IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 12798 of 1992 Between: G.Venkata Rao, S/o.Punnaia, Regional Manager (Ac.), A/45 years, A.P.State Agro Industries Development Corpn. Ltd., Hyderabad .. Petitioner AND A.P.State Agro Industries Development Corpn. Ltd., rep. by Its Vice Chairman and Managing Director, 10-2-3, “Agro Bhavan” A.C.Guards, Hyderabad-500 004 ...RESPONDENT 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 more particularly one in the nature of writ of certiorari and call for the records relating to and connect with the proceedings VC & MD Peshi:2:87:88, dated 17.4.1992 and quash or set aside the same. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent: SMT J.VIJAYA LAKSHMI The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 12806 of 1992 Between: K.Krishna Raju, S/o.K.Suryanarayana Raju, A/46 years, Regional Manager (Ac.), A.P. State Agro Industries Development Corpn. Limited, Hyderabad ..... PETITIONER AND The A.P. Stage Agro Industries Development Corporation Limited, rep. By its Vice Chairman and Managing Director , 10-2-3, “Agro Bhavan” A.C.Guards, Hyderabad-500 004. .....RESPONDENT 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, more particularly in the nature of writ of Certiorari and call for the records relating to and connected with the show cause notice VC & MD Peshi/8/87/88, dated 17.4.1992 of respondent and quash the same. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent : SMT.J.VIJAYALAKSHMI The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 27405 of 1997 Between: 1.P.Gopal Reddy, S/o.Venkatareddy, A/52 years, Manager, A.P.S.Agro Industries Development Corpn. Ltd., Hyderabad 2. M.A.A.Ansari, S/o.M.Z.Ansari, A/51 yrs., Regional Manager, A.P.S.Agro Indus. Development Corpn. Ltd., Hyderabad 3. B.Chakarapani, S/o.B.Ramaiah, A/50 yrs. Regional Manager, APSAIDC Ltd., Presently residing at Vizianagaram 4. K.Purnachandra Rao (died) 5. K.Umadevi, W/o.Late K.Purnachandra Rao, A/49 rs., Occ: Household, Plot No.5B, Secunderabad. (Petitioner No.5 was brought on record as L.R. of the deceased petitioner No.4 as per Court Order in WPMP No.5370 of 2002, dt.21.6.2002) .. Petitioners AND A.P. State Agro Industries Development Corporation Ltd., rep. by its Vice Chairman and Managing Director, 10-2-3, “Agro Bhavan”, A.C.Guards, Hyderabad – 500 004. .. Respondent 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 more particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the proceedings of VC and MD/Peshi/87-88, dated 17.4.1992 of VC & MD of the respondent Corporation and quash the same. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent: ADVOCATE GENERAL The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 8355 of 1998 Between: 1. G.Venkata Rao, S/o.Punnaiah, A/50 Years, Regional Manager, APSAIDC Limited, A.C.Guards, Hyderabad 2. P.Gopal Reddy, S/o.Venkatareddy, A/52 years, Regional Manager, A.P.S.Agro Industries Development Corpn. Ltd., A.C.Guards, Hyderabad. 3. M.A.A.Ansari, S/o.M.Z.Ansari, A/51 yrs., Regional Manager, A.P.S.Agro Industries Development Corpn. Ltd., A.C.Guards, Hyderabad ..... PETITIONER AND The Vice-Chairman and Managing Director, A.P.S.Agro Industries Development Corpn. Limited, A.C.Guards, Hyderabad. .....RESPONDENT 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 appropriate Writ order or direction declaring Clause-6, incorporated in the Option Form for application for voluntary retirement scheme of the respondent corporation, which is enclosed to Circular letter No.Pers: AMIL/JM/9533, Dated 11.7.1997 of the respondent-corporation, under voluntary retirement scheme, is contrary to G.O.Ms.No.282 Agriculture & Cooperation (FP.I) Department, dated 8.7.1997 of Government of Andhra Pradesh and also contrary to circular No.Petrs: AMIL/JM/9533/93, dated 11.7.1997 of the Respondent-Corporation and declare it as illegal, unjust, unconstitutional, arbitrary and is violative of Articles 14,16 and 21 of the Constitution of India. Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent: MR.G.SURAPU NAIDU The Court made the following : *THE HON’BLE SRI JUSTICE K.C.BHANU +W.P.Nos.12798 of 1992, 12806 of 1992, 27405 of 1997 and 8355 of 1998 %Dated 16.07.2004 W.P.No.12798 of 1992: #G.Venkata Rao, S/o.Punnaiah, Regional Manager (Ac), A/45 years, A.P.State Agro Industries Development Corporation Ltd., Hyderabad .. Petitioner Vs. $A.P. State Agro Industries Development Corporation Ltd. rep. by its Vice Chairman and Managing Director 10-2-3, “Agro Bhavan” A.C.Guards, Hyderabad-500 004 .. Respondent W.P.No.12806 of 1992: # K.Krishna Raju, S/o.K.Suryanarayana Raju, A/46 years, Regional Manager(Ac) A.P. State Agro Industries Development Corporation Ltd., Hyderabad .. Petitioner Vs. $ A.P. State Agro Industries Development Corporation Ltd. rep. by its Vice Chairman and Managing Director 10-2-3, “Agro Bhavan” A.C.Guards, Hyderabad-500 004 .. Respondent W.P.No.27405 of 1997: # 1. P. Gopal Reddy, S/o.Venkatareddy, A/52 years, Manager, A.P.S.Agro Industries Development Corpn, Ltd., Hyderabad 2. M.A.A.Ansari, S/o.M.Z.Ansari, A/51 yrs. Regional Manager, A.P.S.Agro Indus. Development Corpn. Ltd., Hyderabad 3. B.Chakrapani, S/o.B.Ramaiah, A/50 yrs. Regional Manager, APSAIDC Ltd., Presently residing at Vizianagaram 4. K.Umadevi, W/o.Late K.Purnachandra Rao, A/49 yrs., Occ: Household, Plot No.5B, Bhavani Colony, Sainik Puri, Secunderabad .. Petitioners Vs. $ A.P. State Agro Industries Development Corporation Ltd. rep. by its Vice Chairman and Managing Director 10-2-3, “Agro Bhavan” A.C.Guards, Hyderabad-500 004 .. Respondent W.P.No.8355 of 1998: # 1. G.Venkat Rao, S/o.Punnaih, A/50 yrs., Regional Manager, APSAIDC Limited, A.C.Guards, Hyderabad 2. P.Gopal Reddy, S/o.Venkatareddy, A/52 years, Regional Manager, A.P.S.Agro Industries Development Corpn, Ltd., A.C.Guards, Hyderabad. 3. M.A.A.Ansari, S/o.M.Z.Ansari, A/51 yrs. Regional Manager, A.P.S.Agro Industries Development Corpn. Ltd., A.C.Guards, Hyderabad .. Petitioners Vs. $ The Vice-Chairman and Managing Director, A.P.S.Agro Industries Development Corprn. Ltd., A.C.Guards, Hyderabad. .. Respondent <GIST >HEAD NOTE: ! Counsel for the Petitioners: Sri A.K.Jaya Prakash Rao ^Counsel for the Respondent: Sri K.Prakash Reddy ? Cases referred 1. 1980(1) LLJ 46 2. 1998(4) ALT 367 3. AIR 1999 SC 22 4. 2000 LIC 221 5. 1994(2) ALT 422 6. 1998(6) ALD 362 7. 2000(1) LLJ 1307 8. 2002(5) ALD 827 9. 2002(1) ALD 293 10. 2004(1) ALD 505 HONOURABLE SRI JUSTICE K.C.BHANU W.P.Nos.12798 of 1992, 12806 of 1992, 27405 of 1997, and 8355 of 1998 COMMON ORDER: These writ petitioners raise common questions of fact and law and accordingly they are dealt with by a common order. All these writ petitions are filed by various Regional Managers of A.P. State Agro Industries Development Corporation Limited, Hyderabad, questioning the individual Show Cause Notices No.VC and MD/Peshi/8/87-88, dated 17.4.1992. Before adverting to the question as to whether the impugned Show Cause Notice issued by the respondent-Corporation suffers from any legal infirmity requiring any correction as such by this Court, in exercise of its Certiorari jurisdiction, it may be necessary, briefly, to note the relevant facts leading to the filing of these writ petitions: The respondent passed orders suspending all the nine Regional Managers. Questioning the same, all the petitioners filed various writ petitions to quash the suspension orders. During the pendency of the said writ petitions, the respondent issued a common charge Memo to the petitioners on 15.10.1987. The writ petitions which were filed questioning the suspension orders were dismissed by this Court. Aggrieved by the same, the petitioners filed W.A.No.509 of 1988 and batch wherein the Division Bench quashed the suspension orders. Thereafter, all the petitioners were reinstated into service on 9.4.1990. On 15.9.1990, an Enquiry Officer was appointed to conduct departmental enquiry. He called for the explanation from the petitioners for which reply was given by them requesting the Enquiry Officer to direct the Presenting Officer to make available certain documents required by the writ petitioners. Without making the documents available to the petitioners for their perusal, the Enquiry Officer issued a memo fixing the dates and timings for examining the management witnesses. It is the case of the petitioners that no enquiry was conducted. The Enquiry Officer also issued a letter fixing the date for production of witnesses and the petitioners were directed to be present to cross-examine them, but the examination did not take place. To the surprise of the petitioners, they were issued a Show Cause Notice dated 17.4.1992 as to why the penalty of dismissal from service should not be passed against them. The respondent-Corporation filed a common counter affidavit contending that contrary to the instructions, the petitioners sold the fertilizers on or after 11.7.1981 at old prices by ante-dating the actual sales. The total fraudulent sales so made by the petitioners were estimated at about Rs.35.00 lakhs. The respondent-corporation gave instructions to the petitioners to raise supplementary invoices on the dealers for the differential price amount, but the petitioners did not comply with the instructions. The matter was entrusted to the Anti Corruption Bureau in 1984 by the Government. Basing on the final report of the Anti Corruption Bureau, the Government requested the Corporation to take appropriate action. After reinstatement of the petitioners into service, a departmental enquiry was proceeded with for enquiring into the individual cases. The Enquiry Officer, after conducting the enquiry, came to the conclusion that the petitioners were guilty of selling fertilizer stocks at pre-hiked prices contrary to the instructions issued by the Corporation resulting in financial loss. The Board of Directors, basing on the enquiry report, unanimously came to a provisional conclusion that major punishment of dismissal from service may be awarded to the petitioners including the recovery of the financial loss caused to the Corporation and authorized the Vice Chairman and Managing Director to issue Show Cause Notice. Accordingly the impugned proceedings have been issued. In the year 1997, the Government issued a Memo to close down the Agro Chemical Division of the Corporation. In pursuance of that memo, a voluntary retirement was offered to the employees of the Corporation including the petitioners who are facing disciplinary proceedings. In view of the instructions of the Government, the Corporation has no alternative except to voluntarily retire the employees who opted for voluntary retirement under Voluntary Retirement Scheme. The non- supply of documents is denied as the documents requested by the petitioners are not relevant to the issue in question. Hence, the respondent-corporation prays to dismiss these petitions. Sri A.K.Jaya Prakash Rao, learned counsel appearing for the writ petitioners contended that the Enquiry Officer did not record the statement of witnesses but he simply submitted a report. The Enquiry Officer did not even follow the procedure in conducting the enquiry as per the guidelines. The Voluntary Retirement Scheme(V.R.S.) to some of the petitioners has been accepted. Therefore, the master and servant relationship comes to an end once the Voluntary Retirement Scheme is accepted and the retirement benefits cannot be withheld in the absence of rules and regulations. Therefore, he prays to set aside the impugned Show Cause Notice. Sri K.Prakash Reddy, learned counsel appearing for the respondent contended that this is not the stage to interdict the impugned proceedings and the contentions raised by the writ petitioners can as well be submitted to the respondent by way of explanation and it is for the disciplinary authority to pass appropriate orders basing on the evidence available on record. Hence, there are no grounds to interfere with the impugned show cause notice. Heard both the counsel and perused the material available on record. It is well settled law that once the charge against the delinquent is established, the quantum of punishment is for the employer to decide. The scope of judicial review is limited to the deficiency in decision making process and not the decision but in this case, the decision has not been taken by the administrator. As per the instructions in Circular No.Pers/SAIII/4378/74, dated 25.5.1974, the Enquiry Officer shall first record the evidence of witnesses for the Management in support of the charges and then the evidence of the defence witnesses if any on behalf of the accused employee. Each witness is examined-in-chief by the party who calls him and then cross-examined by the opposite party. The instructions also reveal that the accused employee is entitled to have the assistance of a defending co-workman belonging to his department only. When the Management’s representative/the accused employee reports that he does not intend to produce any more witnesses on his behalf, the Enquiry Officer shall obtain his written endorsement to that effect. According to the learned counsel for the petitioners, the said procedure has not been followed and in the counter also it is admitted that no witnesses were produced on behalf of the respondent, but it is stated that the production of witnesses is not very essential in the present case inasmuch as the entire case revolves round the question whether proper procedure in selling the fertilizers has been followed by the petitioners or not. On the basis of the documents made available to the delinquent it is clear that there was back-dating of the D.Cs. etc. with a view to making personal gain. According to the respondent, all the relevant documents were already placed before the Enquiry Officer. Copies of which were also furnished to the petitioners. So, from the material on record, it is clear that no witness is examined but examination of witnesses is not necessary when the department sought to prove the case basing on the documents. Simply because no witness is examined it does not mean, on that ground show cause notice cannot be quashed inasmuch as evidence includes documents. The other contention of the petitioners’ counsel is that certain important documents were not shown nor given to the petitioners, thereby causing great prejudice. It is a fact that some of the writ petitioners addressed letters to the Enquiry Officer requesting to furnish certain documents. Certain Photostat copies were shown but according to some of the petitioners, some other documents were not shown to them. A memo was filed by the respondent before the Enquiry Officer on 3.12.1990 stating that some of the documents sought for by the charged Officer are made available to petitioners for perusal and the rest of the documents will be made available very soon. In the facts and circumstances of the case, it is not a case of total denial of furnishing all the documents. Copies of some documents were furnished. Some other documents were made available for perusal of the writ petitioners. It is not specifically stated in what way prejudice has been caused for non-supply of remaining documents. With regard to the maintainability of the petitions against the show cause notice, the learned counsel for the petitioners relied upon a decision reported in MANINDRA NATH GHOSH Vs. STATE OF WEST BENGAL wherein their Lordships held as under: “An application under Art. 226 of the Constitution challenging the second show-cause notice only impeaching that the charge- sheet has made with a closed mind or has been made by person not authorized and/or that there has been a violation of the principles of natural justice is not maintainable but where the second show-cause notice is challenged on the grounds that the charge-sheet has been issued with a closed mind, that the principles of natural justice have been violated the writ petition is maintainable even though no final order has been passed and no punitive action has been taken pursuant to the show-cause notice.” The case on hand did not disclose that charge sheet was issued with closed mind or enquiry was conducted in total violation of principles of natural justice. The learned counsel for the petitioners further relied upon a decision reported in S.KRISHNA MURTHY Vs. GOVERNMENT OF A.P. wherein his Lordship observed as follows: “This Court quashed the show cause notice issued to the petitioner on the ground that there was no scope of initiating the disciplinary proceedings against a person who has effectively retired on attaining the age of superannuation and that he cannot be subjected to the control of the department, of course except if the rules of service provide”. In another decision reported in WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS, MUMBAI the Apex Court held to the following effect: “Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” In another decision reported in HARDWARI LAL VS. STATE OF U.P. the Supreme Court held as follows: “In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground to quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service.” With regard to the continuation of the disciplinary proceedings after retirement, the learned counsel for the petitioners relied upon a decision reported in C.RAMALINGA REDDY Vs. NON- CONVENTIONAL ENERGY DEVELOPMENT CORP. OF A.P. LIMITED wherein this Court observed the following: “For the reasons mentioned above, I am clearly of the opinion that the petitioner, who was permitted to retire on attaining the age of superannuation by the respondent, cannot be proceeded against by way of disciplinary proceedings.” In another decision reported in the case of P.NARAYANA RAO Vs. A.P. STATE MEAT AND POULTRY DEVELOPMENT CORPN. LIMITED this Court held as under: “For all the above-mentioned reasons, I am of the opinion that the action of the first respondent-Corporation in seeking to continue the disciplinary proceedings against the petitioner beyond the period of his service, is illegal and unauthorized by law and is required to be declared as such.” The learned counsel for the petitioners further relied upon a decision reported in R.G.BAKHLE Vs. M.S.F. CORPORATION wherein the Division Bench of Bombay High Court observed as follows: “Neither in the Service Regulations nor in the Gratuity Regulations is there any provision that the disciplinary enquiry commenced while the employee was in service can be continued even after he ceases to be in service.” The petitioner’s counsel placed reliance on another decision reported in S.SWAMYNATHA REDDY Vs. HINDUSTAN SHIPYARD LIMITED wherein this Court held to the following effect: “In this case, the respondents have accepted the application of the petitioner seeking voluntary retirement and he was relieved from duty from 31.3.2001 by a common order. Thus, it has to be held that there is no jural relationship between the petitioner and respondents as employee and employer.” In yet another decision reported in GENERAL MANAGER, ADILABAD DIST. COOP. CENTRAL BANK LIMITED Vs. K.RANGA RAO Division Bench of this Court held thus: “Having regard to the authoritative pronouncements of the Apex Court, there cannot be any doubt whatsoever that despite the fact that the writ petitioner had been allowed to retire without prejudice to the right of the employer to continue the disciplinary proceedings, the same was not permissible in law. The only course open to the authorities is not to allow the petitioner to retire on superannuation. Proceedings can be initiated against a retired employee only for the purpose of withholding the whole or part of pension provided there exists any provision therefore.” In the last decision cited by the learned counsel for the petitioners which was reported in K.VINODHAR Vs. EXECUTIVE BOARD OF NIMS APPELLATE AUTHORITY this Court made the following observation: “It is settled principle of law that a person is amenable to disciplinary proceedings or departmental enquiry only as long as he is in employment of the Organization or the Government. Once he ceases to be in employment, be it on account of retirement, dismissal, resignation or compulsory retirement, he ceases to be amenable or available to any disciplinary proceedings.” Based on the above decisions, the learned counsel for the writ petitioners stated that having accepted the Voluntary Retirement Scheme (V.R.S.) in respect of some petitioners, the disciplinary proceedings cannot be continued in the absence of any statutory provision. Also, the respondent cannot withhold V.R.S. benefits to the petitioners. The writ petitioners made a request to the respondent- corporation to consider the acceptance of retirement under V.R.S. On the other hand, the learned counsel for the respondent contended that V.R.S. is accepted subject to the result of the disciplinary proceedings. The Voluntary Retirement benefits shall be settled after disposal of any cases or disciplinary enquiry or any other charges pending against the employee. The contention of the petitioners’ counsel is that once the Voluntary Retirement Scheme is accepted, no disciplinary enquiry can be conducted as there was no existence of master and servant relationship. This Court is unable to accept the same because the acceptance of retirement on Voluntary Retirement Scheme is a conditional one. The acceptance of retirement is subject to the condition of any cases pending against the employee. A clarification is also sought for by the respondent from the Government to the effect that voluntary retirement can be permitted even in a case where a disciplinary action is contemplated against a retiring employee, who has given a notice against such voluntary retirement. In any view of the matter, this aspect has to be considered by the disciplinary authority. This point along with other points raised by the petitioners can as well be agitated before the respondent by way of giving an explanation to the show cause notice. The rules governing the services conditions of the writ petitioners have not been filed or brought to the notice of this Court to show that after retirement either by way of superannuation or accepting the Voluntary Retirement Scheme, no departmental enquiry can be proceeded with or continued. If there is any provision or rule governing the service conditions of the employees of the respondent-corporation that departmental enquiry can be continued even after superannuation, then the departmental enquiries cannot be said to be improper or illegal. In the absence of any provision in the service conditions of the employees after superannuation or retirement under Voluntary Retirement Scheme, it cannot be said that such person cannot be subjected to disciplinary enquiry. According to the writ petitioners, with regard to the violation of principles of natural justice, some of the copies of documents were shown to the petitioners. It is not as though they were denied of going through the records available with the Enquiry Officer. It is not a case that the charge has been made with a closed mind nor has been made by a person not authorized. With regard to the non-examination of the witnesses, it is for the authority concerned to take appropriate decision basing on the documents available on record along with the Enquiry Officer’s report. Therefore, the points that