HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.7238 of 2003 Date: December 30, 2009 Between: O.K.S. Reddy, S/o. O. Tirupal Reddy, Aged about 52 years, R/o. Anakapally, Visakhapatnam District … Petitioner And Anakapally Rural Electric Cooperative Society Ltd., Kasimkota, Visakhapatnam District, rep. by its Managing Director, and another … Respondents Order: This writ petition is filed questioning the order dated 22-11-2002 passed by the Managing Director of the first respondent-Society, reverting the petitioner from the post of Administrative Officer to Assistant Accounts Officer/Manager, as a measure of punishment, pursuant to disciplinary proceedings initiated against him. 2. The petitioner was appointed as Lower Division Clerk on 18-11-1974 in the first respondent – Anakapally Rural Electric Cooperative Society Ltd., Kasimkota, Visakhapatnam. After holding several other posts, he was promoted to the post of Administrative Officer, from the category of Manager with effect from 18-05-1999. When he was working as Administrative Officer, on certain complaints made, disciplinary proceedings were initiated against him by placing him under suspension and an Advocate by name Sri N. Ranga Rao of Anakapally was appointed as enquiry officer, to conduct enquiry into the allegations leveled against the petitioner. In the disciplinary proceedings, the enquiry officer has framed as many as six charges against the petitioner and issued statement of articles of charges. The charges framed against the petitioner read as under: 1. “ That you while working as Administrative Officer, RECS Kasimkota in abuse of your official position and actuated by corrupt motive demanded and collected from Sri Doddi Siva Sanyasi Rao, S/o. late Doddi Joga Rao of Kasimkota Village, illegal gratification of a sum of Rs.50,000/- (Rupees Fifty Thousand only) in the month of November, 2000 in the presence of his brother Doddi Venkata Suri Satyanarayana at your residence at Anakapalle, for providing compassionate appointment consequent on the death of his father, Sri Doddi Joga Rao an employee of the RECS: Kasimkota.” 2. “that you while working as Administrative Officer, RECS Kasimkota in abuse of your official position and actuated by corrupt motive demanded and collected from the following contractors of the RECS: Kasimkota the sums noted against each of them for processing their bills in respect of the works and executed by them in RECS: Name of the contractor Date of payment Amount 1. C h a d a r a m Sanyasi Naidu 03.05.2001 Rs.1,500-00 2. R. Sanyasi Rao 14.06.2001 Rs.500-00 3. Kandregula Jagga Rao 27.06.2001 Rs.500-00 3. “that you were instrumental in the petition dt.16.6.2001 put in by one Sri Bheesetti Appa Rao of Anakapalle against the management and affairs of the Rural Electric Cooperative Society, Kasimkota in that you furnished copies of the following records of the society in utter disregard of official discipline and secrecy: 1. Proceedings Lr.No.RECS/PUR/PE(P)/2001-02 dt.6.4.2001 of the Managing Director, RECS: Kasimkota 2. Proceedings Rc.No.RECS/ADM/Estt/Acctt/dt.12.4.2001 of the Managing Director, RECS: Kasimkota 3. Lr.RECS/PUR/Pre(P)/2001-02 dt.4.5.2001 of the Managing Director, RECS: Kasimkota addressed to Sri Venkateswara Electric & hardware, Gopalapuram 4. Lr.RECS/PUR/PE(P)/2001-02 dt.7.5.2001 of the Managing Director, RECS: Kasimkota 5. Lr.RECS/PUR/PE(P)/2001-02 dt.5.5.2001 of the Managing Director, RECS: Kasimkota 6. Lr.RECS/PUR/PE(P)/2001-02 dt.3.5.2001 of the Managing Director, RECS: Kasimkota 4. “that you in abuse of your official position and in utter disregard of office discipline and secrecy indulged in sending petitions against the institution Rural Electric Cooperative Society, Kasimkota and its officials on the names of third parties with a view to tarnish the image of the Rural Electrical Cooperative Society and its officials and management. 5. “that in utter disregard of office discipline you were found absent in the office when the Managing Director, RECS: Kasimkota sent for you during the following dates. 28th and 29th June, 2001 18th and 19th July, 2001 23rd and 24th July, 2001 6. “that in gross violation of office discipline, you abstained from duty on the 30th July, 2001 without applying for leave whatsoever” 3. On receipt of the statement of charges from the enquiry officer, at first instance, the petitioner submitted a detailed representation to the Registrar of Cooperative Societies and requested to intervene in the matter by appointing an official of the Department as an enquiry officer in place of non-official enquiry officer, i.e. the Advocate who was appointed as enquiry officer. Thereafter, the petitioner, while denying the charges framed against him, sought time from the enquiry officer to file a detailed explanation and he filed a detailed representation to the Managing Director of the Society on 03-11- 2001 disputing the charges framed against him, wherein he has also questioned the appointment of non-official as an enquiry officer to enquire into the charges framed against him. Though the petitioner was consistently objecting for the enquiry to be conducted by a non-official, i.e. the Advocate- enquiry officer, but, the enquiry officer proceeded with the enquiry and recorded the statements of the complainants and conducted enquiry on 20- 10-2001. Based on the statements recorded in the enquiry, the enquiry officer sent his report dated 09-11-2001 holding that all the charges framed against the petitioner were proved. On receipt of the enquiry report, the Managing Director of the first respondent-Society issued show cause, notice dated 09-07-2002 to the petitioner to show cause, why he should not removed from service. In response to the said show cause notice, detailed explanations were filed by the petitioner on 19-07-2002 and 20-08-2002. Thereafter, the first respondent, by the impugned order, by recording a finding that in view of the enquiry report furnished by the enquiry officer, the charges framed against the petitioner are proved, imposed on him the punishment of reversion from the post of Administrative Officer to that of Assistant Accounts Officer/Manager with immediate effect. 4. In the affidavit filed in support of the writ petition, it is stated that the petitioner, in the capacity of in-charge Managing Director, opposed number of petitions and proceedings initiated against the Managing Director, who was under suspension, challenging his suspension etc., and the said person after his reinstatement, with a view to wreck vengeance against him, initiated disciplinary enquiry proceedings by leveling false charges. It is alleged that an outsider was appointed as an enquiry officer, at the instance of the Managing Director of the first respondent-Society, so as to punish the petitioner on one ground or the other. It is the case of the petitioner that as much as the Board is the appointing authority for the post of Administrative Officer; as such, there is no jurisdiction to the Managing Director to pass an order imposing punishment in the disciplinary proceedings. It is further the case of the petitioner that appointment of a person who is an outsider as enquiry officer is contrary to Bye-laws and therefore the enquiry conducted is illegal and that no opportunity was given to him during the enquiry. It is alleged that the enquiry officer recorded findings merely based on the alleged complaints and alleged statements of witnesses without giving any opportunity to cross-examine the said witnesses. 5. Counter affidavit is filed by the Managing Director on behalf of the first respondent-Society, wherein, while denying the various allegations of the petitioner, it is stated that it being a Society, the provisions of Shops and Establishments Act apply. While further denying the various allegations made by the petitioner, it is stated that there is no bar in the Bye-laws of the Society for appointing an outsider as an enquiry officer. It is further stated that the petitioner, having received the charge memo, did not file his explanation by 15-10-2001; as such there was no other option to the enquiry officer except to complete the enquiry based on the material available and to submit a report to the disciplinary authority. With reference to the representation filed by the petitioner to the Managing Director in response to the charge memo, it is stated that the explanation dated 03-11-2001 which is sent to the first respondent is not tenable when the enquiry is pending before the enquiry officer. With regard to the allegation of the petitioner that he was not given sufficient opportunity in the enquiry, it is stated that the petitioner never asked for any cross-examination of any witnesses. With regard to the competency of the Managing Director of the first respondent-Society to pass the impugned order, it is stated that as per the service conditions/regulations of the Society, the Managing Director is competent to impose any major punishment on the staff members working in the Administration and Accounts Wing of the Society. It is also stated in the counter affidavit that, in any event, the impugned order imposing punishment is passed pursuant to the resolution passed by the person in-charge of the Society; as such, there are no grounds to interfere with the same, on the ground of jurisdiction also. 6. Heard Sri S. Sriram, learned counsel representing Sri D.V. Sitharam Murthy – learned counsel for the petitioner and Sri G. Prabhakar Rao, learned counsel appearing on behalf of the respondents. 7. It is submitted by Sri S. Sriram, learned counsel for the petitioner, that though the petitioner has been in service from the last several years, at no point of time any allegation was made against him and only because the petitioner had to oppose the Managing Director in various applications, the Managing Director, after his reinstatement, started harassing the petitioner on one pretext or the other. It is submitted that initiation of disciplinary proceedings against the petitioner is only at the instance of the Managing Director of the first respondent-Society, who is inimically disposed against him. It is further submitted that though the petitioner has filed detailed explanation to the charge memo, to the first respondent, the same is not taken into consideration by the enquiry officer. It is further submitted that though there was no material at all in respect of the charges, the enquiry officer, by recording the statements of the witnesses, without giving him any opportunity to cross-examine such witnesses, recorded adverse findings against the petitioner; as such the same is illegal and arbitrary. It is contended that the appointing authority for the post of Administrative Officer is the Board of the Society and hence there is no jurisdiction to the Managing Director of the Society to pass an order imposing punishment on the petitioner. It is also submitted that there was no reason for appointing an outsider, i.e. an Advocate as an enquiry officer leaving departmental officials. It is also submitted that in spite of the repeated objections of the petitioner for conduct of enquiry by a non-official enquiry officer, the same has not been considered in proper perspective and based on the enquiry report, which itself is a designed one, at the instance of the Managing Director, the impugned order is passed reverting the petitioner to a lower post. 8. On the other hand, Sri G. Prabhakar Rao, learned counsel appearing on behalf of the respondents submits that there were complaints against the petitioner that he demanded bribe to extend the benefit of appointment on compassionate grounds and also from the contractors for clearing their bills. It is submitted that in spite of receipt of charge memo, the petitioner did not choose to submit any explanation to the enquiry officer and instead submitted representation to the Registrar of Cooperative Societies. It is the contention of the learned counsel for the respondents that as per the Bye- laws there is no prohibition for appointment of an outsider-Advocate as an enquiry officer and an outsider was appointed as enquiry officer only to give fair and reasonable opportunity to the petitioner. With regard to jurisdiction, it is submitted that as per the Bye-laws of the Society, for the staff members who are working on the Administrative side, the Managing Director is the competent authority. Finally, it is submitted that as much as the order imposing punishment of reversion is passed after conducting necessary enquiry, by giving opportunity to the petitioner, there are no grounds to interfere with the same. 9. At the outset, I deal with the jurisdictional aspect raised by the petitioner, questioning the competency of the authority who passed the impugned order of reversion against him. It is contended by learned counsel for the petitioner that as much as the appointing authority for the post of Administrative Officer is the Board, as such, the impugned order passed by the Managing Director of the Society is without jurisdiction. Disciplinary action against the employees of the Society are governed by the bye-laws framed in this regard, which are approved by the Board of Directors of the Society. From the annexure to Chapter-IV of the bye-laws, it is clear that the Managing Director is competent to impose any major punishment on the staff members working in the Administration and Accounts Wing. As much as the post of Administrative Officer is on the Administration Wing, as such, the Managing Director is competent to pass an order of punishment against the petitioner in disciplinary proceedings. In that view of the matter, the contention of the learned counsel for the petitioner that the Managing Director is not competent to pass an order imposing punishment on the petitioner cannot be accepted. Though learned counsel for the petitioner has relied on a judgment of this court in the case of Vivek Vardhini Education Society, Hyderabad v. State of Andhra Pradesh and others[1], but, the same would not render any assistance in support of the plea of the petitioner in this case. In the said case, when an Advocate was appointed as enquiry officer, contrary to Rule 7(2) of A.P. Private Institutions Employees (Discipline and Control) Rules, 1983), a Division Bench of this court has held that an Advocate who is a stranger to the management cannot be construed as an authority superior in rank to the charged officer in the Department. Further, the learned counsel placed reliance on a judgment of the Hon’ble Supreme Court in the case of J.K. Aggarwal V. Haryana Seeds Development Corporation Ltd., and others[2], wherein it is held as under: “On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett’s case that in defending himself one may tend to become “nervous” or “tongue tied”. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice. 10. Coming to the facts of the case on hand, it is to be noted that there was no request from the petitioner at any point of time for taking the assistance of a Lawyer to defend his case. Though the petitioner is objecting, for appointment of an Advocate as enquiry officer, but, it is not brought to the notice of this court any bye-law which prescribes appointment of a departmental person alone as an enquiry officer. In absence of any specific rule for appointment of enquiry officer of the department only, it is always open to the respondents to appoint an independent person as an enquiry officer. Merely because an Advocate is appointed as enquiry officer, in absence of such appointment being contrary to any statutory rule or bye- law, the petitioner cannot object to the same. Hence, the above judgment of the Supreme Court cannot render any assistance to the petitioner. 11. It is further submitted by learned counsel for the petitioner that in spite of denial of charges by the petitioner, his explanation has not been considered and without conducting proper enquiry and without giving any opportunity to cross-examine the witnesses, examined in the enquiry, adverse findings are recorded by the enquiry officer against him and impugned order of reversion is passed. Though six charges have been framed against the petitioner, charges 1 and 2 appear to be serious. So far as the first charge is concerned, it is alleged that the petitioner accepted a bribe of Rs.50,000/- from one Sri Doddi Siva Sanyasi Rao, S/o. late Doddi Joga Rao, to extend the benefit of appointment in the Society on compassionate grounds. It is the case of the petitioner that during the lifetime of the deceased employee, there was a complaint against him and in the enquiry conducted by the petitioner; findings were recorded against the employee. When such is the case, the charge framed against the petitioner is to be examined very carefully. In the explanation filed by the petitioner in response to the charge memo, he has denied the charges framed against him and took further time to file a detailed explanation. Further, a detailed explanation was also submitted to the Managing Director of the Society, but it appears that the said explanation has not been taken into account, by adopting a too technical approach stating that it was not submitted to the enquiry officer. If such explanation was submitted to the Managing Director, who is the disciplinary authority, he ought to have forwarded such explanation to the enquiry officer before recording his findings. I have perused the record relevant to the conduct of enquiry by the enquiry officer. The statements of the witnesses were recorded in the enquiry held on 20-08-2001. The enquiry officer, before conduct of enquiry on 20-08- 2001, has issued notice to the complainants and other persons whose names appeared in the complaint, but, such notice was not sent to the petitioner. Even the learned counsel appearing on behalf of the respondent- Society fairly stated during the course of arguments that no notice of enquiry was issued to the petitioner communicating the date of enquiry. Though it is specifically pleaded by the petitioner that no opportunity was given to cross- examine the witnesses examined in the enquiry, but, in the counter affidavit, it is merely stated that the petitioner did not ask for cross-examination of the witnesses. When such serious allegations are made with regard to accepting of bribe for extending benefit of appointment on compassionate grounds, by all fairness, the enquiry officer should have notified the date of enquiry on which date the statements of the witnesses were recorded. By recording the statements of the witnesses without even notifying the date of enquiry to the petitioner and without giving any opportunity to cross-examine such witnesses, the enquiry officer should not have recorded any findings against the petitioner. The findings which are based on such enquiry conducted on 20-08-2001 are in gross violation of principles of natural justice and such procedure cannot be the basis for recording any adverse findings against a delinquent employee based on the charges framed against him. It is the case of the petitioner that written explanation was given to the Managing Director and the same is not taken into consideration by the enquiry officer on the ground that in spite of repeated reminders the petitioner did not submit any explanation to him. Even assuming that a copy of such explanation was not sent to the enquiry officer, nothing prevented the enquiry officer to notify the date of enquiry to the petitioner on which date the statements of the witnesses were recorded, based on the complaint made against the petitioner. Hence, it is clear that such adverse findings are recorded in the disciplinary proceedings behind the back of the petitioner and in that view of the matter the same cannot constitute valid basis to impose any punishment, as rightly contended by learned counsel for the petitioner. 12. The approach of the enquiry officer, in not even notifying the petitioner with regard to the date of enquiry, is not only illegal and arbitrary, but contrary to the procedure for conduct of enquiry in disciplinary proceedings. With regard to maintainability of the writ petition, it is the case of the petitioner that finances are controlled by the Government and there is a pervasive control on the affairs of the Society, by the State. On the ground of maintainability of the writ petition, no serious attempt is made from the side of the respondents to dislodge the petitioner on the said ground. In view of the allegations of the petitioner that finances of the Society are controlled by the Government, and the Government has got control on the administration of the Society also, this petition is maintainable. Even otherwise, when the first respondent- Society has framed bye-laws with regard to service conditions and disciplinary action against its staff members and when such bye-laws are violated, this court can certainly examine the same, in exercise of powers under Article 226 of the Constitution of India. Though it is alleged by the respondents that there is a remedy of appeal against the impugned order to the Board, but, it is to be noted that the writ petition was admitted in the year 2003 and after keeping the matter pending for more than about 5 years, it is not desirable to drive the petitioner, to avail the remedy of appeal at this point of time. As such, this court, after going through the entire material on record, is of the view that the petitioner is imposed the penalty of reversion of post based on the findings of the enquiry officer, without following the procedure and contrary to the principles of natural justice and fair-play. 13. For the aforesaid reasons, the punishment imposed on the petitioner is liable to be quashed. Accordingly, the order dated 22-11-2002, passed by the Managing Director of the first respondent- Society, reverting the petitioner from the post of Administrative Officer to Assistant Accounts Officer/Manager as a measure of punishment, is hereby quashed. Consequentially, the petitioner is entitled for all the benefits, including the difference in the pay and all other consequential benefits. 14. The writ petition is allowed as indicated above. No order as to costs. _______________________ R. SUBHASH REDDY, J December 30, 2009 MRR [1] 2002 (1) ALD 323 (DB) [2] AIR 1991 SC 1221