*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +Writ Petition No.2572 of 2008 % 01.04.2008 Between: R. Venkatarajau and others, …Petitioners AND The Government of A.P., rep. by its Principal Secretary, Higher Education Department, Hyderabad, and others. .....Respondents ! COUNSEL FOR PETITIONERS: Sri M. Panduranga Rao ^ COUNSEL FOR RESPONDENTS: G.P. for Higher Education & Sri Chidambaram < Gist: > Head Note: ? CITATIONS: 1) (2003) 5 SCC 200 2) 2006 (2) ALT 264 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2572 of 2008 Between: 1 R. Venkataraju, S/o. Rajamraju, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 2 S. Satyanarayana, S/o. Narsimhulu, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 3 M. Ramakrishnam Raju, S/o. Nagaraju, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 4 A. Dharma Rao, S/o. China Satyanarayana Murthy, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 5 R.V. Subba Raju, S/o. Ramaraju, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 6 R. Ramesh Babu, S/o. Narasimha Raju, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. 7 Ch. Suryanarayana Raju, S/o. Venkata Narsimha Raju, Col. DS Raju Polytechnic, Poduru R/o. Poduru, West Godavari District. ..... PETITIONER(S) AND 1 The Government of Andhra Pradesh, Rep. byits Principal Secretary, Higher Education Department, Secretariat, Hyderabad. 2 The Commissioner & Director of Technical Education, Burgula Ramakrishna Rao Bhavan, Hyderabad. 3 The All India Council for Technical Education, Rep. byits Chariman, Indira Gandhi Sports Complex, IP Estate, New Delhi -02. 4 Col. D.S. Raju Polytechnic Rep. by its Secretary & Correspondent, Poduru, West Godavari District. 5 C. Nageswara Rao, FAC, Col. Ds Raju Polytechnic, Poduru, West Godavari Distric .....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 issue a writ order or direction particularly one in the nature of Mandamus, declaring the order passed in Letter NO. E3/19589/2005, Dated 26-01-2008 on the file of the Commissioner of Technical Education, Andhra Pradesh, Hyderabad, and being in violation of principles of natural justice is therefore, void and pass Counsel for the Petitioner: MR.M.PANDURANGA RAO Counsel for the Respondent No.: GP FOR HIGHER EDUCATION The Court made the following : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No. 2572 of 2008 JUDGMENT: The petitioners are the employees of various categories, working in Col. D.S. Raju Polytechnic, Poduru, West-Godavari District, the 4th respondent herein (for short ‘the Institution’). The institution was admitted to grant-in-aid. Disciplinary proceedings were initiated against the petitioners on a report submitted by the Principal, Full Additional Charge, the 5th respondent herein, on 09-09-2005. The petitioners were placed under suspension vide orders dated 27-10-2005. Several developments have taken place, and ultimately, the Inquiry Officer submitted report dated 14-02-2006. The same was placed before the Executive Committee of the Management, and show-cause notice was issued to the petitioners, as to why suitable disciplinary action shall not be taken against them, on the basis of the findings of the Inquiry Officer. Explanations were also submitted. As required under Section 79 of the A.P. Education Act, 1982 (for short ‘the Act’) the Management of the Institution approached the Commissioner and Director of Technical Education, the 2nd respondent herein, for prior approval. Through his letter dated 26- 01-2008, the 2nd respondent accorded approval. The same is challenged in this writ petition. It is urged that the 2nd respondent was under obligation to hear the petitioners before according approval, and since such an opportunity was not given, the proceedings are liable to be set aside. Other contentions are also urged. Counter-affidavits are filed on behalf of the Institution. The various allegations made by the petitioners are denied. According to them, it is not necessary for the 2nd respondent to issue notice to the petitioners before according approval, under Section 17 of the Act. Sri M. Panduranga Rao, learned counsel for the petitioners submits that the very initiation of disciplinary proceedings against the petitioners is untenable, and that the 2nd respondent is under obligation to issue notice to the petitioners before the approval was accorded, particularly, when he happens to be the appellate authority under Section 80 of the Act. He contends that the suspension of the petitioners, beyond the period, stipulated under Section 79 of the Act; cannot be sustained in law. He places reliance upon the judgment of the Supreme Court in Secretary, School Committee, Thiruvalluvar v. Government of Tamil Nadu[1] and the judgment of this Court in Ch. Suryanarayana Raju v. Government of A.P.[2]. Learned Government Pleader for Higher Education and Sri Chidambaram, learned counsel for the Institution, submit that the Act does not impose any obligation on the 1st respondent to issue notice, at the stage of according approval, under Section 79 of the Act. They contend that the nature of powers to be exercised by the 1st respondent, under Section 79, on the one hand, and Section 80, on the other hand, is different. Petitioners assail the letter dated 26-01-2008, issued by the 2nd respondent, according approval for the continuance of the disciplinary proceedings against them and the proposed action. It is not necessary to delve in detail, into the circumstances that led to the initiation of proceedings against the petitioners. Suffice it to say, that charges were framed and after receiving explanation from the petitioners, Inquiry Officer was appointed, who, in turn, submitted a report. First proviso to Section 79 (1) of the Act mandates that no order of dismissal, removal, reduction in rank, shall be passed against the employees of private educational institutions, without the prior approval of the authority. It is not in dispute that the 2nd respondent is the authority, prescribed under Rule 3 of the A.P. Private Institutions Employees Disciplinary Control Rules, 1983 (for short ‘the Rules’) for discharging functions under Sections 79 and 80 of the Act. He accorded permission, on being satisfied that there existed material for the Management of the Institution, to proceed against the petitioners. The contention advanced on behalf of the petitioners is, that the 2nd respondent happens to be an appellate authority, against an order of dismissal, removal etc., under Section 80 of the Act, and that he cannot accord approval for disciplinary proceedings. They plead that the grant of approval by the 2nd respondent would amount to pre-determination of the issue, and that the 2nd respondent ought to have heard them, before according approval. Almost identical situation had arisen in Secretary, School Committee, Thiruvalluvar v. Government of Tamil Nadu (1 supra). The equivalent of Section 79 of the Andhra Pradesh Act is Section 22 of the Tamil Nadu Act. The provision of appeal, equivalent to Section 80 of the Act is contained in Sections 23 and 24 of the Tamil Nadu Act. In that case, the competent authority refused to accord permission for the proposed action of termination of an employee. The matter was pursued by the management of the private educational institution. The contention of the management was that the competent authority was not supposed to deal with the adequacy or proportionality of the punishment sought to be inflicted on the employee at the stage of according permission, since such a course would amount to exercise of appellate powers. Dealing with the submission, the Supreme Court held as under: Para 11: Stand of the learned counsel for the management is that if adequate and reasonable grounds exist for the action then no other question needs to be looked into. This argument overlooks a vital aspect that the adequacy and reasonableness of grounds are relatable to the proposals for the enumerated actions. The proposed actions being punishments, there is an inbuilt requirement to see whether the quantum of punishment commensurates with the gravity of the proved charges. Therefore, clearly the authority has jurisdiction to decide the question as to whether the punishment proposed commensurates with the proved charges. One of the related pleas was that if the quantum of punishment is permitted to be considered, it would partake the character of an appeal. This plea is equally untenable. Sections 22 and 23 operative in different fields. At the stage of consideration under Section 22, the teacher does not get any opportunity for presenting his side of the case. This opportunity is provided under Section 23 or Section 24, as the case may be. The authority under Section 22 takes decision on the material placed before it by the management. So the question of action under Section 22 partaking appellate characteristics does not arise. Two answers emerge from the paragraph extracted above: The first is that the decision to accord approval for the proposed punishment needs to be taken on the material placed by the management before the authority, and the question of issuing notice to the employee does not arise. The second is that grant of approval cannot be equated to the appellate power. In the instant case, the 1st respondent was satisfied about the procedure followed in the domestic enquiry, as well as the punishment proposed to be inflicted upon the petitioners. From this, it cannot be said that he has made up his mind, or that it would have any effect at the stage of appeal. Therefore, no illegality can be said to have committed through the impugned order. A word needs to be said, about the stage at which, the approval can be accorded. The proviso to Section 79 simply mandates that the order of dismissal, removal or reduction in rank, shall not be passed, except with the prior approval. Depending on the facts and circumstances of the case, the approval can be accorded, either before the actual order of dismissal, removal or reduction in rank is passed, or after the same is passed. However, it must be only after the conclusion of the domestic enquiry, submission of the report of the inquiry officer, and examination of the matter by the appointing authority, indicating its mind about the proposed action. In the instant case, the approval was accorded before the actual order, inflicting any punishment on the petitioner; was passed. The management issued show cause notices to the petitioners, and simultaneously approached the 1st respondent for approval. Now, that the approval has been accorded, the management can be required to issue fresh show cause notice. Serious objection is raised on behalf of the petitioners, for their continued suspension, beyond the period stipulated under sub-section (2) of Section 79 of the Act. The same question has been examined in W.P.No.28180 of 2005, filed by the 7th petitioner, in relation to these very proceedings. After discussing the scope of Section 79 of the Act, certain directions were given. In as much as the disciplinary proceedings are nearing completion, this Court does not intend to pass any independent orders, in this regard. On the other hand, specific directions need to be issued, as regards the conclusion of proceedings. Hence, this writ petition is dismissed. The 4th respondent is directed to issue fresh show cause notices to the petitioners about the proposed punishment, within ten days from today, and the petitioners, in turn, shall submit their explanations within fifteen days thereafter. The 4th respondent shall pass final orders within a period of two weeks, from the last date, stipulated for submission of explanations. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J. Dt: 01-04-2008. Note: L.R. copy to be marked. KO* To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS} [1] (2003) 5 SCC 200 [2] 2006 (2) ALT 264