*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.22368 OF 2008 AND WRIT PETITION No.23010 OF 2008 % 30/12/2009 # K. Samba Siva Rao … Petitioner Vs. $ 1. Southern Power Distribution Company of AP Limited, Rep. by its Chairman and Managing Director and Appellate Authority, Tirupati, Chittoor dist., and 3 others. .. Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri M. Pitchaiah ^ Counsel for the respondents : Sri P.R. Balaram Reddy, Standing Counsel for AP TRANSCO Cases referred : [1] 2006 (2) ALD 585 (L.B.) 2 2005 (3) ALD 525 (D.B.) THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.22368 OF 2008 AND WRIT PETITION No.23010 OF 2008 DATED: 30.12.2009 Between: K. Samba Siva Rao … Petitioner And 1. Southern Power Distribution Company of AP Limited, Rep. by its Chairman and Managing Director and Appellate Authority, Tirupati, Chittoor dist., and 3 others. .. Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.22368 OF 2008 AND WRIT PETITION No.23010 OF 2008 COMMON ORDER: As common questions of fact and law arise for consideration, these two writ petitions are heard together and decided by this common order. Facts in W.P.No.22368 of 2008: The petitioner was appointed as a Junior Lineman in the year 1993 in the 1st respondent Power Distribution Company. He was converted as Lower Division Clerk in December, 1999 and while he was working in the office of E.R.O./Tenali, Cr.No.187/2002 was registered against him under Section 143, 406, 468, 420 & 120-B of I.P.C. on the file of Kothapeta P.S., Guntur for the alleged misappropriation of the Company’s revenues. Pursuant thereto, the petitioner was placed under suspension pending the disciplinary proceedings contemplated against him vide proceedings of the Superintending Engineer, Guntur, dated 18.02.2003. Thereafter, the petitioner was served with a charge-sheet dated 2.8.2003 issued by the Chief General Manager/Expenditure/Tirupati (4th respondent herein) who was said to have been appointed as Enquiry Officer to conduct departmental enquiry into the alleged irregularities against the petitioner and others resulting in defalcation / misappropriation of company funds to the tune of Rs.73.79 lakhs. The details of the alleged loss suffered by the A.P.S.P.D.C.L. were also furnished. In response to the said charge-sheet, the petitioner submitted his explanation dated 6.1.2004 denying the alleged lapses on his part as well as the alleged connivance with the representatives of the Private Accounting Agencies. Thereafter the Enquiry Officer submitted his report dated 28.2.2004 stating that the charge was established against the petitioner. While accepting the findings of the Enquiry Officer, the 2nd respondent having provisionally concluded to award the punishment of dismissal from service issued a show-cause notice dated 29.04.2005. The petitioner submitted his explanation dated 10.06.2005 contending that the initiation of disciplinary proceedings simultaneously with the criminal proceedings was impermissible under law. It was also contended that the appointment of the Enquiry Officer even before a show-cause notice was issued by the disciplinary authority giving an opportunity to the petitioner to explain the alleged irregularities was illegal and consequently the entire enquiry was vitiated. It was also contended that the charge-sheet being vague and was not accurate as to the alleged irregularities, the same was in violation of principles of natural justice. It was also contended that the Enquiry Officer failed to furnish the list of the witnesses along with the charge-sheet and no opportunity was given to the petitioners to cross-examine the witnesses subsequently produced. However, the 2nd respondent while observing that the said explanation was not satisfactory awarded the punishment of dismissal from service vide his proceedings dated 27.09.2005. Aggrieved by the same, the petitioner preferred an Appeal before the 1st respondent which was rejected by order dated 20.02.2006. In the circumstances, the petitioner filed W.P.No.9131 of 2006. This Court allowed the said writ petition by order dated 1.11.2007 holding that the impugned orders suffered from gross violation of principles of natural justice since the respondents failed to deal with each and every charge, explanation offered and the evidence on record while concluding that the charges were proved. Accordingly, the orders impugned therein were set aside leaving it open to the respondents to pass appropriate reasoned order after putting the petitioner on notice. Pursuant thereto, the 2nd respondent issued a fresh notice dated 1.2.2008 calling upon the petitioner to submit his reply within 15 days as to why severe punishment including the punishment of dismissal from service should not be imposed for the charges held proved. The petitioner submitted his reply dated 18.04.2008 contending inter alia that the proposed action on the basis of the very same findings recorded by the Enquiry Officer were impermissible under law. However, the 2nd respondent by proceedings dated 29.05.2008 again awarded the punishment of dismissal from service. The petitioner’s appeal before the 1st respondent against the said order dated 29.05.2008 ended in dismissal by order dated 8.9.2008. Aggrieved by the same, W.P.No.22368 of 2008 is filed. Facts in W.P.No.23010 of 2008: The petitioner was appointed as Lower Division Clerk on 19.12.1995 in the A.P.S.E.B. Accounts section. While he was working in the office of the AAO/ERO/Town/Guntur, the 2nd respondent vide proceedings dated 23.6.2003 appointed the 4th respondent as Enquiry Officer to conduct departmental enquiry against the petitioner into the allegations levelled against him which included manipulation of records, preparation of duplicate bills, posting of wrong entries and etc., resulting in a financial loss of Rs.4,35,941-15 ps to the Company. Pursuant thereto, the 4th respondent Enquiry Officer issued a charge-sheet and the petitioner submitted his detailed explanation denying all the allegations. Basing on the enquiry report, the 2nd respondent issued the proceedings dated 29.05.2008 dismissing the petitioner from service. Aggrieved by the same, though the petitioner preferred an Appeal the same was rejected by the 1st respondent by order dated 12.09.2008. Hence, the present writ petition challenging the order of dismissal dated 29.5.2008 as confirmed on appeal. Separate counter-affidavits have been filed in the writ petitions reiterating the allegations which were held proved by the Enquiry Officer. It is also contended that the petitioners were given adequate opportunity at every stage and the penalty of dismissal was rightly awarded after examination of the explanations submitted by the petitioners. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioners at the outset contended that the procedure adopted by the 2nd respondent in appointing the Enquiry Officer even before giving an opportunity to the petitioners to explain the alleged irregularities is contrary to the procedure prescribed under Regulation 10 (2) (a) of APSEB Employees Discipline and Appeal Regulations (for short, ‘Regulations’) and therefore on that ground itself the impugned orders are liable to be set aside. On the other hand, the learned counsel for the respondents contended that since no prejudice is caused to the petitioners on account of the alleged non-compliance with Regulation 10 (2) (a) the petitioners cannot be granted any relief. While placing reliance upon the decision of a Larger Bench of this Court in K. SWARNA KUMAR v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS[1] it is further contended by the learned counsel for the respondents that mere breach of the rule is not sufficient to declare the entire proceedings as illegal unless and until it is shown that the petitioners suffered real prejudice on account of the procedural violation. Regulation 10 of the APSEB Employees Discipline and Appeal Regulations, as adapted to the APSPDCL and other Power Distribution Companies deals with the procedure to be followed for awarding the penalties against the delinquent employees. A Division Bench of this Court in CH. APPALA REDDY v. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD.[2] having interpreted the scope and object of Regulation 10 (2) (a) of Regulations held that it mandates that the appointing authority shall appoint an Enquiry Officer when he proposes to impose a major penalty and such a proposal can emerge only after ascertaining the views or obtaining the explanation from the employee concerned. In the cases on hand, the fact that the Enquiry Officers were straightaway appointed without giving any opportunity to the petitioners herein to offer their explanation against the alleged irregularities is not in dispute. Admittedly the charge-sheets were issued by the Enquiry Officers themselves and prior to that there was no opportunity at all to the petitioners to meet the allegations. It is to be noticed that in W.P.No.22368 of 2008 in response to the show-cause notice dated 29.04.2005 the petitioner submitted his explanation raising a specific objection that the procedure followed was contrary to Regulation 10 (2) (a). Similar objection was raised by the petitioner in W.P.No.23010 of 2008 also. However, without considering the said objection, the 2nd respondent passed the orders of dismissal from service. Even the 1st respondent failed to consider the scope of Regulation 10 (2) (a) and confirmed the impugned orders of dismissal from service. In the light of the law laid down by the Division Bench in CH. APPALA REDDY’S case (2 supra) the orders impugned in both the writ petitions cannot be sustained and are liable to be set aside on the ground that the same were in total violation of Regulation 10 (2) (a) of the Regulations. As held by the Larger Bench, the doctrine of prejudice is applicable to the disciplinary proceedings even where the applicable Rules in its entirety has been ignored and it is necessary for the delinquent to establish the real prejudice suffered by him. However, the procedure prescribed in Regulation 10 (2) (a) is of fundamental character and its violation by itself invalidates the entire proceedings since the need to appoint Enquiry Officer would arise only where the disciplinary authority is not satisfied with the explanation offered by the delinquent and proposes to inflict a major penalty. Such a decision can be arrived at only when a show-cause notice or charge- sheet is given by the disciplinary authority himself. Since the respondents committed breach of such fundamental requirement, this Court is of the opinion that the impugned orders cannot be sustained. It is also relevant to note that the 2nd respondent in both the cases while imposing the major penalty of dismissal from service failed to assign any reasons. Except narrating the events and extracting the contents of the explanation offered by the petitioners, the 2nd respondent did not assign any reasons in support of his decision to confirm the punishment proposed. There was no consideration of any of the objections raised by the petitioners much less the specific contention that the procedure adopted was contrary to Regulation 10 (2) (a). The 1st respondent Appellate Authority’s order was equally silent and bereft of any reasons. In the result, both the respondents 1 and 2 failed to apply their mind to the need for compliance with Regulation 10 (2) (a) of Regulations which goes to the very root of the proceedings. In the circumstances, the impugned orders being ex facie arbitrary and illegal are liable to be set aside. Accordingly, the impugned orders passed by the respondents 1 and 2 in both the writ petitions are hereby set aside. In the result, both the Writ Petitions are allowed as prayed for. No costs. _____________ G. ROHINI, J. Dt. 30.12.2009 Gbs Note: L.R. copy to be marked. [1] 2006 (2) ALD 585 (L.B.) [2] 2005 (3) ALD 525 (D.B.)