IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18219 of 1999 Between: P.Venugopal, S/o. Sri. Chennakeshvulu, V.R.Reddy Nagar, R.T.P.P. , Cuddapah District. ..... PETITIONER AND 1 A.P.S.E.B., Rep. by Member Secretary, Vidyuth Soudha , Hyderabad. 2 Chairman, A.P.S.E.B . Vidhuth soudha, Hyderabad. Re-organised as Managing Director, A.P.TRANSCO, Hyderabad. 3 The Chief Engineer O&M, R.T.P.P., V.V.Reddynagar, Kalamilla, Cuddapah District. .....RESPONDENTS Counsel for the Petitioner:MR.P.N.MURTHY Counsel for the Respondents:MR. P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to set aside order, dated 14.05.1998 passed by Member Secretary of the erstwhile Andhra Pradesh State Electricity Board (for short ‘the Board’) and order, dated 02.01.1999 confirming the said order. At the relevant time, the petitioner was working as Assistant Engineer in the Board. For the alleged misconduct, he was faced with disciplinary proceedings. Initially, three charges were framed and subsequently, supplementary charge was also framed against him. The Superintending Engineer, Enquiry Cell, was appointed as Enquiry Officer to enquire into the charges against the petitioner. After holding enquiry, the Enquiry Officer submitted his report wherein he found that charges 1 and 2 were not proved. The Enquiry Officer, however, observed with regard to charge No.1 that though it can be logically deduced that the petitioner has taken bribe for release of agricultural services, it could not be established in the absence of proof. As regards charge No.2, the Enquiry Officer held that in the absence of proper evidence and as the witnesses have retracted their statements given earlier, the said charge could not be proved. On charge No.3, the Enquiry Officer held that the petitioner cannot disown the responsibility of misplacement of demand drafts to the tune of Rs.42,320/- apart from finding that the petitioner utilized the services of a private person unauthorisedly. With regard to the supplementary charge, the Enquiry Officer held that the petitioner was unauthorisedly absent from 29.05.1995 to 13.05.1996 and thereby he held the said charge as proved. On the basis of the above mentioned enquiry report, the disciplinary authority passed order on 14.05.1998 imposing on the petitioner penalty of reduction of pay by two stages in the timescale of Assistant Divisional Engineer (ADE) for a period of three (3) years and recover the amount of Rs.42,320/- from his salary besides treating his unauthorized absence from 29.05.1995 till the date of joining as dies non. The petitioner was unsuccessful in his appeal filed before the Board with the dismissal of the same on 02.01.1999. The said two orders are questioned in this writ petition. At the hearing, Sri P.N.Murthy, learned counsel for the petitioner submitted that the findings of the Enquiry Officer as accepted by the disciplinary authority on charges 3 and 4 are not sustainable. The learned counsel further submitted that charges 1 and 2 are interlinked with charge No.3 and following the findings on charge Nos.1 and 2 whereby the petitioner was exonerated, charge No.3 should automatically fall. With respect to the finding on supplementary charge, the learned counsel invited my attention to Circular, dated 08.08.1986 and Memo, dated 22.01.1997 issued by the Board and stated that since admittedly, the applications for grant and extension of leave sent by the petitioner from time to time were not rejected, he cannot be treated as being under unauthorized absence under the amended Regulation 15(4) of the Board Leave Regulations (for short ‘the Regulations’) issued in B.P.Ms.No.58, dated 14.05.1992. I have carefully considered the submissions of the learned counsel for the petitioner and perused the record. The charges, which were framed against the petitioner, are reproduced below: CHARGE-I: Sri P.Venugopal while working as Asst.Engineer, Byreddipalli reported to have indulged in acts of corruption and tarnished the image of Board by his corrupt practices by abusing his official position, which constitutes misconduct as per A.P.S.E.Board (Revised) Conduct Regulations. CHARGE-II: Sri P.Venugopal while working as Asst.Engineer, Byreddipalli reported to have collected demand drafts from prospective consumers and booked those D.Ds for others as a matter of convenience with corrupt considerations by giving undue benefit to the applicants who are not seniors as per the priority list which constitutes misconduct as per A.P.S.E.Board (Revised) Conduct Regulations. CHARGE-III: Sri P.Venugopal while working as Asst.Engineer, Byreddipalli reported to have indulged in nefarious acts by flouting the rule of law. He reported to have failed to account for the DDs properly and booked certain D.D.s twice in favour of the prospective consumers by taking law into his hand and reported to have misappropriated Board funds, which constitutes misconduct as per A.P.S.E.Board (Revised) Conduct Regulations. SUPPLEMENTARY CHARGE: It is reported that Sri P.Venugopal, Asst.Divnl Engineer (Elecl/O&M/Shift, had absented himself from duty unauthorisedly from 29.05.1995 A.N. without prior intimation or approval of the competent authority which constitutes misconduct as per A.P.S.E.Board (Revised) Conduct Regulations. While dealing with charge No.1, the Enquiry Officer held as follows: “The consumers who gave earlier statements to the inspector Vigilance that they have paid bribe to Sri P.Venugopal for getting their services released have turned volte-face on 04.12.1996 during enquiry and gave evidence that they did not give any bribe to Sri P.Venugopal directly or indirectly and that they have given false complaints earlier to express that anguish for the delay in release of services. This clearly appears to be the result of maneuvering the witness by Sri P.Venugopal and other delinquents tutoring them to turn hostile during the enquiry. It is not out of place to mention that some of these consumers have earlier given complaint to the divisional Engineer and other authorities also against Sri P.Venugopal, Assistant Engineer that he has collected the bribe from them for release of agricultural services, though it can be logically deduced that Sri P.Venugopal Asst.Engineer has taken bribe for release of service it cannot be established in the absence of proof.” CONCLUSION: For the reasons said above, the charge cannot be held proved due to hostile witness. With respect to charge No.2, having considered the explanation offered by the petitioner, the Enquiry Officer found himself helpless in view of the witnesses not reiterating their earlier stand. On charge No.3, the Enquiry Officer held as follows: “Though it cannot be concluded that highly paid officers like P.Venugopal would have resorted to mismanage the demand drafts, which can be detected at any subsequent inspection or check, he cannot disown the responsibility to the tune of Rs.42,320/- of the loss incurred by the Board in the shape of defauloation of D.Ds alone by his private assistant Sri Mahboobpasha or any other assistant used from the O&M staff. Though he has denied initially that he has kept a private person for office assistance, he has finally admitted that he has utilized the services of a private person occasionally. The name of the private person was Sri Mahboobpasha S/o Sri Allabhakash Ex.A.D.M. in Gangavaram Section on personal payment. CONCLUSION: For the reasons said above, the charge is held proved to the extent that a loss of Rs.42,320/- (Rupees forty two thousand three hundred and twenty) incurred by the Board is due to defalcation of demand drafts committed by some of his staff of unauthorized assistant which could not be checked by him. On the supplementary charge, the Enquiry Officer held as follows: “Sri P.Venugopal while working as Asst.Divisional Engineer/Shift in R.T.P.P. has applied for 3 days casual leave from 29.5.95 to 1.6.95. He further informed that he was asked to undergo treatment and rest from 1.6.95 to 30.6.95 at his native place. He has signed the C.T.C. w.e.f. 1.6.95 F.N. along with the medical certificate and extended leave on medical certificate from time to time upto 12.11.95 and subsequently he has extended the leave in the form of Earned leave upto 13.5.96 and gave his willingness to join duty from 14.5.96, and he has not received the reposting orders till today. The Executive Director/R.T.P.P. has reported that Sri P.Venugopal has absconded from duty from 29.5.95 A.N. As admitted by the delinquent he has not signed the C.T.C. w.e.f. 29.5.95 A.N. and only issued the C.T.C. from 1.6.95. He has also admitted that he has extended the leave from 13.11.95 to 13.5.96 as Earned Leave. As per XXIV (A) Revised Conduct and Reg.No.xxix of C.C.A.Rules, he can absent himself from duty without permission for more than 5 days and hence his availment of Earned Leave without sanction from 13.11.95 becomes unauthorised absence.” The scope of judicial review in the matters concerning disciplinary proceedings is limited to examining whether the delinquent received fair opportunity to defend himself and the findings are based on some material pointing to the delinquency of the charged employee. This Court is only concerned with the decision making process and not with the merits of the decision. The law is well settled that on examination of the case, if two views are possible, the Court will not substitute it’s view to that of the view of the domestic Tribunal. (See Apparel Export Promotion Council v. A.K.Chopra [1]). It is also well established that the standard of proof in disciplinary cases is confined to the preponderance of probabilities and the requirement of proof beyond reasonable doubt, which is a sine qua non in criminal cases is not necessary. (See State of Andhra Pradesh v. Sree Rama Rao [2] ; B.C.Chaturvedi v. Union of India[3]; High Court of Judicature of Bombay v. Uday Singh[4]; HIGH Court of Judicature V. Shashikant S. Patil[5]; South Bengal State Transport Corporation v. Sagar Kumar Mitra[6]; Kapra Mazdoor Ekta Union v. Birla Cotton Spg. And Weaving Mills Ltd[7]; Karnataka Bank Ltd. V. A.L.Mohan Rao[8].) Keeping in view the above settled legal principles, if the orders passed against the petitioner are examined, I am of the view that this case does not fall in the category of cases, which warrant interference by this Court. With regard to charge Nos.1 and 2, many farmers have given complaints against the alleged corrupt practices of the petitioner while releasing agricultural services. While 11 farmers in each of the two charges have given their complaints, however, in the departmental enquiry, they have retracted their earlier complaints and though the Enquiry Officer was of the view that the petitioner has taken bribe for release of the agricultural services, he did not give a specific finding with regard thereto in the absence of proof. Therefore, though the Enquiry Officer did not hold the petitioner guilty of the alleged misconduct under charges 1 and 2, the petitioner nevertheless cannot plead that he was completely exonerated from the charges. The Enquiry Officer virtually expressed his helplessness as the farmers who gave complaints earlier went back thereon, though he assessed probability of the petitioner taking bribes, based on the available material. Under charge No.3, the petitioner failed to properly account for the Demand Drafts. The Enquiry Officer found that the Demand Drafts to an extent of Rs.42,320/- could not be accounted for by the petitioner and he unauthorisedly allowed one Sri Mahboobpasha to assist him in discharging official duties. The petitioner admitted this fact before the Enquiry Officer. As the petitioner failed to account for the said sum of Rs.42,320/-, the Enquiry Officer found him guilty of this charge. The finding of the Enquiry Officer on this charge cannot be said to be either perverse or not based on the material to come to the conclusion as he did. With regard to the supplementary charge, it is an admitted fact that the petitioner did not attend the duty from 29.05.1995 till 13.05.1996. The case of the petitioner is that he was diagnosed as suffering from illness of “HEPATIC AMOEBIASIS” and, therefore, he was advised to take rest. He pleaded that he used to send leave applications periodically and eventually, reported to duty on 14.05.1996. The learned counsel for the petitioner submitted that though the petitioner reported to duty on 14.05.1996, he was given reposting orders only on 12.03.1998. The learned counsel nextly submitted that since the petitioner’s leave applications were not rejected, he cannot be treated as being unauthorisedly absent. Alternatively, the learned counsel submitted that even though the petitioner is unauthorisedly absent, he reported to duty on 14.05.1996 and, therefore, the order imposing dies non on him for the period from 13.05.1996 cannot be sustained. As regards the first contention of the learned counsel for the petitioner, he relied on Circular and Memo, dated 08.08.1986 and 22.01.1997 respectively. The gist of these two documents is that whenever an employee applies for leave, he shall be informed within a reasonable period i.e. ten days that the leave applied for has been sanctioned or rejected, or he may be referred to the Medical Board in case of doubt, if the leave is applied on medical grounds and if the employee does not respond to the directions of the leave sanctioning authority, such employee can be declared as unauthorised absentee in accordance with the Regulations. It is provided that unless the said procedure is followed, the employee cannot be treated as an unauthorized absentee. In my considered view, these two documents are not of any help to the petitioner, because it is an admitted fact that Regulation 15(4) does not prescribe rejection of leave as a pre-condition to treat an employee as an unauthorized absentee. The law is well settled that a regulation framed by the rule making authority cannot be clarified or amended by issuing circulars or office memos by a functionary subordinate to the rule making authority. It is not the case of the petitioner that the above-mentioned two proceedings were issued by the Board, which framed the Regulations. These two proceedings are merely intra departmental communications issued by a functionary of the Board for the guidance of the Officers. Such communications do not override the Regulations. In this view of the matter, continuous absence of the petitioner from 29.05.1995 to 13.05.1996 attracts the misconduct of unauthorised absence as envisaged by the Regulations. Therefore, the disciplinary authority has not committed any illegality in treating the petitioner as an unauthorized absentee up to 13.05.1996. With regard to the second contention, I find merit in the same. The Enquiry Officer in his report gave a clear finding that the petitioner gave his willingness to join duty on 14.05.1996. The petitioner was given reposting only by proceedings, dated 12.03.1998. The petitioner cannot, therefore, be held responsible for not being on duty from 14.05.1996. Therefore, there is no justification to treat the period beyond 14.05.1996 till he joined duty in pursuance of reposting order, dated 12.03.1998 as dies non. Hence, the order of the disciplinary authority as confirmed in appeal is modified to the extent that the services of the petitioner from 29.05.1995 till 13.05.1996 alone should be treated as dies non. For the above-mentioned reasons, the writ petition is allowed to the extent indicated above. C.V.NAGARJUNA REDDY, J 20th NOVEMBER, 2008. kvni [1] (1999) 1 SCC 759 [2] AIR 1963 SC 1723 [3] (1995) 6 SCC 749 [4] AIR 1997 SC 2286 [5] (2000) 1 SCC 416 [6] (2006) 2 SCC 584 [7] 2006 SCC (L&S) 1635 [8] (2006) 1 SCC 63