THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3452 OF 2004 DATED 21ST JANUARY, 2010 BETWEEN M.Rachaiah … Petitioner and Central Power Distribution Co. of A.P. Ltd., Singareni Bhavan, Red Hills, Hyderabad, rep. by Its Chairman & Managing Director. … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3452 OF 2004 O R D E R The petitioner, an employee of the Central Power Distribution Company of Andhra Pradesh Limited (APCPDCL), challenges his compulsory retirement from service under the proceedings dated 22.01.2004 and seeks a consequential direction to reinstate him in service with back wages, continuity of service, etc. The petitioner was appointed as an Assistant Engineer in the erstwhile Andhra Pradesh State Electricity Board on 07.04.1989 and was promoted as Assistant Divisional Engineer on 01.12.1997. After the splitting up of the Electricity Board, the petitioner came under the services of the APCPDCL. He was subjected to disciplinary proceedings under charge memo dated 09.12.2002 issued by the Chief General Manager (Operation), APCPDCL, who was appointed as the Enquiry Officer. The charge memo was based on an Inspection Report said to have been submitted by the Inspectors of Police, Vigilance and APTS of Medak and Hyderabad. The charge against the petitioner was that he had indulged in misappropriation and malpractice of company’s funds, which constituted a serious misconduct. As many as seven separate allegations were detailed in the charge memo in support of the charge. The petitioner claims to have submitted an application on 26.12.2002 requesting supply of certain records, but states that there was no action in this regard. He complains that he was not permitted to peruse most of the records, including the Report of the Inspectors of Police, Vigilance. However, he submitted his explanation dated 07.03.2003 denying the charge. By his Report submitted under letter dated 30.06.2003, the Enquiry Officer held that the charge of having indulged in misappropriation and malpractice in respect of the Company’s funds was proved as five out of the seven allegations levelled against the petitioner in support of the charge were established on evidence. A copy of the Enquiry Report was furnished to the petitioner under memo dated 01.09.2003 calling upon him to submit his explanation as to why the punishment of compulsory retirement from service should not be imposed upon him. The petitioner submitted his explanation dated 24.09.2003 attacking the findings recorded in the enquiry on the ground that they were not supported by any material or evidence and requesting that the punishment proposed against him should be dropped. Thereupon, the final order dated 22.01.2004 was passed by the Chairman and Managing Director of the APCPDCL, concurring with the findings recorded in the enquiry and compulsorily retiring the petitioner from service, giving rise to this writ petition. In the affidavit filed in support of the writ petition, the petitioner sought to attack the disciplinary proceedings on merits in addition to raising various technical grounds. It is his case that the findings recorded in the enquiry were perverse being opposed to the evidence on record. Various factual aspects were set out in support of this contention. The petitioner further alleged that he was not given a reasonable opportunity during the enquiry causing great prejudice to him. He asserted that the documents relied upon by the Enquiry Officer were neither supplied to him nor shown to him. In the counter-affidavit filed on behalf of the APCPDCL, its Chief General Manager (IR & Legal), Hyderabad, stated to the effect that disciplinary action was initiated against the petitioner after following the due procedure. He denied the averments made by the petitioner on factual aspects and reiterated that the evidence on record established the allegations levelled and held proved against the petitioner. With regard to the conduct of the enquiry, he stated that a fair opportunity was afforded to the petitioner to participate therein and put forth his defence. The enquiry was stated to have been held as per the applicable norms and it was denied that there was any defect in procedure. He accordingly prayed for dismissal of the writ petition. In exercise of judicial review of disciplinary action taken by an employer against an employee, the scope of this Court’s jurisdiction under Article 226 of the Constitution is limited. This Court would not sit as a Court of Appeal over such proceedings or arrive at an independent finding on the evidence. Interference would be warranted where the authorities have conducted the disciplinary proceedings inconsistent with the statutory rules or in violation of the principles of natural justice, thereby entailing prejudice to the delinquent employee, or where the conclusion of the authorities based on facts is found to be perverse being wholly arbitrary, capricious or unreasonable. Another ground for interference would be on the principle of proportionality of the punishment imposed, provided the case does not involve fraud, misrepresentation or misappropriation/embezzlement of funds. Sufficiency or adequacy of the evidence relied upon by the disciplinary authorities cannot be gone into by this Court in matters of this nature nor is it open to this Court to substitute its view, in the event two views are possible on the given facts. The limitations on this Court’s jurisdiction in matters of this nature are well settled by the Supreme Court (STATE OF ORISSA V/s. BIDYABHUSHAN MOHAPATRA[1], STATE OF A.P. V/s. SREE RAMA RAO[2] STATE OF MADRAS V/s. G.SUNDARAM[3], STATE OF A.P. V/s. C.VENKATA RAO[4], B.C.CHATURVEDI V/s. UNION OF INDIA[5], APPAREL EXPORT PROMOTION COUNCIL V/s. A.K.CHOPRA[6] and UNION OF INDIA V/s. G.GANAYUTHAM[7]). The APCPDCL is governed by the Andhra Pradesh State Electricity Board Employees Discipline and Appeal Regulations, 1970. Regulation – 5 (vi) details compulsory retirement, otherwise than as provided in the Board’s Pension Regulations, as one of the penalties that may be imposed upon an employee. As per Regulation – 10 (2)(a) for imposing on a member of the service the penalty specified in Regulation – 5 (vi), amongst others, the authority competent to impose the penalty is required to 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. The Regulation further provides that 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. The employee is thereupon required, within a reasonable time, to file his written statement of defence and state whether he desires an oral enquiry. Such employee for the purpose of preparing his defence, has to be permitted to inspect and take extracts from such official records as he may specify. On receipt of the statement of defence, an oral enquiry has to be held, if desired by the employee or decided upon by the Enquiry Officer or the competent authority and in such enquiry, the employee is entitled to cross examine the witnesses and give evidence in person and to have such witnesses called as he may wish. Upon completion of the enquiry, the Enquiry Officer is required to forward the proceedings of the enquiry to the competent authority for necessary further action. It is the case of the petitioner that the APCPDCL failed to follow the procedure detailed in the above Regulation. Sri K.Vasudeva Reddy, learned counsel for the petitioner, pointed out that the Chief General Manager (Operation), APCPDCL Nalgonda, was appointed as the Enquiry Officer and was himself asked to frame appropriate and specific charges with reference to the material on record and thereafter conduct a detailed enquiry. The learned counsel stated that as per the revision of competent authorities undertaken by the APCPDCL under C.O.O. DS (Ser) Ms.No.121 dated 21.11.2002, the competent authority for imposing the punishment of compulsory retirement upon an Assistant Divisional Engineer is the Chairman and Managing Director of the Company and contended that the Chairman and Managing Director, being the competent authority, ought to have framed charges against the petitioner. He further stated that his client was denied an adequate opportunity as the documents requested by him under his letter dated 26.12.2002 had not been supplied, thereby causing prejudice to his defence. The learned counsel also attacked the conduct of the enquiry on the same ground. The learned counsel contended that the charge memo dated 09.12.2002 was vague, as a single charge of misappropriation and malpractice in respect of the Company’s funds was levelled against the petitioner, whereas the allegations in support thereof, being seven in number, were varied and unconnected. He asserted that the findings recorded by the Enquiry Officer on the given facts were perverse and unsustainable, being contrary to the evidence on record. The learned counsel also asserted that the disciplinary authority relied upon evidence which was not part of the enquiry. The learned counsel further alleged that the misconduct levelled against his client did not pertain to the duties of his office and therefore the action taken on the basis of such alleged misconduct was unsustainable. Per contra, Sri P.R.Balarami Reddy, learned counsel for the APCPDCL, reiterated the contents of the counter-affidavit filed by the APCPDCL and stated that action was taken against the petitioner in strict compliance with the applicable norms. Learned counsel stated that the enquiry against the petitioner was conducted strictly as per the procedure prescribed in Regulation – 10 of the APSEB Employees Discipline and Appeal Regulations. On merits, the learned counsel submitted that there was sufficient evidence on record to sustain the findings of the Enquiry Officer holding that the allegations levelled against the petitioner were proved. He pointed out that this Court in exercise of jurisdiction under Article 226 of the Constitution would not disturb the conclusions of the fact-finding authorities unless the same are vitiated on the ground of being based on no evidence or due to infraction of statutory procedural norms, extraneous considerations etc. Both the learned counsel placed reliance on case law in support of their various contentions. In STATE OF PUNJAB V/s. V.K.KHANNA[8], the Supreme Court observed that it is well settled in service jurisprudence that the concerned authority has to apply its mind upon receipt of the reply to the charge-sheet or show-cause as the case may be, as to whether a further enquiry is called for. In the event, upon deliberations and due considerations, it is in the affirmative – the enquiry follows but not otherwise. On facts, the Supreme Court held that the appointment of an Enquiry Officer even before submission of the reply of the delinquent employee to the charge-sheet issued to him clearly indicated the mindset of the authority that the enquiry should proceed irrespective of his reply, demonstrating that the attitude of the authority towards the delinquent was not free and fair. This ratio was followed by a Division Bench of this Court in CH.APPALA REDDY V/s. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD., VISAKHAPATNAM[9]. In that case, the employee challenged the charges framed against him by the Enquiry Officer on the ground that the same was not preceded by a show-cause notice. This Court held that the appointing authority would be in a position to apply its mind only when it calls upon the employee to explain as to the acts of misconduct levelled against him and depending upon the satisfaction of the appointing authority on consideration of such explanation, the necessity to proceed further by way of an enquiry or drop further proceedings would arise. As the employer had failed to follow such procedure, this Court, applying the law laid down by the Supreme Court in V.K.KHANNA, set aside the charge-sheet framed by the Enquiry Officer. These two judgments are relied upon by Sri K.Vasudeva Reddy, learned counsel, and it is his contention that in the present case also the enquiry against his client was not preceded by any prior notice or charge-sheet calling upon him to respond to the allegations of misconduct levelled against him. However, this ground of attack ought to have been raised by the petitioner at the stage of institution of the enquiry and not after conclusion of such enquiry, culminating in disciplinary action. In both the cases cited, the interference by the Court was at the initial stage and not after completion of the disciplinary proceedings. Having participated in the disciplinary proceedings, wherein opportunity was given to him to put-forth his defence, it is not open to the petitioner to turn back the clock and assail the very institution of the enquiry proceedings on a ground which was available to him at that time. My unreported judgment in V.BALAJI NAIK V/s. SOUTHERN POWER DISTRIBUTION CO. OF A.P. LTD, REP. BY ITS SUPERINTENDING ENGINEER (OPERATION), GUNTUR DISTRICT[10] is distinguishable on facts as in that case the employee was not afforded prior opportunity by way of a show-cause notice and thereafter, there was no regular enquiry by the Enquiry Officer, who chose to rely upon the documentary evidence collected prior to the institution of the enquiry. In such circumstances, the employee was completely deprived of an opportunity of putting forth his case and therefore, his attempt to assail the proceedings from start to finish found favour with the Court. However, in the present case, the APCPDCL conducted a full-fledged enquiry and allowed the petitioner to participate therein giving him an opportunity to put-forth his defence. In such circumstances, the judgments aforestated are of no avail to the petitioner. Reference may also be made to the judgment of a Larger Bench of this Court in K.SWARNA KUMARI V/s. GOVERNMENT OF ANDHRA PRADESH[11], wherein it was observed that when there was a plain violation or breach of a statutory rule, this Court would interfere under Article 226 when it was brought to its notice at a preliminary stage when the irregularity could be set right by timely interference. However, it was held that breach of such rules after the completion of the disciplinary proceedings would be a different matter unless prejudice resulting from such breach is clearly manifest. The unreported judgment of a learned Judge of this Court in DURBHA RADHAKRISHNA V/s. BANK OF BARODA, MUMBAI[12] pertains to a case where the punishment imposed upon the delinquent employee was found to be disproportionate to the misconduct proved against him. No plea has been advanced in the affidavit filed in support of the writ petition that the punishment of compulsory retirement visited upon the petitioner was harsh or disproportionate. In the absence of such a pleading, it is not for this Court to apply the doctrine of proportionality, all the more so when the allegation against the petitioner is that he indulged in misappropriation of the Company’s funds. As regards the ground of attack that the charge memo dated 09.12.2002 is defective, it is to be noticed that Regulation – 10(2)(a) does not specify in terms that the authority competent to impose the penalty upon the member of the service should himself frame the charges. A reading of the Regulation demonstrates that such authority is required to appoint the Enquiry Officer who shall be superior in rank to the employee against whom action is proposed or in the alternative hold an enquiry itself. Thereafter the Regulation specifies that in every such case, the grounds on which action is proposed to be taken are to be reduced to the form of definite charge or charges, which shall be communicated to the person charged along with the statement of allegations on which each charge is based. There is thus no specific requirement in the Regulation that the charge is to be framed only by the authority competent to impose the punishment. In V.VENKATA BHARANI V/s. HIGH COURT OF A.P.[13] a Full Bench of this Court considered the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, which had replaced the earlier Rules of the same name of the year 1963. It was argued that in the 1963 Rules, the Enquiry Officer was authorized to frame charges while under the 1991 Rules, the disciplinary authority was required to do so. In the context of issuance of the charge-sheet by the Enquiry Officer after the promulgation of the 1991 Rules, the Full Bench observed that the procedural doctrine of estoppel would arise when an order passed is wholly without jurisdiction but would not be applicable in a case where the procedural infirmity may not lead to a substantial change in the result. This judgment fell for consideration before the Larger Bench of this Court in SWARNA KUMARI. That was also a case where the A.P. Civil Services (CCA) Rules, 1991 were not followed and the disciplinary proceedings were held in accordance with the 1963 Rules. The majority opinion in SWARNA KUMARI re-affirmed that unless the employee was seriously prejudiced by violation of procedural safeguards, the disciplinary proceedings would not be invalid. The judgment in VENKATA BHARANI was therefore upheld. In a separate concurring opinion, another learned Judge expressed agreement with the principle deducible in VENKATA BHARANI, that even in a case where the disciplinary enquiry was conducted under the 1963 Rules after the repeal and substitution of those Rules by the 1991 Rules, the complainant would have to plead and establish not only that there was a breach or violation of one or more of the 1991 Rules but also that substantial prejudice was suffered thereby. The learned Judge further held upon interpretation of Rule 20 (2) and (3) of the 1991 Rules, that the disciplinary authority was authorized thereby to draw up the articles of charge or cause them to be drawn up. The learned Judge therefore held that the 1991 Rules did not require the disciplinary authority alone to draw up the charges. In the light of the aforestated judgments and in view of the language used in Regulation 10(2)(a) of the APSEB Employees Discipline and Appeal Regulations, the petitioner cannot maintain the ground of attack that the disciplinary action taken against him is vitiated on the ground that the Enquiry Officer himself framed the charges. In the present case, the charge levelled against the petitioner was that he indulged in misappropriation and malpractice in respect of the Company’s funds, which constitutes a serious misconduct under the APSEB Employees Discipline and Appeal Regulations, which are applicable to the APCPDCL. The charge memo further stated that the basis of the charge was the Inspection Report submitted by the Inspectors of Police, Vigilance and APTS, Medak and Hyderabad. The extract of the said Inspection Report in respect of seven separate allegations was reproduced in the charge memo dated 09.12.2002. Therefore, though the charge framed against the petitioner was general in nature indicating that he was alleged to have indulged in misappropriation and malpractice in respect of the Company’s funds, the details furnished as the basis of the charge clearly put him on notice as to what were the specific allegations of misconduct to which he had to respond. In such circumstances, the charge-sheet cannot be categorized as being vague or so general in nature so as to cause prejudice to the petitioner in responding and putting forth his defence. It is relevant to note that except for this bald attack, the petitioner did not choose to assert or demonstrate as to how any prejudice was caused to him by the framing of the charge. In G.CHANDRA KANTH V/s. GUNTUR DT.MILK PRODUCERS UNION LTD.[14] a learned Judge of this Court held that a charge memo must not be vague or so general as to make it impossible of being traversed. The exact nature of the alleged misconduct should be conveyed to the delinquent employee so as to enable him to meet the charge effectively. A vague charge was held to be a fatal defect which would vitiate the entire proceedings. In the present case, the charge levelled against the petitioner was one of misappropriation and malpractice in respect of the Company’s funds. This charge no doubt was general in nature without further specifics or details. However, as many as seven separate allegations were appended to the charge based on the Report of the Inspectors of Vigilance, Medak and Hyderabad. These seven allegations spelt out in detail as to what was the basis for the misconduct levelled against the petitioner. Therefore, the charge memo supplied to the petitioner cannot be said to be vague or so general in nature so as to cause prejudice in responding to the allegations levelled against him. This judgment therefore does not help the petitioner. In SREE RAMA RAO, the Supreme Court held that the charge and the statement of facts form part of a single document and therefore, the allegations in support of the charge cannot be disassociated from the charge. The Supreme Court observed that it would be hypercritical to proceed on the view that the employee had been informed of the charge and not the contents of the statement of facts. The complaint of the petitioner that he was not furnished the requisite documents also does not hold water. It is evident from the record that under letters dated 16.01.2003 and 18.02.2003, the APCPDCL permitted the petitioner to peruse the relevant records in its Divisional Office at Sangareddy. As per Regulation–10(2)(a), the delinquent employee, for the purpose of preparing his defence, has to be permitted to inspect and take extracts from the official records as he may specify. There is no further requirement that the records should be duplicated and made available to the employee or marked as exhibits during the enquiry. The petitioner does not state that pursuant to the letters dated 16.01.2003 and 18.02.2003, he was not permitted to peruse the records or take relevant extracts therefrom. He cannot as a matter of right assert that copies of all the records should be provided to him. The petitioner stated in his explanation dated 07.03.2003 that all the records were not made available to him, but without specifying as to which record was denied to him and how such denial caused prejudice to him. In the absence of established prejudice, no ground is made out for interference even if some records were not shown to the petitioner. On facts, Sri K.Vasudeva Reddy, learned counsel, laboured to make out that the findings recorded in the enquiry were perverse and unsupported by material evidence, thereby warranting the interference of this Court. It is his case that the evidence on record was not properly appreciated by the authorities. Further, evidence and material which had not been shared with the petitioner had been relied upon both by the Enquiry Officer as well as the Disciplinary Authority. He contended that the Disciplinary Authority did not confine himself to the Enquiry Report and traversed beyond the findings recorded therein. The learned counsel pointed out that statements obtained from M/s.Satguru Private Accounting Agency, Hyderabad, were neither marked during the enquiry nor were made available to the petitioner, but the same had been relied upon. It is pointed out that the petitioner was only an Assistant Divisional Engineer and that it was the Divisional Engineer who was the competent authority to enter into agreements for the purpose of hiring vehicles and labour. Therefore, the finding against the petitioner that he had favoured one K.Ramesh, Contractor, in award of contracts for supply of vehicles and labour was said to be unsustainable. The learned counsel also attacked the finding that K.Ramesh was the benami contractor of the petitioner and that the petitioner himself executed the contracts. The further allegation that the petitioner failed to take measures to check the bills supplied by K.Ramesh and thereby caused loss of revenue to the APCPDCL by paying for works which had not been executed was denied. Reliance was sought to be placed on the evidence adduced during the course of the enquiry by the former Divisional Engineers, who were the