IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 28013 of 2008 Between: 1 The Government of A.P rep.by its Secretary to Govt Finance & Planning(F.W.W.A.II) Dept Secretariat Buildings Hyderabad 2 The Director of Works Accounts Officer Govt of A.P M-3 Block 1st Floor Manoranjam Complex M.J Road Hyderabad ..... PETITIONER(S) AND A.Venkateswara Sarma retired as Divisional Accounts Officer Gr.II H.No.6-3-22/5/4 Flat No.204 Sri Sairam Parment prem Manager Khairatabad Hyderabad .....RESPONDENT 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 more particularly one in the nature of writ of of Certiorari calling for the records relating to the orders of the Hon'ble A.P Admn Tribunal Hyderabad passed in O.A No.1209/2008 dt 17-06-2008 as being erroneous illegal and unreasonable and quash the same and pass Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: . The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition is filed in the nature of a Writ of Certiorari to call for the records relating to the order-dated 17.6.2008 passed in O.A.No. 1209 of 2008 on the file of Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as being illegal and erroneous. The Tribunal by the impugned order allowed the O.A. and set aside the proceedings dated 6.5.2008 as the same are against the applicant in accordance with APCS (CC&A) Rules, 1991. O.A. was filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying as under: (a)declare that no disciplinary proceedings are pending against the applicant in accordance with APCS (CCA) Rules, 1991 and no disciplinary proceedings can be maintained and no disciplinary proceedings can be maintained and continued on an issue relating to the year 1994 (b) to further declare that the applicant is entitled for grant of SPP scale on completion o 16 years of service and promotion as Divisional Accounts Officer , Grade I as and when it was due to him and when such benefit was granted to his juniors and (c) consequently to direct the respondents to release all the retirement benefits including gratuity and full pension due and payable to him with 18% interest on the amounts due to him from the date of due till the date of payment with all consequential benefits.” Brief facts of the case are that applicant was working as a Senior Assistant and he was appointed as a Divisional Accounts Officer on 4.9.1987 and retired from service on attaining the age of superannuation on 31.8.2006 and no retrial benefits have been paid to the applicant till date except provisional pension. It is the further case that during the year 1994, while he was working as Divisional Accounts Officer, Grade II in Tribal Welfare Division, Bhadrachalam, certain allegations have been made with respect to the irregularities that took place in execution of bore well under Agricultural Rural Water Supply Scheme. He was served with Memo dated 11.4.2000, and the petitioners straight away referred the matter to the Commissioner of Inquiries, but nothing culminated after the matter has been referred to the Commissioner of Inquiries. Therefore, he has approached the Tribunal to declare that no disciplinary proceedings are pending against him in accordance with APCS (CCA) Rules and for release of pension and other benefits. The Tribunal found that the enquiry by the Commissioner of Inquiries and the subsequent show cause notice are not in accordance with APCS (CC &A) Rules, 1991 and mandatory provisions have not been followed and hence the said proceedings have to be declared as illegal and accordingly, set aside the same. It was also held that the applicant is entitled for all pensionary benefits to be released forthwith and it is always left open for the petitioners to proceed against the applicant. The learned Government Pleader contended that the respondent has participated in the inquiry and the Tribunal ought not to have allowed the O.A and the finding arrived at by the Tribunal is unjust and erroneous since the respondent has pursuant to the memo issued by the authorities submitted his defence and enquiry officer was appointed who submitted a report stating that the charges have proved and at that stage he has approached the Tribunal seeking to quash the entire proceedings and therefore, the relief itself is unwarranted and unjust. He further contended that once the applicant has participated and having not challenged in the beginning and invited report against him by the enquiry officer holding that the charges have been proved, the tribunal ought not to have granted relief. He has relied upon the judgment reported in STATE BANK OF PATIALA VS. S.K. SHARMA[1]. Paragraphs 31 and 32 of the cited judgment need to be noted and they read as hereunder: “Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground o aforesaid violation of sub- clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. 32. We may summarize the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory o substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this; procedural provisions are generally meant or affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ‘no notice’, ‘no opportunity’ and ‘no hearing’ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions, which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different and distinct principle. (4) (a) In the case of a procedural provision, which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B.Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice ---or, for that mater, wherever such principles are held to be implied by the very nature and impact of the order/action –the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between ‘no opportunity’ and no adequate opportunity, i.e., between ‘no notice’/ ‘no hearing’ and ‘no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latte case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a air hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)” On the other hand, the learned counsel appearing for the respondent-applicant vehemently contended that the memo is the basis for initiating the disciplinary proceedings on the employee and he has drawn our attention to Rule 20 of the Classification, Control and Appeal Rules. Rule 20(3) reads as under: “Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 21, (the disciplinary authority or the cadre controlling authority who is not designated as disciplinary authority and who is subordinate to the appointing authority can draw up or cause to be drawn up)— (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain; (a) a statement of all relevant acts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. He also drawn our attention to Part V, procedure for imposing penalties. Rule 20 (5) (c ), reads as under: “Where the disciplinary authority itself inquires into any article of charge or appoints a inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge.” He relied on the judgment reported in NAR SINGH PAL VS. UNION OF INDIA AND OTHERS[2]. We have perused the entire material made available on record. The disciplinary proceedings begins from the issuance of the charge memo but there is no charge memo indicating the charges and the allegations levelled against him and also the list of witnesses so as to substantiate the allegations made against the respondent herein. The delinquent employee will have valuable right to examine the witnesses. These things are missing in this case. In NAR SINGH PAL VS. UNION OF INDIA AND OTHERS (supra-2) the Supreme Court at paragraph 13 held as under: “The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchment compensation was paid to him. They intended to say that once retrenchment compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchment. This, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the “temporary” status after having put in ten years of service. Like any other employee, he had to sustain himself, or, may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meager amount of Rs. 6,350/-, was utilized by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.” Under those circumstances, the Tribunal has rightly proceeded with the matter holding that the consequential enquiry by the Commissioner of Inquiries and the subsequent show cause notice are not in accordance with APCS (CC &A) Rules, 1991 and mandatory provisions have not been followed and hence, the said proceedings have to be declared as illegal and accordingly set aside and the applicant is entitled for all pensionary benefits to be released forthwith. It left open for the petitioners herein to proceed against the applicant in accordance with Rules, if they so desire. Therefore, we see no error in the order impugned in this Writ Petition warranting interference by this Court in exercise of powers under Article 226 of the Constitution. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ B. SESHASAYANA REDDY, J Dt. 24.12.2008 KA ------ REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2CD copies [1] AIR 1996 SUPREME COURT 1669 [2] (2000) 3 SUPREME COURT CASES 588