IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 9134 of 2007 Between: D.Dhanujaya, S/o.Krishna, of the Assistant Engineer,(Operations), Kaligiri Division, APSPDC Limited, Nellroe Dist. ..... PETITIONER AND 1 The Superintending Engineer, Operation Circle,APSRTC, Limited, Vidyuth Bhavan, A.K.Nagar, Nellrore. 2 The Divisional Electrical Engineer, Operation, Kavali,APSPDC, Limited, Kavali,Nellore Dist. .....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 a writ of Mandamus, or any other appropriate writ, order or direction, declaring (a) the orders passed in Memo No.SE/O/NLR/PO/ADMN/JLO/U2/D. No.130/2007 dated 22-3-2007 and the proceedings in Memo No.DEE/I/KVL/Adm.UI/D.No. 89/2000 dated 3- 9-2000 of the 2nd respondent as being mechanical, bad illegal, arbitrary and contrary to the law the laid down by the Hon'ble Supreme Court in G.M.Tank vs. State of Gujarath reported in 2006(5) SCC-446 and in jasbeer Singh Vs.Punjab &Sind Bank 2006(8) Supreme-69-and set aside the same; (b) and further declare that the petitioner is entitled for all consequential service benefits, like promotion, pay etc. Counsel for the Petitioner: MR.N.USHA KIRAN Counsel for the Respondents: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following: HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No.9134 of 2007 ORDER: Heard the learned counsel for the writ petitioner and Sri P.R. Bala Rami Reddy, learned counsel for the respondents. This writ petition has been filed by a Lineman of the A.P. Southern Power Distribution Company Limited (APSPDCL), Nellore, questioning the order passed by the first respondent-the Superintending Engineer, rejecting the appeal preferred against the order of punishment imposed against him. It is alleged that when the writ petitioner was working at Kavali, Nellore District, he has been subjected to disciplinary proceedings on three counts of misdemeanor alleged against him. It is alleged that while being in a drunken condition at about 3.00 pm on 01.05.1998, the writ petitioner has scolded Smt.Ch.Subbamma, who came to the said office for handing over a tappal. It is alleged that the writ petitioner has abused her by taking her caste name. It is also alleged that on the same day at about 6.40 pm, the writ petitioner has also scolded one Sri G.Audiseshagiri, Junior Accounts Officer, for his alleged non-participation in the General Strike called by one of the Unions during April, 1998. It is further alleged that the writ petitioner has also assaulted the said gentleman. The third count of imputation is that the writ petitioner at about 6.45 pm on the same day assaulted Sri K.Penchala Kiran Kumar, Watchman of the Divisional Office at Kavali, who was standing opposite to the Office. The writ petitioner was initially placed under suspension and thereafter, enquiry was conducted against him. Based upon the material gathered at the enquiry, the Divisional Engineer through his orders, dated 08.09.2000, imposed the punishment of reduction of 30 ranks in the seniority list of Lineman, besides treating the period of suspension as such to meet the ends of justice. It is this order, which has been the subject matter of appeal before the first respondent-the Superintending Engineer who, as already noticed, has rejected the appeal through the impugned order, dated 22.03.2007. The learned counsel for the writ petitioner would submit that the writ petitioner has also been subjected to prosecution in criminal Court for the above narrated acts of misdemeanor and the same witnesses and same evidence has been gathered before the criminal Court and upon consideration of the entire material, the criminal Court had found that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt and hence, the writ petitioner has been acquitted. The learned counsel has also drawn my attention to the fact that before the criminal Court Sri K.Penchala Kiran Kumar and Smt.Ch.Subbamma both were examined, apart from two other witnesses and the Investigating Officer, namely, the Sub-Inspector of the Police Station. The complainant as well as Smt.Ch.Subbamma who were examined as PWs.1 and 2 respectively, did not support the prosecution theory at all. Therefore, the criminal Court had no hesitation to come to the conclusion that the alleged acts of misdemeanor attributed to the writ petitioner have not been established by the prosecution. Before the Enquiry Officer also the same evidence has been let in. But, however, the Enquiry Officer has arrived at a divergent conclusion and held the misdemeanor to have been established. It will be important to notice that if a competent criminal Court, after conducting a full-fledged trial and upon consideration of the very same material and evidence, arrives at a conclusion that the misdemeanor alleged has not been established, it will be improper to hold otherwise in a departmental enquiry, just because the degree of proof is entirely different. It will be appropriate at this stage to notice that if the same material has been traversed and considered by a criminal Court as well as the disciplinary authority, and if the Court were to come to the conclusion that the material is insufficient to hold a person as guilty, such a finding should normally be given its due credence and weight. When a reasonable body of men, upon consideration of the same material arrives at a particular conclusion, that acquires the standard of reasonableness. The disciplinary authority is also obliged to arrive at a reasonable conclusion and hence should arrive at the same conclusion. This very question has been considered by the Supreme Court in G.M. Tank v. State of Gujarat[1] and the principles in this regard have been culled out in the following manner. “The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings as already noticed are grounded on the same set of facts namely, raid conducted at the appellant’s residence, recovery of articles therefrom. The Investigating Officer, Mr.V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed, the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand”. The Supreme Court had an occasion to consider similar issue in Jasbir Singh v. Punjab & Sind Bank[2]. Therefore, it is clear that the findings recorded by the disciplinary authority that the writ petitioner is guilty of Charge Nos.1 and 3 as framed against him, cannot be sustained. The material gathered during the course of enquiry is the same material, which was considered by the criminal Court as well. In these set of circumstances, the findings arrived at by the disciplinary authority which are at variance with the findings recorded by the criminal Court should not be allowed to form basis for the impugned order. The general principle that whenever an employee is found guilty of more than one count of misdemeanor, which one of them would have fetched the ultimate punishment, is not a matter to be debated by the Court. It is a matter for consideration by the disciplinary authority. If Charge Nos.1 and 3 as framed against the writ petitioner are liable to be treated to have been dropped or not established, then what remains perhaps before the disciplinary authority is the material gathered with regard to Charge No.2. Even there, the learned counsel for the writ petitioner would submit that the Enquiry Officer has not conducted the enquiry in accordance with the procedure spelt out in Regulation 10(2) of the A.P. State Electricity Board Employees Discipline and Appeal Regulations, which are borrowed/adopted and applied for APSPDCL. Regulation 5 of these Regulations sets out what penalties can be imposed for a proven misconduct of any of the employees. Reduction to a lower rank in the seniority list is one of the punishments listed out at Serial No.4 thereof. That is considered to be a major punishment and consequently, the detailed procedure to be followed and adopted before imposing such a major punishment has been spelt out in sub-regulation (2) of Regulation 10 of these Regulations. During the course of enquiry, the Enquiry Officer has not examined Sri G.Audiseshagiri, Junior Accounts Officer (perhaps, he is the person who would have testified as to whether he has been abused by the writ petitioner at about 6.40 pm near office premises at all or not). Since he has not been examined at all, one can safely come to the conclusion that there is no reasonable material for one to come to the conclusion that the writ petitioner did really abuse him. Without there being adequate and supporting material for the conclusions, the conclusions take the form of unreasonable findings, if not perverse findings. For these reasons, the order of punishment imposed by the disciplinary authority against the writ petitioner needs to be interfered with and accordingly, the order dated 08.09.2000 is set aside. Since the appeal has only confirmed the order passed by the disciplinary authority, the orders passed by the first respondent through his proceedings, dated 22.03.2007, also must necessarily fall and accordingly, the same is set aside. The writ petition is accordingly allowed. No costs. ________________________ Nooty Ramamohana Rao, J 13.07.2009 VGB [1] (2006) 5 SCC 446 [2] 2006 (8) Supreme 690