*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +Writ Petition No.26589 of 2007 % 14.07.2008 Between: P.R. Babu ..... Petitioner AND The A.P.S.R.T.C., rep. by its Managing Director and others .....Respondents ! COUNSEL FOR PETITIONER: Sri E. Madan Mohan Rao ^ COUNSEL FOR RESPONDENTS: Standing Counsel for respondents < Gist: > Head Note: ? CITATIONS: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.26589 of 2007 JUDGMENT: The petitioner is employed as a Conductor, in the Gokavaram Depot of A.P.S.R.T.C. The Depot Manager, the 3rd respondent herein, issued a charge-sheet, dated 05-01-2007, alleging certain cash and ticket irregularities. On the same day, he passed an order, placing the petitioner under suspension. The petitioner has submitted his explanation, and after conclusion of the domestic inquiry, a report was submitted, on 23-08-2007. Thereafter, on a representation made by the petitioner, the 3rd respondent passed an order, dated 04-09-2007, revoking the suspension. The petitioner approached the Regional Manager, Rajahmundry, the 2nd respondent herein, for orders of posting. The 2nd respondent called for the entire record of the disciplinary proceedings, against the petitioner. On receiving the same, he issued a show cause notice, dated 01-10-2007, directing the petitioner, as to why the punishment of removal from service shall not be imposed on him. Petitioner submitted his explanation on 22-10-2007. Thereafter, the 2nd respondent issued proceedings, dated 06-11-2007, directing removal of the petitioner from service. The said proceedings are challenged in this writ petition. A counter-affidavit is filed, justifying the order passed by the 2nd respondent. It is stated that the 2nd respondent is conferred with the suo motu powers, to examine and pass appropriate orders, after calling for the file, in relation to any order, passed by the subordinate Authorities. Sri E. Madan Mohan Rao, learned counsel for the petitioner, submits that the impugned order is vitiated in many respects, and that it cannot be sustained in law. He contends that the disciplinary proceedings against the petitioner were initiated by the Appointing Authority, the 3rd respondent, and it was totally impermissble for the 2nd respondent, to have withdrawn the proceedings, to himself, halfway through, and pass the order of removal. He submits that in the hierarchy of the Authorities, provided for under the Service Regulations, the 2nd respondent would figure, only at the stage of review, in the event of any order of removal being passed by the 2nd respondent, and an appeal to the Divisional Manager, against the same, being rejected. Learned Standing Counsel for the respondents, on the other hand, submits that the Service Regulations of the Corporation confer power upon the 2nd respondent, to call for the record of any authority, to satisfy himself, as to propriety and correctness thereof, and to pass the consequential order. He contends that on noticing certain defects in the proceedings before the 3rd respondent, the 2nd respondent issued show cause notice to the petitioner, and on consideration thereof, caused departmental inquiry, and thereafter passed the impugned order. It is urged that the writ petition is not maintainable, and that the petitioner has to workout his remedies before the Labour Court. The 3rd respondent is conferred with the power to initiate disciplinary proceedings and to pass appropriate orders, in terms of the Regulations, against the Conductors, Drivers and other subordinate employees, in his Depot. A charge memo dated 22-12-2006 was issued to the petitioner, alleging cash and ticket irregularities. This was followed by a charge-sheet dated 05-01-2007, and an order of suspension, of the same day. The departmental inquiry was conducted, and inquiry report was submitted on 23-08-2007. On 04-09-2007, the 3rd respondent issued a show cause notice to the petitioner, proposing certain punishment. On the same day, he has revoked the order of punishment, and directed that the petitioner shall approach the Regional Manager, the 2nd respondent, for orders of posting. When the petitioner approached the 2nd respondent, not only did he refuse to issue orders of posting, but also has issued a show cause notice dated 01-10-2007, proposing the punishment of removal from service. The petitioner submitted his explanation, and the 2nd respondent passed the impugned order. Normally, the occasion for a superior authority in the hierarchy of an organization, to examine the legality, correctness or propriety of an order passed by a subordinate authority arises, when an appeal or review is preferred by the person, aggrieved by such orders. Instances, however, are not lacking, where the superior authorities are conferred with the power to call for the record, in relation to orders passed by the subordinate authorities, even where no formal appeal or review is presented by any party. In the judicial parlance, those are known as suo motu powers. The object of conferring such powers is to ensure that illegality, if any, committed by an inferior authority, does not become perpetrated, on account of the fact that no formal appeal or review is filed. The situation may arise, either when an individual, though feels aggrieved by an order of an authority, lower in the rank, does not file or, is incapacitated from filing the appeal, or where he is beneficiary of the concerned order. Either way, the superior authority conferred with these suo motu powers, can set at naught, the illegality. Even the normal Rules of Limitation are made inapplicable to exercise such powers, particularly, where elements of fraud are noticed. Notwithstanding the relatively large scope of such powers, an occasion to exercise the same would arise only when the subordinate authority had passed an order, leading to adjudication of dispute. Conversely, the basis for exercise of suo motu powers by an authority, does not exist, if no order, as such was passed by his subordinate authority. Further, the authority conferred with such powers, cannot seize, snatch, or withdraw, the on-going proceedings before his subordinate, and cannot assume to himself, the powers of his subordinate, nor can wear the mantle of the latter. In such a case, he is prone to act as the subordinate authority itself. Regulation 29 of the A.P.S.R.T.C. Employees (Classification, Control and Appeal) Regulations, 1967 (for short ‘the Regulation’), under which the 2nd respondent exercised his powers, in the instant case, reads as under: “Regulation 29: Revision of orders in disciplinary cases: The authority higher than the authority to which an appeal against an order imposing any of the penalties specified in Regulation 8 of A.P.S.R.T.C. Employees (CC&A) Regulations, 1967, lies, as specified by the Corporation by a resolution, may of its own motion or otherwise call for the records of the case in a disciplinary proceedings, revise any order in such a case and pass such orders as it deems fit, as if the employee had preferred an appeal against such order. Provided that— i. an order imposing or enhancing a penalty shall not be passed unless the employee concerned has been given an opportunity of making any representation which he may wish to make against such penalty; and ii. if the authority as above proposes to impose any of the penalties specified in items (viii) and (ix) of Regulation 8 in case where an enquiry in accordance with the provisions of clause (2) to (14) of Regulation 12 has not already been held in the case, the appellate authority shall, subject to the provisions of Regulation 13, direct that such enquiry be held and thereafter on consideration of the proceedings of such enquiry, pass such orders as it may deem fit. iii. No action under this Regulation shall be initiated more than 6 months after the date of the order to be revised.” The 2nd respondent figures only at the third step, in the scheme of the disciplinary proceedings. While the 3rd respondent is the disciplinary authority, an appeal against an order adverse to an employee is provided to the Divisional Manager. A review lies to the 2nd respondent, in the event of the appeal to the Divisional Manager, being unsuccessful. The necessity or occasion for the 2nd respondent could have arisen, if only the 3rd respondent passed an order. It would have been immaterial whether the petitioner was exonerated of the charges, framed against him, or any punishment. Admittedly, no such order was passed by the 3rd respondent against the petitioner. Even before that stage had arisen, the 2nd respondent swung into action, picking up a strand, viz., the order of revocation of suspension, and assumed to himself, the role of the 3rd respondent, by issuing a fresh show cause notice. This exercise is totally beyond the purview of Regulation 29. The 2nd respondent did not realize, or visualize that the petitioner was already issued a show cause notice, dated 04-09-2007, by the disciplinary authority, the 3rd respondent, and by issuing a show cause notice by himself, he made the petitioner to answer both. Another curious aspect is that both the show cause notices are based on the same inquiry report dated 23-08-2007. The petitioner was pushed to a quandary, of not being in a position to choose, which show cause notice, to answer. The 2nd respondent has pre-empted the 3rd respondent from proceeding further, by issuing the impugned proceedings, directing removal of the petitioner. The whole exercise smacks, either of arbitrariness of considerable intensity or inexperience of disturbing levels. Either way, it cannot be sustained in law. There is another angle to the issue. It is possible to treat the order dated 04-09-2007 passed by the 3rd respondent, as the subject matter of the suo motu proceedings, before 3rd respondent. In such an event, the maximum that he could have done was, to set aside the order, revoking the suspension of the petitioner. Beyond that, he did not have the jurisdiction. He could not have intruded in to the very disciplinary proceedings, pushing aside the 3rd respondent, under the guise of reviewing the order, revoking suspension. Viewed from any angle, the action of the 2nd respondent cannot be sustained in law. The writ petition is accordingly allowed, and the impugned order, as well as the show cause notice dated 01-10-2007, issued by the 2nd respondent are set aside. The petitioner shall submit his explanation to the show cause notice dated 04-09-2007, issued by the 3rd respondent, within a period of one week from the date of receipt of a copy of this order, if not already submitted. The 3rd respondent shall examine the same and pass appropriate orders, in accordance with law. In case, the 2nd respondent intends to proceed further with the matter, it shall be open to do so, strictly in accordance with law. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.14-07-2008. Note: L.R. copy to be marked. (B/O) KO*