. The Supreme Court held that each case would have to be determined on its own facts and elaborated that where, by reason of the delay, prejudice is caused to the employee, the proceeding can be quashed on the ground of such delay. The present case deals with delay in initiation and not in conclusion and that apart, the facts of the present case clearly demonstrate palpable prejudice to the petitioner owing to the delay. The above judgment is therefore of no avail to the Management. Similar is the judgment of the Supreme Court in STATE OF A.P. V/s. N.RADHAKISHAN[6]. The said case also pertains to delay in the conclusion of the disciplinary proceedings and the Court reaffirmed that each case would have to be considered, taking into account all the relevant facts and circumstances. The Court further observed that unexplained delay in the conclusion of the proceedings by itself is an indication of prejudice caused to the employee. I do not find any principle laid down in the said judgment which requires me to deviate from my finding aforestated. In STATE OF MADHYA PRADESH V/s. BANI SINGH[7], the Supreme Court held that the delay of 12 years in the initiation of disciplinary proceedings, which was not explained satisfactorily, would result in unfairness to the employee. Similar is the judgment of the Supreme Court in P.V.MAHADEVAN V/s. MD.T.N.HOUSING BOARD[8]. The above decisions support my finding that the unexplained delay in the present case resulted in grave injustice being caused to the petitioner. The learned counsel for the respondent also relied upon the judgment of the Supreme Court in RAE BARELI KSHETRIYA GRAMIN BANK V/s. BHOLA NATH SINGH[9] with regard to the scope and ambit of judicial review under Article 226 of the Constitution in disciplinary proceedings. Therein, the Supreme Court held that under Article 226 of the Constitution, the High Court would not act as an appellate authority but would only correct errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice. This being the exercise undertaken by me in the present case, the stand of the Management is not furthered by its reliance on the above judgment. The learned counsel for the respondent also relied upon the judgment of the Supreme Court in STATE OF TAMIL NADU V/s. THIRU K.V.PERUMAL[10] in support of his contention that it is the duty of the authority only to supply relevant documents and not each and every document that may be asked for by an employee. The Court observed therein that it is the duty of the delinquent officer to point out how each document was relevant to the charges or the enquiry being held against him. In the present case, the petitioner made out the relevance of at least some of the documents sought by her, such as: (1) Orders of the Managing Director delegating powers to the Deputy Managers in connection with Charge No.1; (2) Inward register maintained by the Managing Director’s Peshi, which has relevance to Charge No.4; and (3) Copy of the legal opinion taken by the HRD Section in respect of Charge No.5; Therefore, the denial of these documents by the Management caused prejudice to the petitioner. I have also gone through the enquiry report dated