IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 9912 of 2004 Between: T.Sayee Kumar, S/o Anandaiah, R/o D.No.51-1-91 (C2), Kabadipalem, R.S.Road, Ongole. ..... PETITIONER AND 1 The Chief Engineer (O & M), APSPDCL, Vijayawada (A.C) 2 The Superintending Engineer (Operation Circle), APSPDCL, Ongole. .....RESPONDENTS 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 appropriate Writ, Order or direction one in the nature of Writ of Mandamus: (a) Declaring the proceedings dated 28-4-2004 of the Chief Engineer (O&M), APSPDCL, Vijayawada, 1st Respondent herein, as bad, illegal, arbitrary, without jurisdiction, void and consequentially set aside the same, (b) further direct the respondents to forthwith release all the terminal benefits of the petitioner Counsel for the Petitioner:MR.P.NARASIMHULU Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : ORDER: This writ petition has been filed seeking to issue Writ of Mandamus to declare the proceedings dated 28-04- 2004 of the 1st respondent-Chief Engineer (O&M), APSPDCL, Vijayawada, as bad, illegal, arbitrary, without jurisdiction and consequently direct the respondents to forthwith release all the terminal benefits of the petitioner. The case of the petitioner in brief is that he was initially appointed as Typist in the respondent Board and he was promoted from time to time. While so, a charge sheet dated 29-01-2002 was issued against the petitioner alleging that he was temporarily misappropriated certain funds of the Board and he submitted his explanation, admitting the charges leveled against him. Enquiry Oﬃcer conducted enquiry into the matter and submitted a report stating that the charges leveled against the petitioner were proved. The 2nd respondent, who is the disciplinary authority, has placed the petitioner under suspension on 05-07-2001, pending ﬁnalisation of the disciplinary proceedings. Thereafter, vide proceedings dated 11-11-2003, the 2nd respondent, after examining the enquiry report, explanation to the charge sheet and ﬁndings of the Enquiry Oﬃcer, issued a show cause notice stating that he had come to a provisional conclusion to impose punishment of postponement of two increments with cumulative eﬀect. After considering the explanation and observing the reasons put-forth by the petitioner, the 2 nd respondent imposed a punishment of postponement of one increment without cumulative effect, vide proceedings dated 25-11-2003. While the things stood thus, the petitioner applied for voluntary retirement on 24-09-2003 and he was permitted to retire from service voluntarily with effect from 30-11-2003. The main grievance of the petitioner is that though he was permitted to retire voluntarily, no terminal beneﬁts have been issued to him, but was issued a proceedings dated 28- 04-2004 stating that the 1st respondent has suo-motu come to a provisional conclusion to re-examine the case of the petitioner setting aside the punishment already awarded by the 2nd respondent and therefore called for explanation of the petitioner. Aggrieved by the same, the petitioner has come up with the instant writ petition stating that the proceedings dated 28-04-2004 is wholly illegal and unwarranted. The respondents have ﬁled a counter, inter alia, stating that the petitioner is allowed to retire voluntarily without prejudice to powers of APSPDCL to institute and ﬁnalise disciplinary proceedings contemplated under Rule 9 and subject to the provision in note (B) Rule 11(3) and under Rule 43 of A.P. Revised Pension Rules, 1980. It is also submitted that by proceedings dated 28-04-2004 the earlier punishment, withholding of one increment without cumulative eﬀect, has been cancelled and the respondent appellate authority has got powers under the Discipline Appeal Regulations to exercise its discretion and accordingly the proceedings dated 28-04-2004 was issued by the 1st respondent, who is superior authority to the 2nd respondent. Therefore, the 1st respondent has acted as per rules and regulations only and he got powers to re- examine the case of the petitioner setting aside the punishment already imposed by the 2nd respondent. Learned counsel appearing for the petitioner submits that the impugned order is not sustainable under law on the grounds that once the petitioner is permitted to retire voluntarily from the service, there is an end to the service condition and the petitioner is no more a servant of the respondents and there is no relationship of master and servant between the petitioner and the respondents. Therefore, the respondents have no authority to issue the impugned order. The respondents have not cited any rules under which the show cause notice has been issued, therefore, the same is without jurisdiction. In support of his contention he placed reliance in the case of C. SURENDER REDDY v. MANAGING DIRECTOR A.P. DAIRY DEVELOPMENT CO-OPERATIVE FEDERATION LTD., HYDERABAD [1] and submits that the relationship of the employer and the employee ceased after the retirement of the petitioner from the service. On the other hand, the learned standing counsel appearing for the respondents submits that the petitioner was conditionally permitted to retire from the service voluntarily. He further submits that the case referred by the learned counsel for the petitioner is not applicable, since the petitioner therein was retired after attaining the age of superannuation but in the case on hand the petitioner was conditionally permitted to retire voluntarily. It is also submitted that the superior authority has got powers under the provision 14(A)(i) of the Andhra Pradesh State Electricity Board to review any order passed or proceedings recorded by a subordinate authority to examine its legality, regularity or propriety either suo motu or on an application, and can call for the records relating to any order passed or proceedings recorded by a subordinate authority, and where the competent authority is satisﬁed that the order passed is due to inadvertence; or on account of false representation of facts before the concerned authority; or without hearing the party affected. In the instant case the 1st respondent is satisﬁed that the order of punishment awarded by the 2nd respondent is due to inadvertence. Therefore, the impugned order is in accordance with law and warrants no interference and the writ petition is liable to be dismissed. There is no dispute with regard to the fact of involvement of the petitioner in temporary misappropriation of funds of the respondent board and he faced the disciplinary proceedings. The main lis of this writ petition is whether the impugned order dated 28-04-2004 is sustainable under law. For better appreciation, it is necessary to excerpt the order dated 30-11-2003, permitting the petitioner to retire voluntarily, which reads as follows: “Without prejudice to the powers of APSPDL to ﬁnalise institute disciplinary proceedings pending contemplated under rule 9 and subject to the provision in note (B) below rule 11(3) and under rule 43 of A.P. Revised Pension Rules 1980 as adopted by erstwhile APSEB in BP MS.No.766 dt:12.9.80. Sri T.Sai Kumar U.D.Clerk / Sub-ERO/Kandukur is permitted to retire from service on voluntary on 30-11-2003 AN at his own request. The dues if any out standing in his name with interest there on shall be recovered in one lumpsum amount from his terminal benefits. The Assistant Accounts oﬃcer ERO Singarayakonda is requested to relieve Sri T.Sai Kumar, UDC on 30-11-2003 AN positively by making local arrangements and report compliance.” From the above it is obvious that the petitioner was conditionally permitted to retire voluntarily from the service, without prejudice to the powers of APSPDL to ﬁnalise and institute disciplinary proceedings. Here, it is also necessary to excerpt Section 14(A)(i) of the A.P. State Electricity Board, as under: “(A) Powers of revision/review: ( i ) An authority superior to the authority having powers of appellate jurisdiction as provided in regulation 13 and 14 above may, SUOMOTU or on application call for the records relating to any order passed or proceedings recorded by a subordinate authority examine its legality, regularity or propriety and pass such orders as it deems ﬁt conﬁrming, setting aside, modifying or revising the order or proceedings under consideration; where the competent authority is satisﬁed that the order passed is :- (a) Due to inadvertence; or (b) On account of false representation of facts before the concerned authority; or (c) Without hearing the party affected.” From the above it is clear that the appellate authority has got powers under the said provision to review the order already passed by the subordinate authority. In the impugned show cause notice dated 28-04-2004 it is categorically mentioned that in exercise of the powers conferred vide regulation 14(A)(i) of A.P.S.E.B. Discipline Appeal Regulations as adopted by A.P. TRANSCO/APSPDCL, the undersigned has reviewed the records and satisﬁed that the order passed by the SE/O/Ongole vide reference 13th cited, is due to inadvertence and hence kept aside. From a perusal of the case referred supra it is clear that the petitioner therein was retired on attaining the age of superannuation and no regulations, bye-law or rules were placed before the Court for continuation of such disciplinary proceedings. But in the case on hand, the petitioner herein is conditionally permitted to retire voluntarily from the service and in the impugned order, it is categorically mentioned that in exercise of the powers conferred vide regulation 14(A)(i) of A.P.S.E.B. Discipline and Appeal Regulations, as adopted by A.P. TRANSCO/APSPDCL, the earlier order, as is was found that the order passed by the SE/O/Ongole is due to inadvertence and the same was kept aside. Eventually, the learned counsel for the petitioner does not dispute the fact that the authority, who issued the impugned order, is having jurisdiction to issue the show cause notice. Having regard to the facts and circumstances of the case and since the impugned show cause notice dated 28-04- 2004 is issued as per the Regulation 14(A)(i) of A.P.S.E.B. and the learned counsel for the petitioner does not dispute the jurisdiction under the said provision, I am of the opinion that the impugned show cause notice does not suﬀer from any legal infirmity. The learned counsel for the petitioner submits that the petitioner is prepared to submit his explanation to the impugned show cause notice within a reasonable time and on submission of such explanation the respondents may be directed to pass appropriate orders within a reasonable time, since the petitioner’s terminal beneﬁts have not been finalised so far, due to pendency of the writ petition. Learned standing counsel appearing for the respondents agrees to the same. In view of the above, the writ petition is disposed of with the following direction: The writ petitioner is given liberty to submit his explanation within a period of two weeks from the date of receipt of a copy of this order and within a period of four weeks from the date of receipt of such explanation from the petitioner, the respondents are directed to pass appropriate orders, in accordance with law. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: 21-10-2008 LSK [1] 2004 (5) ALD 603