HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.25710 of 2000 Date: 25-3-2011 Between N.Bikshapathi … Petitioner and 1. The Director, R/D & HRD, Transmission Corporation of A.P. Limited, Vidyutsoudha, Hyderabad and 3 others … Respondents HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.25710 of 2000 Order: This writ petition is filed under Article 226 of the Constitution of India to quash Memo No.CE/DC/DM-V/35-P1/99-11 dated 30-9-1999 issued by the 1st respondent as illegal, arbitrary, discriminatory, unjust, mala fide and sub versive of Articles 14, 16, 21 and 311(2) of the Constitution of India. 2. The brief averments of the petition are as follows: The petitioner was originally appointed as Foreman with L.E.E. qualification during the year 1977 in K.T.P.S., Palvancha. Subsequently he acquired A.M.I.E. qualification during the year 1982 and was appointed as Assistant Engineer by transfer (Elec.) in the year 1984. He was thereafter further promoted as Assistant Divisional Engineer on 06-01-1997. Since then he is working in the said post without any complaint whatsoever. The outgoing Assistant Divisional Engineer Sri K.Nagabushana Chary had not handed over sealing plier or seal bits to him as there was no sealing plier to Assistant Divisional Engineer/H.T. As per the existing conditions, the A.A.E./H.T. was using the sealing plier taken from his predecessor and therefore the sealing plier and seal bits are under his custody and the accounts bits also are being maintained by him. The sealing plier was allotted to him on 12-8-1998. On 04-5-1998 the petitioner along with his staff went to Sircilla for attending complaint of H.T. Services and noticed that 20 Nos., seal bits bunch (from 334681 to 334700) was missed from the tool box. Thereupon he asked the A.A.E./H.T. about the missing of seals and he was told that the said seals were missed at the time of drawing from the stores. Therefore he asked the A.A.E. to give written explanation for missing of seal bits and the same was also brought to the notice of Divisional Engineer/M&P, Karimnagar duly enclosing the letter of A.A.E. He also warned the A.A.E./HT not to repeat such lapses in future. While so, the 3rd respondent issued Memo No.CE/DC/DM-V/35-P1/99-3 dated 18-01-1999 alleging that the petitioner was aware of missing seal bits drawn by A.A.E./H.T. meters, Karimnagar and he has not brought those facts to light resulting heavy loss during the period from May, 1998 to November, 1998 and therefore directed him to show cause within 15 days as to why the punishment of stoppage of two increments with cumulative effect should not be imposed on him. On that, he submitted an explanation dated 10-02-1999 to the show cause notice explaining in greater detail about the missing of the seals that immediately on noticing the shortage of 20 numbers seal bits and calling for the explanation from the A.A.E./H.T. and the same was brought to the notice of D.E.E., M&P, Karimnagar promptly in his Lr.D.No.282/98, dated 04-5-1998 for taking further action and therefore he had performed his duties. He also submitted that he is not aware of the Note written by the said A.A.E./HT in the seal bit register as he was hospitalized for one month from 17-6-1998 due to accidental injury to spinal cord. Therefore, he submitted that he has no mala fide intention in suppressing the facts and on the other hand he probed into the facts of missing of seals and brought the information to the notice of the superiors and therefore requested to drop the proposed punishment. But, the 1st respondent issued the impugned Memo dated 30-9-1999 mechanically rejecting his explanation without considering the contentions raised by him in his explanation and confirmed the punishment of stoppage of two increments with cumulative effect, which is clearly illegal and arbitrary. He had therefore preferred a detailed appeal to the 4th respondent on 31-01-2000 under Regulations 18 and 14A of the Discipline and Appeal Regulations and requested to review the punishment and exonerate him of the charge by setting aside the punishment. He also submitted that the punishment of two increments with cumulative effect was inflicted without conducting a detailed departmental enquiry into the missing of number of seal bits and suppression of facts and that if only a detailed department enquiry was conducted, the truth would have come out and that he was deprived of fair and reasonable opportunity of putting forth his defence properly and effectively. While so, the 4th respondent issued Memo No.CE/DC/DE/DC/35-P1/99-15 dated 25-5-2000 rejecting his case on the ground that there are no points to merit consideration, which is clearly illegal, arbitrary and discriminatory besides being opposed to all mandatory principles of equity, justice and fair play. According to Regulation 10(2) of the A.P.S.E.B. Employees’ Discipline and Appeal Regulations, the authority competent to impose any major penalty shall appoint an Enquiry Officer of shall itself hold an enquiry either suo moto or on a direction from a higher authority. In every such case the grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged together with the statement of allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. The petitioner therefore contends that no such detailed procedure as contemplated by the Regulations was ever conducted or made in this case and he was unjustly punished with the major punishment of stoppage of two increments with cumulative effect without any justification or reasonable cause, which is clearly illegal, arbitrary and discriminatory and therefore, the impugned Memo dated 30-9-1999 issued by the 1st respondent is liable to be quashed. 3. During the pendency of the writ petition, the 1st respondent was deleted as per court order dated 18-9-2008 in W.P.M.P.No.15201 of 2008. 4. The Chief General Manager (HRD & Trg.)/AP Transco/ Vidyut Soudha/Hyderabad filed a Counter-Affidavit on behalf of the respondents admitting that the petitioner has informed the DE/M&P/Karimnagar regarding missing of seal bits bunch pertaining to Karimnagar circle. But the ADE has not taken any action to lodge a police complaint for missing of seal bits and to pursue the matter. This has caused loss to AP Transco. Based on the report of the DE/DPE wing regarding missing of seal bits from numbers 334681 to 334700 pertaining to Karimnagar circle and it was later found that those seal bit Nos.334694, 334691 and 334693 are at the HT service of M/s. Ganga Reddy Estates (The Central Court, Lakdikapool) by the DPE wing during their inspection, after careful examination of the report of the DPE wing by the then Chairman of erstwhile APSEB a show cause notice was issued to the petitioner vide Memo No.CE/DC/DMV/35-P1/99-3 dated 18-01-1999 by the 3rd respondent proposing the punishment of stoppage of two increments with cumulative effect. It is also a fact that the petitioner has submitted his explanation to the show cause notice on 10-02-1999. But he pleaded that he is not aware of the Note written by the AAE/HT in the seal bit register is not correct. The AAE/HT, Karimnagar suppressed the issue of missing of 20 Nos., seal bits by making an entry in the seal bit registered that the seal bits from 334681 to 334700 are used to CTPT set on 21-5-1998 but these are waster due to failure of incoming cable while test charging and same are not entered in field books and the same was supported by the ADE/HT, DE/HT, Karimnagar with mala fide intention. The departmental action was also taken on the other concerned employees along with the petitioner for their failure to investigate into the matter and take immediate action. Thus he failed on both the counts of suppressing the fact as well as not pursuing for the missing seals which lead to loss of revenue to the organization. The Chairman and Managing Director/AP Transco after careful examination of the explanation of the petitioner to the show cause notice has observed that the explanation is not relevant and convincing and hence confirmed the punishment of stoppage of two increments with cumulative effect vide impugned Memo dated 30-9- 1999. Therefore, the averments of the petitioner that without considering the explanation and confirmed the punishment is illegal, arbitrary, unjust and untenable. There is evidence in the report of the DE/DPE wing about lapses on the part of the ADE and that the disciplinary authority having satisfied with report a show cause notice dated 18-01-1999 was issued to the petitioner duly indicating the findings of the report of DE/DPE wing and hence enquiry is not conducted. The petitioner has submitted his appeal to the CMD/AP Transco on 31-01-2000 praying the respondent to exonerate from the charge by setting aside the punishment. After careful examination in the appeal it was observed that there are no new points which merit consideration. The petitioner has not taken any action to lodge any police complaint for missing of seal bits and pursued the matter and not bothered about the implications of missing of seals. Therefore, the appeal of the petitioner was rejected vide Memo No.CE/DC/DE/DC/35-P1/99-15 dated 25-5-2000. There is prima facie evidence in the DE/DPE report and the disciplinary authority having satisfied with the report of the DE/DPE wing the departmental enquiry is not conducted. Therefore, the averment of the petitioner that rejecting the appeal is illegal, arbitrary, discriminatory and unjust is not acceptable. As per Regulation 10(1) of the Discipline and Appeal Regulation, the punishment of stoppage of two increments with cumulative effect is a minor penalty. There is prima facie evidence in the DE/DPE report and after issuing show cause notice and after careful examination of the explanation, it was decided to confirm the punishment. Accordingly, final order dated 30-9-1999 were issued to the petitioner forming the punishment and his appeal also was rejected. Therefore, the writ petition filed by the petitioner is not maintainable under law and is liable to be dismissed. 5. The point for consideration is, whether the impugned Memo dated 30-9-1999 issued by the 1st respondent is illegal and arbitrary and is liable to be quashed ? 6. Point:- The learned counsel for the petitioner submitted that the respondents-AP Transco awarded punishment to the petitioner without conducting any enquiry as stipulated under Regulation 10(2) of APSEB Employees’ (Discipline and Appeal) Regulations though the respondents are aware that the petitioner is in no way responsible for missing of sealing plier and sealing bits. 7. In support of his contention, the learned counsel for the petitioner placed reliance on a judgment of this Court in Dr. I.V. Krishna Murthy v. Board of Directors (A.P.)[1]. The petitioner therein filed a writ petition against the punishment of withholding of his two increments for misconduct on the ground of failure to take prompt remedial measures in preventing the spoilage of the cattle feed. Spoilage of feed was entirely due to the causes beyond his control. He was not directly responsible for the alleged loss. Another officer was directly incharge of the cattle feed. Earlier in similar circumstances the Federation had condoned the loss due to unforeseen circumstances, which are beyond human control. No proper application of mind even by appellate authority. The appellate authority did not comply with the requirement of Rule 35 of A.P. Dairy Development Cooperative Federation Ltd. (Conduct, Discipline and Appeal) Rules. In the said circumstances, imposition of punishment being illegal is quashed. 8. The learned counsel for the petitioner further placed reliance on a judgment in Bhagwati Prasad v. Food Corporation of India[2]. The District Manager of the Food Corporation of India was removed from the service on the ground of misconduct, the conclusion by the Enquiry Officer that a charge of misconduct was proved against him inasmuch as he paid higher rates to a certain firm for purchasing the pateramats although certain other firm was prepared to supply the same commodity at slightly above the ceiling rates prescribed by the Regional Office of the Corporation was based on no evidence and without a proper appreciation of the background and circumstances in which the Officer had to function at the relevant time, because there were circumstances in which the officer was constrained to purchase a huge quantity of mats and that other firm was a small scale supplier and it had subsequently withdrawn its offer of supplying the commodity at the same rate. In such circumstances, the Hon’ble Supreme Court held that the order of removal from service is liable to be set aside. 9. The learned counsel for the petitioner has also placed reliance on a judgment in Kulwant Singh Gill v. Stat of Punjab (S.C.)[3]. The Hon’ble Supreme Court while dealing with the issue of stoppage of increments with cumulative effect, observed that the effect of such major penalty or minor penalty of stoppage of increments with cumulative effect that the employee is reduced in his time-scale by a number of steps for which the increments are withheld and it is in perpetuity during the rest of his tenure and it falls within the rule 5(v). 10. The petitioner contended that after he was promoted as Assistant Divisional Engineer in the year 1997, the outgoing Assistant Divisional Engineer Sri K.Nagabushana Chary had not handed over sealing plier or seal bits to him. As per the then existing conditions, the A.A.E./H.T. was using the sealing plier taken from his predecessor and therefore the sealing plier and seal bits are under his custody and the account bits also were being maintained by him and that the sealing plier was allotted to him on 12-8-1998. It is also the case of the petitioner that on 04-5-1998 when he was attending the complaint of H.T. Services at Sircilla he noticed missing of 20 Nos., seal bits bunch. Therefore, he sought for the explanation of the A.A.E./H.T. for missing of the same and also brought to the notice of the Divisional Engineer/M&P, Karimnagar by duly enclosing the letter of A.A.E. Thereafter, he was issued a Memo and show cause notice and passed the impugned order without conducting any enquiry. 11. On the other hand, the learned counsel for the respondents submitted that since the petitioner was awarded minor penalty of stoppage of two increments with cumulative effect and considering the nature of the charges and the explanation of the petitioner, the Department felt that there is no need to conduct any regular enquiry and passed the impugned order. 12. When the petitioner contends that he was not entrusted with the sealing plier and seal bits and they are in the care and custody of the A.A.E./H.T., to whom they were allotted in the year 1998. Awarding punishment to the petitioner without enquiry appears to be unwarranted. When the petitioner is contending from the beginning that he is in no way responsible about the missing of seal bits and after coming to know about the missing through A.A.E./H.T., he called for the explanation and informed the superior officers. Even if minor punishment is awarded on the above facts and circumstances, the petitioner has to forego number of steps from his time scale of pay, if he is found not guilty if an enquiry is conducted on the whole episode. 13. The respondents in their counter-affidavit clearly admitted that the impugned order was passed without conducting any enquiry since the respondent felt that there is no need to conduct enquiry. 14. If the contention of the petitioner that he was not entrusted with sealing plier and seal bits and he is not responsible for missing of seal bits is found to be true, he cannot be penalized for the dereliction of duties of other employees on the simple ground that the petitioner failed to give complaint to the Police. When the petitioner himself called for explanation of the A.A.E./HT in writing and informed about the missing of seal bits to the superior officers, the Divisional Engineer/M&P, Karimnagar ought to have lodged a complaint. In the circumstances, when number of officers are involved in missing of seal bits, the respondents-AP Transco are not justified in awarding punishment against the petitioner and others without conducting a regular enquiry. The impugned Memo dated 30-9-1999 issued by the 1st respondent do not disclose any valid findings about the involvement of the petitioner for missing of seal bits and the reasons mentioned in the impugned order also appear to be not proper and convincing. The impugned order is therefore vitiated and is in violation of the principles of natural justice and the same cannot be sustained. 15. In view of the facts and circumstances and for the aforesaid reasons, the writ petition is allowed. The impugned Memo dated 30-9- 1999 issued by the 1st respondent imposing punishment of stoppage of two increments with cumulative effect is set aside. However, the respondents are at liberty to pass appropriate orders after giving reasonable opportunity to the petitioner and after conducting a regular departmental enquiry. _____________________ V.SURI APPA RAO, J. 25th March, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.25710 of 2000 (P.D. order) 25th March, 2011. [1] 1996 (4) SLR 71 [2] A.I.R. 1988 SUPREME COURT 434 [3] 1990 (6) SLR 73