IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 4799 of 2006 Between: A. Lakshmaiah Chetty, S/o. A.V. Subbaiah, R/o. Door No.27/47, Peta, Kurnool. ..... PETITIONER AND Central Power Distribution Company of A.P. Ltd., Hyd, rep. by its Managing Director. .....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 issue an order direction or writ particularly one in the nature of writ of Mandamus or any other appropriate writ 1) declaring the Memo No.DS(per)/AS)per)/PO(DC)/Vol.III/579-C2/2001 dt. 10.11.2005 imposing the punishment of cut in pension by 100% including recovery of Rs.43,000/- is illegal and arbitrary (ii) declare that no disciplinary proceedings are pending as on the date of retirement on 31.8.2003 in view of the cancellation of memo No.DS(per) AS(per)/PO-C1/579/2001-4 dt. 26.10.2002 (iii) declare that the disciplinary proceedings initiated subsequent to retirement of the petitioner are null and void and without jurisdiction and consequently set aside the memo No.No.DS(per)/AS)per)/PO(DC)/Vol.III/579-C2/2001 dt. 10.11.2005 with further direction to release all the terminal beneﬁts to which the petitioner is entitled to including the pensionary benefit. Counsel for the Petitioner: MR.V.VISWANATHAM Counsel for the Respondents: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following ORDER: The petitioner joined the service of erstwhile A.P. Electricity Board as L.D.C. on 03.04.1969. He was promoted to various superior posts, and on 01.03.1993, he was promoted as Junior Accounts Oﬃcer (Cash) and was posted in the oﬃce of E.R.O. Kurnool. On 22.11.2001, he was transferred to the oﬃce of D.E. (Transformers Division) Kurnool. The Electricity Board has since been reconstituted and the petitioner became the employee of the A.P. Central Power Distribution Company Limited, the respondent herein. On receiving some complaints about the irregularities in the matter of remittances in Kurnool District, the respondent appointed one Sri B.Lingaiah, the Chief General Manager (Expenditure) of the Company as an Enquiry Oﬃcer under Regulation 10(2)(a) of the A.P.S.E.B. Employees Discipline and Appeal Regulations (for short ‘the Regulations’) to enquire into the allegations against 22 employees, including the petitioner. He was required to frame charges and submit a report after conducting enquiry. The Enquiry Oﬃcer, in turn, framed charges against the petitioner and other employees, vide memo, dated 07.03.2003. Thereafter, the respondent issued proceedings, dated 18.09.2003, appointing one Sri D.V.Ramana Murthy, retired District Judge as Enquiry Oﬃcer in the place of the Chief General Manager. Even this order was replaced by another order, dated 29.12.2003, appointing one Sri C.Rami Reddy, retired District Judge in the place of Sri D.V.Ramana Murthy. He proceeded with the enquiry and submitted his report on 16.12.2004 holding that the charges levelled against the petitioner and certain other employees are proved to the extent, indicated therein. The petitioner was issued a show cause notice, vide memo, dated 07.03.2003. He submitted his explanation on 27.04.2005 not only denying the charges, but also raising an objection as to the competence of the respondent, to appoint a non-employee of the company, as Enquiry Oﬃcer and the procedure adopted during the course of enquiry. On a consideration of the explanation, the respondent passed an order, dated 10.11.2005, imposing the punishment of cut in pension to the extent of 100% and directing recovery of an amount of Rs.43,000/- against the petitioner. The same is challenged in this writ petition. The petitioner contends that several irregularities have taken place in the matter, be it in the context of replacement of the Enquiry Oﬃcer, or the failure of the subsequent Oﬃcers to frame charges. It is contended that though speciﬁc objection was raised, on these aspects, at the relevant point of time, the same was not taken into account. It is stated that once the petitioner retired from service, the enquiry ought not to have been continued, particularly, when the charge sheet issued by the ﬁrst Enquiry Oﬃcer was cancelled by the respondent. The respondent ﬁled a counter-aﬃdavit narrating the circumstances that led to the initiation of disciplinary proceedings against the petitioner and appointment of successive Enquiry Officers, one after the other. It is contended that it is permissible under the service Regulations to appoint an outsider as an Enquiry Oﬃcer. The respondent contends that the petitioner was given ample opportunity in the departmental enquiry and the charges are proved beyond any pale of doubt. Sri Viswanatham, the learned counsel for the petitioner, submits that under Regulation 10 (2) (a) of the Regulations, it is only an Oﬃcer who is superior in rank to the delinquent employee, that can be appointed as an Enquiry Oﬃcer and not an outsider. He further contends that even otherwise, the charges framed by the Chief General Manager in his capacity as an Enquiry Oﬃcer were cancelled and thereafter, no charges were framed against the petitioner at all. He has urged certain other contentions also. Sri P.R.Bala Rami Reddy, the learned Standing Counsel for the respondent, on the other hand, submits that though the Regulation stipulates that an Oﬃcer, who is superior in rank to the delinquent employee shall be appointed as an Enquiry Oﬃcer, there is no prohibition against appointing an outsider as Enquiry Officer. He contends that subsequent Enquiry Oﬃcers had to be appointed on account of the fact that the Chief General Manager was not able to devote proper attention due to pressure of oﬃce work. He further submits that the charges framed by the ﬁrst Enquiry Oﬃcer would hold good for the enquiry and that the impugned order does not suﬀer from any illegality or infirmity. The respondent noticed certain ﬁnancial irregularities in the matter of remittances in the organization, in Kurnool District. The petitioner and 21 other employees were suspected to be responsible for the irregularities. The respondent contemplated a common enquiry against all the 22 employees. Accordingly, it appointed one Sri B.Lingaiah, the then Chief General Manager (Expenditure) of the company as an Enquiry Oﬃcer under Regulation 10(2)(a) of the Regulations. The Enquiry Oﬃcer was directed to frame the charges. Few months later, the Enquiry Oﬃcer framed charges against the respective employees, and indicated the basis therefor. Before any further steps could be taken by the Enquiry Oﬃcer, the respondent issued proceedings, dated 18.09.2003, appointing one Sri D.V.Ramana Murthy, retired District Judge, as an Enquiry Oﬃcer, duly cancelling his orders, dated 26.10.2002, under which the Chief General Manager was appointed as Enquiry Oﬃcer. It is pertinent to mention that newly appointed Enquiry Oﬃcer was required to frame appropriate charges against the delinquent employees. Proceedings, dated 18.09.2003, were also superceded by those, dated 29.12.2003, whereunder, Sri C.Rami Reddy, retired District Judge was appointed as an Enquiry Oﬃcer in the place of Sri D.V.Ramana Murthy. Here again, the Enquiry Oﬃcer was required to frame charges. The enquiry was proceeded with, by this Enquiry Oﬃcer, but on the basis of the charges framed by the Chief General Manager, Sri B.Lingaiah. The petitioner raised an objection as to the tenability of this procedure. Regulation 10 of the Regulations reads as under: 10. Procedure for imposing penalties: (1) No order imposing on a member of a service a penalty speciﬁed in items (i), (ii) and (iii) (v) or (ix) of regulation 5 shall be passed except after. (a) The member of the service is informed in writing by the authority competent to impose the penalty of the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken, and is given an opportunity to make any representations he may wish to make to such authority; and (b) Such representation, if any, is taken into consideration by the authority competent to impose the penalty. (2)(a) In every case where it is proposed to impose on a member of a service any of the penalties speciﬁed in items (iv), (vi), (vii) and (viii) in Regulation 5, the authority competent to impose the penalty shall appoint an Enquiry Oﬃcer, who shall be superior in rank to the person on whom it is proposed to impose the penalty, or shall itself hold an enquiry either SUO-MOTU or on a direction from a higher authority. In every such case the grounds on which it is proposed to take action shall be reduced to the form of deﬁnite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case…. From this, it becomes clear that it is only an oﬃcer of the respondent who is superior rank to the delinquent employee that can be appointed as an Enquiry Oﬃcer. In fact, the order, dated 26.10.2002, through which the Chief General Manager was appointed as Enquiry Oﬃcer accorded with the Regulation and the Enquiry Oﬃcer, in turn, framed the charges. For one reason or the other, the respondent intended to change the Enquiry Oﬃcer. In such an event, it could have chosen any Oﬃcer of the Company, who is superior in rank to the delinquent employees. How-so- ever learned, an individual can be, he cannot be treated as superior to an employee in an organization, unless he is part of that very organization. In several matters, this Court held that an outsider cannot be treated as superior or inferior and cannot be appointed as an Enquiry Oﬃcer, if the Regulation requires that an Oﬃcer who is superior rank to the delinquent employee can be appointed as an Enquiry Oﬃcer. The respondent appointed a retired District Judge, who, in turn, was replaced by another retired District Judge. This action of the respondent is contrary to the speciﬁc requirement under Regulation 10(2) (a) of the Regulations. Therefore, it is evident that a material irregularity has taken place in the matter of appointment of Enquiry Officer. Assuming that there is no illegality in the appointment of the Enquiry Oﬃcer, it needs to be seen as to how far it is competent for an Enquiry Oﬃcer to proceed on the basis of the charges framed by his predecessor. It has already been mentioned that the respondent had cancelled the order, through which, it appointed the Chief General Manager as Enquiry Oﬃcer. With the cancellation of the same, all the steps taken by the Enquiry Oﬃcer, including the one of framing charges come to an end. It was obviously for this reason that in the successive orders passed by the respondent appointing new Enquiry Oﬃcers, a speciﬁc stipulation was made to the eﬀect that the Enquiry Oﬃcer shall frame charges. Framing of charges is not an empty formality. The authority, vested with the power to frame charges is supposed to be acquainted with the allegations against the delinquent employees, and the basis for the same. The charges would reﬂect the gist of the allegations of misconduct. This exercise constitutes an important step in the disciplinary proceedings. In fact, the disciplinary proceedings commence only with the service of charge sheet. Admittedly, the subsequent Enquiry Oﬃcer did not frame any charge and he proceeded on the basis of the charges framed by the first one. The same is untenable. It is not as if that the petitioner did not raise these objections at the relevant point of time. In his detailed explanation, he has urged that an outsider cannot be appointed as an Enquiry Oﬃcer, that the subsequent Enquiry Oﬃcer did not frame the charges and that the entire disciplinary proceedings are vitiated. Despite the same, the respondent had inﬂicted the punishment on the petitioner, based on the report submitted by the Enquiry Officer. Another facet of the matter is that the petitioner stood retired from service on 31.08.2003. Though a charge sheet was issued against him on 07.03.2003, before his retirement, it stood cancelled with the proceedings of the respondent issued on 18.09.2003 and 29.12.2003. It is a diﬀerent aspect, as to whether the petitioner can now be proceeded against, on the basis of the allegations against him, in view of the developments, referred to above. For the foregoing reasons, the writ petition is allowed and the impugned order is set aside. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:23.07.2008 Note: L.R. copy to be marked. kdl ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{JGK}