*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +Writ Petition No.15154 of 2007 % 01.08.2008 Between: S.K. Masthan ..... Petitioner AND The Southern Power Distribution Company of A.P. Ltd., and others .....Respondents ! COUNSEL FOR PETITIONER: Sri B.A. Prakash Reddy ^ COUNSEL FOR RESPONDENTS: Standing Counsel < Gist: > Head Note: ? CITATIONS: 1) 2005 (3) ALD 522 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.15154 of 2006 ORDER: The memo dated 02-09-2006, through which the Superintending Engineer (Operation) Southern Power Distribution Company Limited, Nellore, the 3rd respondent herein, imposed the punishment of reversion to a lower category, and treating the period of absence as dies non; is challenged in this writ petition. The petitioner was initially appointed as Junior Assistant. He was promoted as Senior Assistant (UDC), and thereafter, as Junior Accounts Officer, on 13-07-2004. He was placed under suspension vide memo dated 04-01- 2005, by the 3rd respondent, on the basis of certain news items, alleging financial irregularities on the part of the petitioner. An Inquiry Officer was appointed on 06-01- 2005, who, in turn, issued a charge-sheet. The petitioner is alleged to have committed several financial irregularities and the details thereof, were mentioned in the charge-sheet. The petitioner submitted his explanation, and the Inquiry Officer conducted departmental inquiry. The charges framed against the petitioner were held proved. Accepting the report of the Inquiry Officer, the 3rd respondent issued a show cause notice, proposing the punishment, and thereafter, passed the impugned order. The appeal presented against the same was dismissed by the Appellate Authority. The petitioner contends that the initiation of disciplinary proceedings itself was vitiated, on account of the fact that a vague and uncertain report by an agency, without calling for the records of the petitioner, was taken as the basis. It is alleged that the appointment of an Inquiry Officer, even before charges were framed, is untenable in law. It is complained that the report, which constituted the basis for the disciplinary proceedings, was not furnished to the petitioner. The petitioner also submits that the findings of the Inquiry Officer cannot be sustained, and are not supported by any material. The petitioner further contends that though the charges were in relation to certain aspects of accounting, punishment was imposed as regards the period of absence. The respondents filed counter-affidavit, justifying the impugned memo. It is stated that appointment of the Inquiry Officer was under Regulation 10 of A.P State Electricity Board Service Regulations, and it is competent for an Inquiry Officer, by himself, to frame charges. It is stated that the petitioner was given ample opportunity to defend himself, and the charges against him were held proved. They further plead that the punishment imposed against the petitioner is strictly in accordance with the Service Regulations. Sri B.A. Prakash Reddy, learned counsel for the petitioner, submits that the respondents have victimized the petitioner for the lapses on the part of the other employees. He contends that though the preliminary investigation report constituted the basis for disciplinary proceedings, it was not furnished, in spite of repeated requests. Learned counsel raises an objection for the appointment of Inquiry Officer, before the charge-sheet is served upon the petitioner. He submits that the direction to treat certain period of service of the petitioner, as dies non; is outside the scope of the disciplinary proceedings. Learned Standing Counsel for the respondents, apart from reiterating the contents of the counter-affidavit, submits that the charges against the petitioner were proved, and a proportionate punishment is inflicted. The initiation of disciplinary proceedings against the petitioner was preceded by an item in the daily newspapers, and preliminary investigation by the General Manager. The substance of the charge against the petitioner is that, the amounts paid by consumers, in the office of the ERO/Kovvur, have been booked twice to the same services, resulting in financial loss to the distribution company. The various instances of such irregularities were mentioned in the charge-sheet. The petitioner, in turn, submitted his explanation, contending mainly that he was not responsible for booking the charges to the accounts of the respective consumers. It is also stated that an error in the accounting was magnified, and he is penalized, with an ulterior motive. He attributed much of the inconsistencies, or lapses, to the programming in the computers. The departmental inquiry was conducted and the punishment, as mentioned above, was inflicted. The first objection raised on behalf of the petitioner is, as to the appointment of Inquiry Officer, even before the charge-sheet was served, and the framing of charges by the Inquiry Officer, himself. Normally, the appointment of an Inquiry Officer is resorted to, only when an employee is served with charge-sheet, and the explanation offered by him is not found satisfactory. A Division Bench of this Court, in Ch. Appala Reddy, v. Eastern Power Distribution Company Limited, to which I am a party, has discussed the law on this aspect. In fact, the very Rule, which applies to the instant case, fell for consideration. However, in his explanation either to the initial show cause notice, or to the second show cause notice, the petitioner has raised any objection, on this aspect. Further, in his memorandum of appeal, dated 05-12-2006, the petitioner did not make any grievance, out of it. The mere fact that the Inquiry Officer framed charges cannot be said to have resulted any serious prejudice, warranting annulment of the entire proceedings. The second ground urged by the petitioner is, that he was not supplied with the report of the General Manager, who conducted the preliminary inquiry. It is no doubt true, that reference was made to the same, in the charge memo. However, the charges were framed independently, and as regards each charge, the basis of allegation was mentioned. The finding of the inquiry officer did not rest upon the preliminary inquiry. It is not uncommon, that any disciplinary proceedings would precede allegation by the aggrieved parties, or detection, by a superior authority, of any lapses, on the part of the concerned employee. What becomes relevant, in the actual disciplinary proceedings, is the charge, and the material relied upon by the employer and proof of the same. Any preliminary information, that is received or collected by an employer, leading to initiation of disciplinary proceedings, an employee cannot be said to be so relevant as to be compulsorily furnished to the employee. The charge has to be proved as the basis, indicated therefor. Hence, the contention advanced on behalf of the petitioner, in this regard, cannot be accepted. Though the learned counsel for the petitioner made an endeavour to convince this Court, that the conclusions arrived at by the Inquiry Officer cannot be sustained; this Court is not inclined to agree with him. It is well settled that this a High Court, while acting under Article 226 of the Constitution of India, cannot function as an Appellate Authority over the findings recorded by the Inquiry Officer. Further, no instances of any perverse findings or observations, contrary to material on record; are pointed out. The allegations in the charge-sheet, served upon the petitioner, are confined to the irregularities, in the process of accounting. No where it has been mentioned that the petitioner was unauthorisedly absent for any period, much less, the explanation of the petitioner, as regards the same was insisted. It was only in the second show cause notice dated 25-04-2006, that the 3rd respondent made a mention to the period of absence. The petitioner was inflicted the punishment of ‘reversion to the lower cadre as UDC, besides treating the period of absence from duty from 26-09-2004 to 10-12- 2004 and 23-12-2004 to 04-01-2005 as dies non, and suspension period, from 05-01-2005 till the date of his joining, is treated as such” While there cannot be any objection in the facts and circumstances, for the reversion of the petitioner, to the cadre of UDC, that portion of the punishment, which relates to treating the period of absence from duty from 26-09-2004 to 10-12-2004, and 23-12-2004 to 04-01-2005, as dies non; cannot be sustained in law. The reason is that, the charge does not contain any allegation as to the period of absence. The question of inflicting punishment for the same, does not arise. Therefore, the said part of the punishment, deserves to be set aside. For the foregoing reasons, the writ petition is partly allowed, setting aside the punishment imposed against the petitioner, in relation to the period of absence from 26-09-2004 to 10-12-2004 and 23-12-2004 to 04-01-2005 as dies non. In other respects, the impugned order is upheld. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.01-08-2008. Note: L.R. copy to be marked. (B/O) KO*