IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY NINTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE and HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT APPEAL Nos.1578 and 1618 of 2008 WRIT APPEAL No.1578 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the common order dated 30-10-2008 in W.P.No.13108 OF 2008 on the file of the High Court) Between: Koneru Lakshmaiah College of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, Rep. by its Chairman K. Satyanarayana, S/o. Late Lakshmaiah, Aged 52 years, R/o.29-36-38, Museum Road, Vijaywada, Krishna District. … APPELLANT AND 1. The Commissioner of Technical Education, Government of Andhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad. 2. The Government of Andhra Pradesh, rep. by its Principal Secretary to Government, Technical Education Department, Secretariat, Hyderabad. 3. S.G. Khan, S/o. Moula Saheb, R/o. Revendrapadu, Duggirala Mandal, Guntur District. … RESPONDENTS Counsel for the Appellants: Mr. M. Sudheer Kumar Counsel for Respondents Nos.1 and 2: G.P., Technical Education Counsel for Respondent No.3: Mr. P.S. Rajasekhar WRIT APPEAL No.1618 of 2008 Between: 1. Koneru Lakshmaiah College of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, Rep. by its Chairman K. Satyanarayana, S/o. Late Lakshmaiah, Aged 52 years, R/o.29-36-38, Museum Road, Vijaywada, Krishna District. 2. Koneru Lakshmaiah College of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, rep. by its Principal. APPELLANTS AND 1. The Commissioner of Technical Education, Government of Andhra Pradesh, BRKR Bhavan, Tank Bund Road, Hyderabad. 2. S.G. Khan, S/o. Moula Saheb, aged about 44 years, R/o. Revendrapadu, Duggirala Mandal, Guntur District. RESPONDENTS Counsel for Appellants: Mr. M. Sudheer Kumar Counsel for Respondent No.1: G.P., Technical Education Counsel for Respondent No.2: Mr. P.S. Rajasekhar The Court made the following: Common Judgment: (Per Hon’ble Sri Justice R. Subhash Reddy) As much as the issue involved in these appeals is inter- related, they are disposed of by this common judgment. 2. These two writ appeals, under clause 15 of the Letters Patent, are filed by the Management of Koneru Lakshmaiah College of Engineering, Vaddeswaram, Tadepalli Mandal, Guntur District, aggrieved by the common order dated 30-10-2008 passed by the learned single Judge in W.P.Nos.10291 and 13108 of 2008. 3. For sake of convenience, the parties are referred to as arrayed in W.A.No.1578 of 2008. 4. The third respondent was working as Electrical Maistry in the appellant-college. By initiating disciplinary proceedings on the proven misconduct of insubordination, negligence of duty, misappropriation of money etc., he was removed from service by order dated 09-02-2005. The third respondent has questioned the said order by way of appeal as provided under A.P. Education Act, 1982 (for short ‘the Act’). The appellate authority, i.e. the Commissioner of Technical Education, A.P., Hyderabad, by order dated 08-01-2008, allowed the appeal and set aside the order of removal passed by the appellant-college against the third respondent. The appeal was mainly allowed on two grounds, namely that the appointment of enquiry officer in disciplinary proceedings was not in conformity with Rule 7(2) of Andhra Pradesh Private Institutions Employees (Disciplinary Control) Rules, 1983 (for short ‘the Rules’) and also that the Management did not obtain prior permission of the competent authority as contemplated under Section 79 of the Act. 5. While W.P.No.10291 of 2008 is filed by the third respondent-employee seeking implementation of the directions issued by the appellate authority, whereas W.P.No.13108 of 2008 is filed by the appellant-college questioning the validity of the order passed by the appellate authority. By the impugned common order, the learned single Judge, while directing the appellant- college to implement the order passed by the appellate authority, rejected the writ petition filed by the appellant-college, to avail remedy of further appeal before the Government. Hence, these appeals by the appellant-college. 6. In these appeals, it is contended by Sri M. Sudheer Kumar, learned counsel for the appellant-college, that while entertaining the writ petition filed by the third respondent, the learned single Judge ought not to have relegated the appellant- college to avail the remedy of further appeal. It is submitted that there are no factual disputes at all and more particularly while entertaining the writ petition filed by the third respondent employee, the learned single Judge ought not to have relegated the appellant-college to avail further remedy of appeal. It is further submitted that the appellate authority has passed orders by misconstruing the provisions of the A.P. Education Act, 1982 and the rules made thereunder. It is further submitted that at no point of time during the process of enquiry or at any early stage the third respondent-employee has disputed the competency of the enquiry officer; as such it is not open for the third respondent-employee to raise such a plea at this stage. Even with regard to requirement of obtaining prior sanction as contemplated under Section 79 of the Act, it is submi9tted that though the appellant-college has applied for grant of such permission, but, however, the competent authority itself did not grant permission in view of the law declared by the Hon’ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka[1]. 7. On the other hand, it is contended by Sri P.S. Rajasekhar, learned counsel appearing for the third respondent-employee, that there is no reason for the appellant-college to approach this court without availing the alternative remedy of further appeal provided against the order dated 08-01-2008 passed by the appellate authority, i.e. Commissioner of Technical Education. It is submitted that in spite of the fact that there is a specific provision, under Rule 7(2) of the Rules, which obligates the appellant-college to appoint a person superior in rank of the establishment alone as the enquiry officer, but the appellant-college appointed an outsider as the enquiry officer and passed the order of removal, illegally. It is submitted that there is no illegality in the order dated 08-01-2008 passed by the appellate authority. It is further submitted that in view of the specific provision contained in the statute, i.e. the A.P. Education Act, 1982, itself, with regard to obtaining of prior permission, the order passed by the appellant-college removing the third respondent from service, without obtaining such permission, is rightly declared illegal by the appellate authority. 8. Against the third respondent, who was working as Electrical Maistry in the appellant-college, charges were framed with regard to insubordination, negligence of duty, misappropriation of money, damage to the property of the institution etc. He was charge-sheeted vide charge sheets dated 26-01-2004 and 29-07-2004. Thereafter, one Mr. M.V. Nageswara Rao, Retired Assistant Commissioner of Labour, Vijayawada, was appointed as enquiry officer to conduct enquiry into the charges leveled against the third respondent. At this juncture, it is to be noticed that when the enquiry was being conducted, at no point of time, the third respondent has raised an objection with regard to appointment of the enquiry officer. Even after conclusion of the enquiry, objections were called for with reference to the findings recorded by the enquiry officer. Even at that stage, the third respondent did not choose to raise any objection on the findings recorded by the enquiry officer. But, when an order of removal was passed, the third respondent has raised a ground, namely that the enquiry officer was not competent to conduct enquiry and his very appointment is contrary to Rule 7(2) of the Rules. 9. Learned counsel for the appellant-college has relied upon a judgment of this court in the case of Vivek Vardhini Education Society v. State of Andhra Pradesh and others[2]. In the aforesaid judgment rendered by a Division Bench of this Court, while examining the scope of Rule 7(2) of A.P. Private Institutions Employees (Discipline and Control) Rules, 1983, it is held as under: “If the charged officer had any reason to oppose the appointment of the advocate as the Enquiry Officer, he should have without any loss of time opposed his appointment and should have called upon the Management to appoint an officer superior in rank to the petitioner as Enquiry Officer. That is the first serious lapse on the part of the charged officer. It is pertinent to notice that even after disposal of the Writ Petition No.10508 of 1991 when the Management issued show-cause notice on 21-5-1993 to the charged officer, he did not raise this plea, though admittedly he chose to file his reply to that show-cause notice.” 10. Even in the present case also, it is to be noted that when an enquiry was being conducted by the enquiry officer appointed by the appellant-college, at no point of time the third respondent did object to the appointment of the enquiry officer. On the other hand, he participated in the enquiry and did not even choose to file any objection with regard to competency of the enquiry officer to conduct enquiry. However, belatedly, i.e. when final orders are passed removing him from service, such ground is sought to be raised. In view of the judgment referred above, which supports the case of the appellant-college, we are also of the view that having participated in the enquiry conducted by the enquiry officer without raising any objection, it is not open for the third respondent- employee to raise the plea that the appointment of the enquiry officer was not in conformity with Rule 7(2) of the Rules. While it was open to the third respondent-employee to raise such objection at the earliest point of time, having subjected to enquiry before the said authority, he cannot question either the competency or the findings recorded by the enquiry officer at this belated stage. But, at the same time, it is not dispute that as per the provisions under the A.P. Education Act, 1982, particularly, having regard to Section 79 of the said Act, no order of removal can be passed without obtaining prior permission from the competent authority, by the Management. Although it is stated that the Management has applied for grant of such permission, but fact remains that no such permission is granted by the competent authority. So long the provisions under Sections 79 and 80 of the A.P. Education Act, 1982 are not declared void by any court of competent jurisdiction and so long such provisions are operative, it is not open to the appellant-college to pass an order of removal of the third respondent-employee from service, without obtaining prior permission from the competent authority. On this ground, the order of removal passed by the appellant-college cannot withstand and the first appellate authority has rightly set aside the same, by recording such finding. Though, on behalf of the third respondent- employee, an objection is raised with regard to maintainability of the writ petition, we are of the view that as there are no serious factual disputes and further the third respondent’s writ petition is already entertained by the learned single Judge, it is not a case where the appellant-college can be relegated to avail further remedy of appeal against the order dated 08-01-2008 passed by the Commissioner of Technical Education. 11. As much as the order dated 08-01-2008 passed by the appellate authority is in operation, we do not find any valid ground to interfere with the directions issued by the learned single Judge in W.P.No.10291 of 2008 for implementation of the order dated 08- 01-2008 passed by the said authority. 12. For the foregoing reasons, W.A.No.1618 of 2008 is dismissed. W.A.No.1578 of 2008 is allowed in part confirming the order dated 08-01-2008 passed by the Commissioner of Technical Education only on the ground that the appellant-college has not obtained prior permission as required under Section 79 of the Act, before passing an order of removal. The findings recorded by the appellate authority, with regard to competency of the enquiry officer and the findings recorded by him, are set aside. Consequently, we permit the appellant-college to proceed further based on the findings recorded by the enquiry officer, after obtaining necessary permission from the competent authority as required under Section 79 of the A.P. Education Act, 1982. There shall be no order as to costs. __________________ ANIL R. DAVE, CJ. _______________________ R. SUBHASH REDDY, J. December 29, 2008 MRR [1] 2002 (8) SCC 481 [2] 2002 (1) ALD 323 (DB)