IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SIXTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 23144 of 2007 Between: S.Ravi Shankar, S/o late S.Nagaiah, R/o H.No.5-5-299, Sarojinidevi Lay Out, Tirupathi, Chittoor District. ..... PETITIONER AND 1 Sri Venkateswara University, Tirupathi represented byits Registrar. 2 Standing Board of Enquiry, Sri Venkateswara University, Tirupathi, represented byits Registrar. .....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 order, direction or writ more particularly one in the nature of writ of mandamus or any other appropriate writ (1) declaring the Memorandum of Charge issued vide Proceedings dated 16-11-2006 of the Standing Board of Enquiry as communicated by the Registrar vide Memo No.E-III (4)/2006 (SBE), dated 18-11-2006 as illegal and without jurisdiction; (ii) declare the consequential proceedings of the Standing Board of Enquiry into the charges framed against the petitioner vide Proceedings dated 16-11-2006 as illegal and without jurisdiction and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice. Counsel for the Petitioner:SMT.K.UDAYA SRI Counsel for the Respondents: MR.KASAJAGANMOHAN REDDY The Court made the following : ORDER: This writ petition is ﬁled seeking a mandamus declaring the Memorandum of Charge issued vide proceedings, dated 16.11.2006, by the Standing Board of Enquiry as communicated by the Registrar vide Memo No.E.III(4)/2006 (SBE), Dated 18.11.2006, as illegal, arbitrary and without jurisdiction. It appears, the petitioner is working as Engineer in the Sri Venkateswara University at Tirupathi. While so, he was placed under suspension through proceedings, dated 20.03.2006, alleging insubordination towards the Superiors and Head of the Institution, and he was not paid subsistence allowance. Aggrieved thereby, he ﬁeld W.P.No.11729 of 2006 before this Court, which was disposed of on 18.07.2006, with a direction to the respondents to pay the subsistence allowance and that the enquiry shall be completed within two months. Thereafter, the Standing Board of Enquiry issued a charge sheet, dated 16.11.2006, which was communicated to the petitioner vide Memo, dated 18.11.2006, of the Registrar. Questioning the same, the present Writ Petition has been filed. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. Learned counsel for the petitioner mainly contended that the issuance of charge sheet by the Enquiry Committee without having any jurisdiction whatsoever is improper. Learned counsel further contended that it is for the disciplinary authority to issue a charge sheet and call for explanation from the petitioner and if the disciplinary authority is not satisﬁed with such an explanation, the matter could be referred to the Enquiry Committee for further enquiry and such a procedure is not followed in the present case, which is contrary to the settled principles of law. Per contra, Sri Kasa Jaganmohan Reddy, learned Standing Counsel for the respondent-University, strenuously contended that under the Rules framed by the University, viz., Sri Venkateswara University Service (Discipline, Control and Appeal) Rules (for short ‘the Rules’), the Standing Board of Enquiry is empowered to frame charges, call for explanation and if it is not satisﬁed, it can proceed with further enquiry. In support of his contention, learned counsel has relied upon Annexure-I of Ordinance 5-A of Chapter XXII of the Laws of the University. Clauses 1 to 4 of Annexure-I read as under: “Annexure-I Instructions for the Guidance of Enquiry Officers. 1. Where it is proposed to impose on an employee any of the penalties speciﬁed in terms (iv), (vi) and (viii) of the Rule 5 A-I, the ground on which it is proposed to take action shall be reduced to the form of a deﬁnite charge or charges which shall be communicated to the person charged, together with a statement of allegations on which each charge is based and or any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required within such reasonable time as may be speciﬁed (by the inquiring authority) to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. 2. The person charged may, if he so desires, request for an access to oﬃcial records for the purpose of preparing his defence provided that the inquiring authority may, for reasons to be recorded in writing, refuse him such access if such records are strictly not relevant to the case. 3. If within the prescribed time or such further time as the charging authority may give no written statement in defence is ﬁled and no request in writing is made for an oral enquiry or for being heard in person, the authority conducting the enquiry may proceed to record the ﬁndings without holding any further enquiry. 4. an oral enquiry shall be held if such an enquiry is desired by the person charged. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross examine the witness if any on the basis of whose recorded evidence the charges might have been framed, to give evidence in person and to have such witness called as he may wish, provided that the authority conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. After the enquiry has been completed the person charged shall be entitled to put in, if he so desires, any further written statement of his defence.” Learned counsel further contended that as per Clause 1 of Annexure-I, extracted hereinabove, the Enquiry Committee is entitled to frame charges, invite explanation and proceed with further enquiry. I am afraid, I am not able to agree with the submissions made by learned counsel for the respondents. The whole purport of Clause 1 is that the delinquent employee is required within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. But in the entire Clauses, as noticed above, there is no power vested with the Enquiry Committee to frame charges. Generally speaking, it is for the disciplinary authority to frame charges and then, call for explanation from the delinquent employee. If the disciplinary authority is not satisﬁed with the same, it may refer the matter for further enquiry or hand it over to the Enquiry Committee as contemplated under the Rules. No such procedure is followed in this case. In similar circumstances, a Division Bench of this Court in Ch.Appala Reddy v. Eastern Power Distribution Company of A.P. Limited, Visakhapatnam[1], at paras 6 to 9 held as under: “In any disciplinary proceedings, the necessity to appoint an Enquiry Oﬃcer arises only when the appointing authority points out certain acts of indiscipline on the part of the delinquent employee and the explanation oﬀered by the employee is not satisfactory. On the other hand, where the explanation is found to be satisfactory, the necessity to proceed further does not arise or remain. In State of Punjab v. V.K.Khanna (AIR 2001 SC 343), the Supreme Court reinstated this position of law and held that appointment of an Enquiry Oﬃcer even before a show-cause notice or charge-sheet is served upon an employee is unknown to service jurisprudence. It was further observed that in such an event, an element of bias exists vis-à-vis the Enquiry Officer. The appointing authority would be in a position to apply his mind to the facts of the case only when he calls upon an employee to explain as to the acts of mis-conduct, noticed by him. Depending on his satisfaction, on consideration of the explanation, he may have to choose either to proceed further or to drop the proceedings. Even in a case, where he proposes to proceed further, but his inclination is only to impose a minor penalty, the necessity to appoint an Enquiry Oﬃcer may not arise. Conversely, the need to appoint an Enquiry Oﬃcer would arise if only the appointing authority is not satisﬁed with the explanation oﬀered by the employee and that he proposes to inflict a major penalty. All these steps can emerge only when a show- cause notice or charge-sheet is given by the appointing authority. Such a course was, admittedly, not followed in this case. As observed earlier, initiation of disciplinary proceedings against the appellant commenced with the appointment of an Enquiry Oﬃcer and the ratio laid down by the Supreme Court gets attracted to the facts of the case. The Regulation 10(2)(a), upon which, reliance is placed by the respondents, does not salvage the situation. On the other hand, the Regulation does not support the course of action, adopted by the respondents. In clear terms, it mandates that the appointing authority shall appoint an Enquiry Oﬃcer only when he proposes to impose the penalty indicated in certain clauses. The proposal to impose such a penalty can, invariably, emerge only after ascertaining the views or obtaining the explanation from the employee concerned. Viewed from any angle, the order challenged in the writ appeal, cannot be sustained. We accordingly allow the writ appeal and set aside the order of the learned Single Judge. We allow the writ petition and set aside the proceedings challenged in it. However, we leave it open to the second respondent to issue a show-cause notice to the appellant and thereafter take further steps, in accordance with law. There shall be no order as to costs.” There is ambiguity in the Rules framed by the University with regard to the questions; who is the authority to frame charges; how the explanation needs to be invited from the delinquent employee and, prima facie, who has to examine the same. These functions even otherwise cannot be handed over to the Enquiry Committee. The Enquiry Committee, in fact, is not vested with such power under the Clauses extracted hereinabove. Therefore, I am of the opinion that the case of the petitioner was not dealt with fairly and the principles of natural justice were violated and the disciplinary authority has not taken any decision as to whether a prima facie case is made out against the delinquent employee to proceed with the enquiry or not. Unless such a decision is taken, the Enquiry Committee cannot be proceeded with the matter. Therefore, the Enquiry Committee has no authority to issue the charge sheet by itself, in the absence of any clear empowerment under the Rules. Under the above circumstances, the impugned Memorandum of Charge issued vide proceedings, dated 16.11.2006 by the Standing Board of Enquiry, as communicated by the Registrar vide his Memo, dated 18.11.2006, is set aside and the Writ Petition is allowed. However, it is made clear that it will not preclude the disciplinary authority from issuing a charge sheet and calling for explanation from the petitioner and if the disciplinary authority is not satisﬁed with the explanation submitted by the petitioner, it may refer the matter to the Enquiry Committee for conducting further enquiry. No costs. ______________ C.V.RAMULU,J. Dated:16.10.2008 GJ [1] 2005(3) ALD 525 (DB)