IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.3285 of 2000 Between: V.Ashok Kumar, S/o.D.K.V.Balram, R/o.H.No.6-3-3/2, Opp: Government Degree College, Ellandu 'X' Roads, Khammam District. ..... PETITIONER AND 1 The A.P.Transco Ltd., (APSEB), Rep. by its Manaing Director, Vidhyth Soudha, Somajiguda, Hyderabad. 2 The A.P.Transco Ltd., Rep.by its Chief Engineer/Electricity (Disciplinary Cases), Hyderabad Zone, Vidyuth Soudha, Somajiguda, Hyderabad. 3 The A.P.Transco Ltd., Rep.by its Superintending Engineer (Operation Circle), Nalgonda. .....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 may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings issued by the 3rd Respondent in Memo.No.SE/OP/NLG/ADM/D.No.284/97, dated 14-5- 1997, confirmed by the 2nd Respondent in Memo.No.CEE/HZ/PRSL/P2/F.44/93/D.No.59/98, dated 20-5-1998 and also proceedings of 1st Respondent in rejecting the Appeal of the petitioner in Memo.No.CE/DC/DM-XX/752/NB1/98-2, dated 17-4-1999 as arbitrary, mechanical, illegal, unjust, contrary to law, in violation of principles of natural justice, contrary to material on record, in violation of Regulations,perverse and also violative of Articles 14 & 21 of the Constitution of India ; and consequently setting - aside the impugned proceedings,grant the relief to the petitioner with all benefits and pass such other order or orders. Counsel for the Petitioner:MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.3285 of 2000 ORDER: This writ petition is filed by the Lineman working in A.P.TRANSCO challenging the order, dated 14-05-1997, passed in Memo No.SE/OP/NLG/ADM/D.No.284/97, by the Superintending Engineer, Operation Circle, Nalgonda-3rd respondent, and the order, dated 20-05-1998, passed in Memo No.CEE/HZ/PERSL/P2/F.44/93/D.No.59/98, by the Chief Engineer/Electricity, Hyderabad Zone, Hyderabad-2nd respondent. While the petitioner was working as Lineman at Suryapet in Nalgonda District, disciplinary proceedings were initiated against him by issuing charge-sheet, dated 08-12-1995. Charges framed against the petitioner in the disciplinary proceedings read as under:- CHARGE No.1:- Sri V.Ashok Kumar, Lineman (U/S) is reported to have run Karate School in his house premises near Government Degree College, Khammam, under name and style “School of Marshal Arts Karate” while he was in service as Lineman in Board in Suryapet sub-station since 11-01-1989. He thus violated Regulation No.4 (ix) of Conduct Regulation, failed to uphold absolute integrity expected from him and committed Misconduct as per A.P.S.E.Board (Revised) Conduct Regulations. CHARGE No.II Sri V.Ashok Kumar LM (U/s) is reported underwent LMTC training at Warangal from 13-03-1989 to 27-03-1989 in between absented himself from LMTC training Centre Warangal and presented himself at Karate School near Government Degree College grounds Khammam, on 24-03-1989 during evening hours where there reported attack by himself with others on Sri Purohit Deepak Singh, succumbed later, during later hours of evening of 24th March, 1989. Thus he violated set of disciplined behaviour, indulged in unbecoming acts – thus shattered the image of Board before public apart from failure to uphold absolute integrity expected from him and Committed Misconduct as per APSE Board (Revised) Conduct Regulations. CHARGE No.III Sri V.Ashok Kumar LM (U/s) is reported to have not taken prior permission to be absent – thus absconded from duty nor did he report to duty, soon on completion of LMTC training held between 13- 03-1989 to 27-03-1989 at Warangal, he having absented himself at Training Centre on 27-03-1989. He did not perform any duty since 28-03-1989. He thus indulged in unauthorized absence besides being not dutiful and deviated from the disciplined attendance of training and duties. Thus, he did not uphold absolute integrity expected from him and committed Misconduct as per APSE Board (Revised) Conduct Regulations.” When the petitioner had filed explanation denying the charges, a regular enquiry was conducted by appointing an Enquiry Officer. The Enquiry Officer, who conducted enquiry, had submitted a report by recording a finding that charge Nos.1 and 2 are not proved. So far as charge No.3 is concerned, it was held that absence of the petitioner from service from 30-03- 1989 to 04-04-1989 (six days) is unauthorized as he did not obtain prior sanction from the competent authority. In view of the findings recorded by the Enquiry Officer, by issuing further show-cause notice, the disciplinary authority had passed final order, dated 14-05-1997, in Memo No.SE/OP/NLG/ADM/D.No.284/97, by imposing punishment of (1) stoppage of two increments with cumulative effect, (2) treating the period of suspension as suspension only and (3) unauthorized period of absence as “dies-non”. Though the petitioner availed the remedy of departmental appeal as per the Regulations before the Chief Engineer/Electricity, Hyderabad Zone, Hyderabad, he was unsuccessful. After dismissal of the appeal, he also made another attempt turning it as a Second Appeal, but the same was rejected on the ground that there was no provision for such Second Appeal. Hence, the present writ petition. Heard Sri A.K.Jayaprakash Rao, learned counsel for the petitioner and Sri P.R.Balarami Reddy, learned Standing Counsel for the respondents. Learned counsel for the petitioner submits that the petitioner, after completing his LMTC training at Warangal on 27-03-1989, had reported to duty on 28-03-1989 to the Additional Assistant Engineer, Suryapet, but he was not allowed to work on the ground that he did not obtain relief report from the training authority at Warangal. As per the instructions of the Additional Assistant Engineer for obtaining relief report, he left the headquarters by reporting the matter to the immediate superior authority. It is submitted that he applied leave up to 04-04-1989, and in spite of the same, the disciplinary authority had imposed punishment without recording any valid reasons. He further submitted that the punishment imposed against the petitioner is shockingly disproportionate to the gravity of the charges, inasmuch as the Enquiry Officer had already recorded a finding that the petitioner had informed about his leaving the Station. In that view of the matter, the punishment of stoppage of two increments with cumulative effect, treating the period of suspension as suspension only and unauthorized period of absence as “dies-non” is unwarranted. In support of his contention, he placed reliance on the judgments of the Hon’ble Supreme Court in B.C.CHATURVEDI Vs. UNION OF INDIA[1] and CANTONMENT EXECUTIVE OFFICER AND ANOTHER Vs. VIJAY D.WANI AND OTHERS[2] On the other hand, Sri P.R.Balarami Reddy, learned Standing Counsel appearing for the respondents submits that though the petitioner had reported to duty and applied for grant of leave, there was no prior sanction of leave. As such, the petitioner was unauthorizedly absent from duties. Basing on the findings recorded by the Enquiry Officer, the disciplinary authority had passed the order, dated 14-05-1997, imposing punishment. In this case, it has to be noted that the petitioner was working as a Lineman at Suryapet and he was sent for (LMTC) training to Warangal. Even, as per the findings recorded by the Enquiry Officer, it is clear that after completion of training on 27-03-1989, he had reported to the Additional Assistant Engineer on 28-03-1989. When the Authority at Suryapet had asked to get relief report from the training authority, again he went back to Warangal and obtained relief report and reported to the duty. Further, even as per the findings recorded by the Enquiry Officer, the petitioner had applied leave up to 04-04-1989 but the fact remains that the said leave was not prior sanction on the application submitted by the petitioner. As such, it cannot be said that he was on leave. Merely intimating the superior authority the petitioner had left on his own without prior sanction of leave from the competent authority, which was empowered to grant leave. In that view of the matter, it cannot be said that he has not committed any misconduct. But, at the same time, it has to be noted that it is a case where the petitioner had reported and applied for leave and proceeded on his own without prior sanction. Such of the cases are different and distinct from the cases where unauthorized absence is without any intimation to the higher authority. Having regard to the nature of misconduct, which is evident from the findings recorded by the Enquiry Officer, this court is of the view that the punishment imposed on the petitioner is shockingly disproportionate to the gravity of the charges. The disciplinary authority had not only imposed punishment of stoppage of two increments, but also ordered to treat the period of suspension as suspension only and that unauthorized period of absence as “dies-non”. In B.C.Chaturvedi’s case (1 supra), the learned Judges of the Bench, while concurring with the majority view, had taken a view that in appropriate cases High Court also can modify the punishment in cases where punishment imposed is disproportionate to the gravity of the charges. In Cantonment’s case (2 supra), the Hon’ble Supreme Court, while approving the judgment of a Division Bench of the Bombay High Court, held that it would not be fair to permit the respondent to proceed afresh in the matter after a lapse of more than 16 years. Admittedly, in the present case, it has to be noted that after confirmation of the order of the disciplinary authority, dated 14-05-1997, by the appellate authority, this writ petition is filed in the year 2000 and the same is pending before this court nearly for more than eight years. Although in normal course the matter is to be remitted back for fresh consideration of the punishment to be imposed on the petitioner, but in view of the judgment of Hon’ble Supreme Court in the case of B.C.Chaturvedi (1 supra), and further, taking into account the fact that this writ petition is pending in this Court for quite a long time, this Court is of the view that, in the interest of justice, the punishment imposed on the petitioner be modified. Accordingly, the order of the disciplinary authority, dated 04-05-1997, passed in Memo No.SE/OP/NLG/ADM/D.No.284/97, as confirmed by the appellate authority in the order, dated 20-05-1998, passed in Memo No.CEE/HZ/PERSL/P2/F.44/93/D.No.59/98, is set aside only to the extent of imposing punishment of “dies-non”. It is clarified that the direction of stoppage of two increments with cumulative effect and treating the period of suspension as suspension is confirmed. The order of the disciplinary authority, as confirmed by the appellate authority, is modified to the extent indicated above. The petitioner is entitled for all consequential benefits in view of the modification of punishment of “dies-non”. The writ petition is partly allowed to the extent indicated above. There shall be no order as to costs. ___________ 18-02-2009 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KRD} [1] 1996 LAB.I.C..462 [2] (2009) 1 Supreme Court Cases (L&S) 152