THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.6977 OF 2004 DATED : 22.10.2009 BETWEEN V.Balaji Naik … Petitioner And Southern Power Distribution Co. of AP Ltd., rep. by its Superintending Engineer (Operation), Guntur District. And another … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.6977 OF 2004 ORDER: The petitioner challenges his dismissal from service under Memo No.DEE/O/NRT/ADM/C1/D.No.40/04 dated 16.03.2004 passed by the Divisional Electrical Engineer, Operation, Narasaraopet of the Southern Power Distribution Company of A.P. Limited (for brevity, ‘the APSPDCL’) and seeks a consequential direction to the respondents to reinstate him in service with all consequential benefits, continuity of service, back wages, etc. The petitioner was appointed as a Junior Lineman (Trainee) in the service of the APSPDCL by order dated 15.07.1999. During the course of verification of his antecedents, the I.T.I. certificate produced by the petitioner was subjected to scrutiny by the Intelligence Department and was found to be suspect. Accordingly, the Divisional Electrical Engineer, APSPDCL, Narasaraopet, addressed the Principal of the Government I.T.I. College, Dhone, Kurnool District, seeking verification of the genuineness of the said certificate. The reply of the Principal, vide letter 21.01.2002, was to the effect that the said certificate was not genuine. Basing thereupon, it appears that the Superintending Engineer, Operation, APSPDCL, Guntur appointed the Divisional Engineer, Enquiries, Tirupathi, to conduct an enquiry against the petitioner vide his proceedings dated 08.03.2002. Thereupon, the Enquiry Officer issued a charge sheet to the petitioner on 26.03.2002 and proceeded to enquire into the matter. Basing on the Enquiry Officer’s report indicting the petitioner, show cause notice dated 25.06.2003 was issued to him calling upon him to submit his explanation as to why he should not be dismissed from service. After considering the petitioner’s explanation dated 17.07.2003, the impugned order dated 16.03.2004 was passed dismissing him from service. Aggrieved thereby, the petitioner filed the present writ petition. In the counter affidavit filed on behalf of the APSPDCL, the Divisional Electrical Engineer, Operation, APSPDCL, Narasaraopet, Guntur District, while reiterating the above facts, stated that the petitioner had produced a bogus certificate so as to secure a job and had thereby deprived a deserving qualified S.T. candidate of employment. He stated that the misconduct committed by the petitioner was serious in nature as it reflected on his integrity and honesty and thus, the order dismissing him from service was justified. Sri K.Vasudeva Reddy, learned counsel for the petitioner, challenged the disciplinary action taken by the APSPDCL against his client on a short ground. He pointed out that the charge sheet dated 26.03.2002 was issued by the Enquiry Officer himself and not by the disciplinary authority. Further, no regular enquiry was held by the Enquiry Officer, who merely relied upon the documentary evidence collected prior to the institution of the enquiry, and there was no examination of witnesses to prove the charge against the employee. The learned counsel would submit that when the APSPDCL proposed to visit the employee with the dire punishment of dismissal from service, it was incumbent upon it to hold a full-fledged enquiry into the matter, giving full opportunity to the employee, before proceeding to take action. The learned counsel placed reliance on the Judgment of a Division Bench of this Court in CH.APPALA REDDY v. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD., VISAKHAPATNAM[1]. The short point that arises for consideration in this case is whether the procedure followed by the APSPDCL while dismissing the petitioner from service is valid in law? It is borne out by the record that the APSPDCL did not choose to issue any show cause notice to the petitioner prior to the appointment of the Enquiry Officer. It was only after the appointment of the Enquiry Officer, that the Enquiry Officer himself framed the charges and communicated the same to the petitioner under his Memo dated 26.03.2002. The observations of the Division Bench in this regard in CH.APPALA REDDY are apposite: “5. The controversy in this Writ Appeal is in a very narrow compass. The second respondent intended to initiate disciplinary proceedings against the appellant. However, he commenced the disciplinary proceedings against the appellant with the appointment of the third respondent as an Enquiry Officer through his proceedings dated 29.10.2004. The third respondent, in turn, framed charges against the appellant. 6. 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 V.K.Khanna’s case (1 supra), (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. 7. 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 misconduct, 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.” Viewed in the light of the above precedent, it is clear that the procedure followed by the APSPDCL in the present case does not conform to the expected standards. No doubt, the charge levelled against the petitioner is serious in nature, in as much as he is said to have secured employment by fraudulent means, i.e., on the basis of a bogus certificate. However, that would not by itself justify the APSPDCL’s action in throwing the applicable norms to the winds and resorting to a haphazard procedure for dismissing the petitioner from service. In the present case, the APSPDCL admittedly did not choose to call for any explanation from the petitioner before instituting an enquiry. No prima facie opinion was reached by the disciplinary authority after duly considering the petitioner’s explanation as to the alleged misconduct prior to the institution of the enquiry as posited by the Judgment of the Division Bench of this Court in CH.APPALA REDDY. Further, the disciplinary authority or another authority, under his delegation, did not frame the charges against the petitioner and the task was left to the Enquiry Officer himself. The disciplinary action taken by the APSPDCL based on this unorthodox and wholly unsustainable procedure is therefore liable to be set aside. The writ petition is accordingly allowed in part declaring the dismissal of the petitioner from service under the Memo dated 16.03.2004 as illegal. However, in the light of the seriousness of the charge levelled against the petitioner, the APSPDCL is directed to initiate fresh disciplinary proceedings against him in accordance with the procedure laid down by law. The petitioner shall be entitled to reinstatement in service forthwith owing to his dismissal from service being held to be illegal. However, his entitlement to the various benefits for the period that he was kept out of service would depend upon the result of the disciplinary proceedings initiated by the APSPDCL pursuant to this order. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 22nd October, 2009. Note: Issue C.C. in one week. B/O VGSR [1] 2005 (3) ALT 632 (D.B.)