THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.A.No.1124 of 2005 ORDER: (Per the Hon’ble Sri Justice Ghulam Mohammed) This writ appeal is preferred by the Andhra Pradesh Cooperative Oil Seeds Growers Federation Limited challenging the correctness of the judgment rendered by the learned single Judge who allowed the writ petition instituted by the 1st respondent – employee herein challenging the punishment of dismissal from service imposed on him on 23.2.1998. The relevant facts are that the respondent – writ petitioner was recruited as a Chemist in the service of the appellant corporation on 12.4.1991. He was placed under suspension on 31.12.1992 pending enquiry into certain grave charges of misappropriation of funds of the federation along with the Area Officer, Naidupet. Based upon the findings recorded, the order of punishment has been imposed dismissing him from service. Learned single Judge has found fault with the entire exercise on various counts. Firstly, the learned single Judge found that there is no evidence collected against the writ petitioner for one to hold him guilty of the misconduct alleged against him. No oral enquiry was conducted by the Enquiry Officer. Consequently, there was no opportunity or occasion for the writ petitioner to cross- examine any such witnesses who are willing to depose against the writ petitioner. The Enquiry Officer has merely called the delinquent officers one after the other, put certain questions to him and recorded thereafter the answers furnished by the said employee and based thereon concluded the entire issue. Apart from this glaring procedural infirmity, strikingly no witness has been examined to speak about the entries in the stock register. Copies of the said stock register have not been furnished to the writ petitioner. Therefore, the learned single Judge has come to a conclusion that there is no evidence on record available against the writ petitioner. It is also found by the learned single Judge that the accounts have not been properly maintained. The disciplinary authority has acted unilaterally in disagreeing while recording his disagreement with the findings recorded by the Enquiry Officer. The disciplinary authority has not provided any opportunity to the writ petitioner to show-cause as to why the findings of the Enquiry Officer to the extent that they are in his favour can be absurd. Learned single Judge has rightly placed reliance upon the principle enunciated by the Supreme Court in Punjab National Bank v. Kunj Behari Misra[1] and State Bank of India v. K.P.Narayanan Kutty[2] and came to the conclusion that the action of the disciplinary authority in unilaterally disagreeing with the findings of the Enquiry Officer to the extent that they are in favour is bad in law. Shockingly the Area Officer has been let off and reinstated into service while the writ petitioner has been subjected to grave penalty of dismissal from service. In those circumstances, the writ petition was allowed. Heard the learned counsel for the appellant as well as learned counsel for the writ petitioner. Learned counsel for the appellant except reiterating the same contentions that were canvassed on behalf of the appellant before the learned single Judge, could not satisfy us as to why the learned judge has erred in applying the principle enunciated by the Supreme Court in Punjab National Bank v. Kunj Behari Misra (supra 1) and State Bank of India v. K.P.Narayanan Kutty (supra 2). It is fundamental principle of law that before a person is condemned, he should be provided an opportunity of hearing. The disciplinary authority has acted unilaterally in the matter of disagreeing with the findings of the committee of officers appointed by the disciplinary authority for the said purpose. Further, when an appeal has been preferred against the orders of the disciplinary authority, the appellate authority being a multi member body has also included the Managing Director of the Corporation itself. Consequently, the order passed by the appellate authority is ex facie illegal. The Managing Director would not have participated in the deliberations when the appeal preferred by the writ petitioner has been taken up, inasmuch as the subject matter of consideration by the appellate authority is the validity of the order passed by himself. Participation of the disciplinary authority in the proceedings of the appellate authority has clearly vitiated the entire the exercise. It is as bad as one sitting in appeal over an order of himself. Even on merits, learned counsel for the appellant could not demonstrate with reference to any material available on record as to how the writ petitioner can be said to be guilty of the misconduct attributed against him. In the absence of any material to hold one guilty of the charges, it can at best be remanded back to the disciplinary enquiry to be conducted afresh instead the Managing Director has proceeded to finalise the disciplinary enquiry by disagreeing with the findings of the Enquiry Officer. We are not in a position to agree with the contentions canvassed by the learned counsel for the appellant inasmuch as learned single Judge has applied the appropriate principles for his conclusions in the matter. The appeal is therefore meritless and it is accordingly dismissed. But, however, without costs. --------------------------- Ghulam Mohammed, J --------------------------------- Nooty Ramamohana Rao, J knk 22nd December 2011 [1] AIR 1998 SC 2713 [2] (2003) 2 SCC 449