IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.3455 of 2008 Between: D. Balakrishna, S.E./Retd., S/o.late Sri D. Ramanuja Soory, Aged about 68 years, R/o.D.No.10-4A, Sri Saikrishna Nagar, behind Birla Company, Kurnool – 518 002 … Petitioner And Andhra Pradesh Transmission Corporation, Represented by its Chairman & Managing Director, Vidyut Soudha, Khairatabad, Hyderabad, and two others … Respondents Order: The petitioner, who retired from the service of Andhra Pradesh Transmission Corporation as Superintending Engineer, has filed this writ petition seeking directions by way of Mandamus to restrain the respondents from giving effect to the order dated 20-09-2006 passed in Memo No.GFM 9HRD 7 TRD/DE/DC/298-P1/93-12, by the second respondent- Joint Managing Director (HRD) Commercial and the order dated 15-12-2007 passed in Memo No.CGM(HRD & TRD/DE/DC/298-P193-14 by the appellate authority and to set-aside the said orders with consequential directions to the respondents to release all terminal benefits including deducted amount, payment of gratuity with interest from the date of eligibility to the date of payment. 2. By order dated 20-09-2006, the petitioner herein was imposed penalty in the disciplinary proceedings initiated against him to recover an amount of Rs.6,61,873/- besides 30% cut in pension permanently and to treat the period of suspension as dies non. As against the same, the petitioner preferred an appeal, which was rejected, confirming the penalty imposed in the order dated 20-09-2006, by the appellate authority by order dated 15- 12-2007. 3. The petitioner was initially appointed on 07-11-1962 as Junior Engineer; thereafter he was promoted from time to time and was ultimately working as Superintending Engineer in Operation Circle, Guntur during the year 1997. During the year 1997, a case was registered by Anti Corruption Bureau against the petitioner in Cr.No.8/ACB-VAJ/96 on 16-05-1996 under Section 13(2) read with Section 13(1) (c) read with Section 13(2) and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and also Sections 409, 418, 465, 471 and 477-A of the Indian Penal Code. There were allegations of corruption and other irregularities against the petitioner in purchase of material. In view of registration of the aforesaid case against the petitioner, the disciplinary authority, in exercise of powers under Regulation 11(a) (ii) of APSE Board Employees Discipline and Appeal Regulations, which are adopted by A.P. Transco., passed order dated 31-10-1997 suspending the petitioner from service. On the same day, orders were issued by the Member Secretary of the Board appointing Chief Engineer/Operation/Hyderabad as Enquiry Officer to enquire into the allegations of corruption and other irregularities in purchase of material by the petitioner who was working as Superintending Engineer in Operation Circle, Guntur. The enquiry officer issued charge sheet vide proceedings dated 05-03-1998 in Memo No.CED/Peshi/F.Confd/D.No.12/98, framing as many as seven charges against the petitioner. The charges read as under “ 1 . That Sri D.Balakrishna while working as S.E./Operation, APSEB/Guntur called for tenders for the supply of fuse units vide LPO No.201/91-92. Only four firms submitted tenders. Except the quotation of M/s.H.R.P. Enterprises, Hyderabad all the remaining three quotations were written by one person. The quotations of M/s.Srinivasa Enterprises, Bapatla and M/s.Sri Satya Sai Constructions and General contractors the rate quoted inclusive of all taxes was struck off and the work “tax 14.4% extra are added respectively under condition No.5. In view of these corrections the value of the order increased by Rs.20,000/- causing loss to the Board. 2. That the A.O. while working as SE(O)/APSEB/GUNTUR called for the tenders for the supply of P.G. Clamps 1000 nos vide LPO No.195/91-92. Only 6 firms sent their quotations. In the quotation of M/s.Rajadhani Enterprises the rate quoted both in figures and words were corrected and the rate was corrected from Rs.181/- to 189/- in the quotations of M/s.Vani Enterprises the rate is corrected from Rs.198/- to 188/-. Due to the above corrections, the purchase order which should be placed on M/s.Rajadhani Enterprises, Hyderabad for a value of Rs.1,81,000/- has been placed on M/s.Vani Enterprises, Hyderabad for a value of Rs.1,88,000/- increasing the value of the purchase orders by Rs.7,000/- 3. That the A.O. while acting as thus, called for the tenders for the supply of “U” clamps made out of copper strips vide LPO No.191/91-92. The quotations were received from (i) Raghava Enterprises, Bapatla for Rs.200/- each (ii) M/s. Sri Satya Sai constructions and General contractors Edumudi for Rs.175/- each (iii) M/s. Sri Srinivasa Enterprises, Bapatla for Rs.160/- each. In the quotation of M/s.Raghava Enterprises the figure ‘’1’’ against the rate quoted Rs.100/- is corrected as “2” to make the rate as Rs.200/-. In the quotation of M.s. Srinivasa Enterprises, Bapatla the figure “1” is added to make the rate of Rs.60/- to Rs.160/-. Because of the above corrections the value of the material ordered has increased from Rs.7000/- to Rs.20,000/-. 4. That the A.O. while acting as thus, called for the tenders for the supply of M.S.Bolts and Nuts weighting 900 Kgs vide LPO No.187/91- 92. Received the following three quotations and the rates are corrected as below: (i) M/s. Maruthi and Company, Guntur Rs.26.15 corrected to Rs.26.75 (ii) M/s. Pavan Enterprises, Guntur Rs.25.65 corrected to Rs.26.65 (iii) M/s. Padmaja Traders, Guntur Rs.26.80 no corrections By the above corrections, the value of the order increased from Rs.19,237.50 to Rs.19,987.50/- 5. That the A.O. while working as thus, called for the tenders for the supply of TC Fuse Wire Vide LPO No.42/92-93. Quotations were received from four firms and the MOS placed order on M/s.Raghava Enterprises, Bapatla for the supply of 33 KGs of TC Fuse wire at the rate of Rs.350/- per JG while the S.E./O/Guntur placed order at the rate of Rs.230/- per KG during the month of 9/94 vide LPO Nos.36/94 and 37/94. Thus the A.O. placed order at higher rate and cause loss to the Board to a tune of Rs.39,600/- 6. That the A.O. while working as thus, called for the tenders for the supply Bus Bar copper strips/plates 1500 nos at the rate of Rs.25/- each vide LPO No.14/92-93 and placed order on M/s.Raghava Enterprises, Bapatla for increased quantity of 2000 Nos. at the rate of Rs.85/- each and paid Rs.1,70,000/- instead of Rs.37,500/- and caused loss of Rs.1,32,000/- to the Board. 7. That the A.O. while working as thus, called for the tenders for the supply of Bus Bar insulators along with GI Bolts washers and copper plates 450 Nos at the rate of Rs.25/- each vide LPO No.32/92-93 placed order on M/s.Sri Satya Sai constructions and General Contractors for the supply of 550 nos copper plates at the rate of Rs.165/- each. The weight of each copper plate would be 200 gms and it would cost Rs.30/- when the rate of copper per KG was Rs.150/-. The AO placed purchase order for Rs.165/- instead of Rs.30/- an extra rate of Rs.135/- per copper plate and it is worked out to Rs.72,250/-. Another supplementary charge was framed vide charge sheet dated 18-05-1998 issued in Memo No.CED/Peshi/F.Confd/D.No.17/98, which reads as under: “Sri D. Balakrishna while working as Superintending Engineer, Operation Guntur alleged to have purchased material very much in excess of annual requirements. It is also reported that in spite of repeated instructions by the Chief Engineer, Operation, Vijayawada Zone he went on placing orders and awarded contracts over and above the cash grants allowed to him to gain pecuniary advantages. Some of the material ordered during the period from 10/91 to 5/93 remained idle till 4/94 and some of the items were round to be in stores stock even as on 2.1.95.” 4. In reply to the aforesaid charges, a lengthy and elaborate explanation was filed by the petitioner on 01-10- 1998. In the said explanation, the petitioner denied all the charges framed against him. The Chief Engineer, who was appointed as enquiry officer, conducted enquiry and submitted report dated 02-05-2003 by recording finding that charges 1, 2, 3, 4 and 8 framed against the petitioner are not proved, whereas charges 5, 6 and 7 are proved. In view of the said report, a show-cause notice dated 29- 09-2003/08-10-2003 in Memo No.GFM(PER)/DE/DC/298- P1/93-5 was issued to the petitioner. In the said show- cause notice, it is stated that A.P.Transco., has carefully examined the enquiry report with reference to the charges framed against the petitioner/delinquent officer and observed that charges 1 to 4 relate to corrections made in the rates quoted by suppliers which are established during the preliminary enquiry. While making such observations and disagreeing with the findings recorded by the enquiry officer on charges 1 to 4, a provisional conclusion was arrived at to recover an amount of Rs.2,72,025/- being the loss caused to the Board and to impose punishment of 30% cut in pension for a period of three years by treating the period of suspension as such and explanation of the petitioner was called for. In reply to the said show-cause notice, the petitioner filed his explanation on 30-10-2003. Thereafter, further revised show-cause notice was issued on 26-07-2006 relying on the findings recorded in the preliminary enquiry with regard to charges 1 to 4 and the findings recorded by the enquiry officer with regard to charges 5 to 7 and a provisional conclusion was arrived at to recover an amount of Rs.2,72,025/- with interest at 10% from the date of misappropriation, besides awarding punishment of 30% cut in pension permanently and to treat the period of suspension as dies non and the petitioner was called upon to show cause why such penalty shall not be imposed on him. Even after issuing revised show-cause notice, the petitioner submitted explanation reiterating the earlier stand and also stated that all the identical charges are pending consideration in C.C.No.12/97 on the file of the Special Judge for SPE and ACB Cases, Vijayawada. Though the charges which are framed in the disciplinary proceedings and the crime registered against the petitioner are identical, without waiting for the outcome of the verdict in the pending C.C., the disciplinary authority passed final order dated 20-09-2006 imposing punishment to recover an amount of Rs.6,61,873/- (inclusive of interest @ 10%) besides 30% cut in pension permanently and to treat the period of suspension as dies non. So far as criminal case registered against the petitioner which was pending in C.C.No.12/97 on the file of the Special Judge for SPE and ACB Cases, Vijayawada is concerned, the same was disposed of by judgment dated 21-09-2006 by recording a finding that the prosecution failed to prove the guilt of the petitioner for the charges framed against him and acquitted accordingly. As the judgment in the criminal case has come immediately after the date of passing of the final order in the disciplinary proceedings, the petitioner carried the matter by way of departmental appeal before the appellate authority and also relied on the findings recorded by the Special Court in its judgment in C.C.No.12/97. Before the appellate authority, the petitioner herein raised detailed grounds in support of his case and also relied on the findings recorded by the Special Court. There is a specific pleading in the grounds of appeal that all the charges are covered in the criminal case registered against him in which he was acquitted and he relied on the findings recorded in the judgment rendered in the said criminal case. But, the appellate authority, by order dated 15-12- 2007, passed in Memo No.CGM(HRD & TRG/DE/DC/298- P193-14, dismissed the appeal by recording a finding that the departmental appeal and criminal proceedings are different. It is stated in the order of the appellate authority that, in criminal proceedings standard of proof required is beyond reasonable doubt, while in departmental proceedings, preponderance of probabilities are sufficient to prove the charges against an the delinquent officer. While recording a finding that the judgment of the Criminal Court is not binding, the appellate authority rejected the appeal of the petitioner. 5. Heard Sri S. Ravindranath, learned counsel for the petitioner and Sri P.R. Balarami Reddy, learned Standing Counsel appearing for the respondents. 6. It is submitted by learned counsel for the petitioner that though there is no basis or evidence in support of the charges framed against the petitioner, the enquiry officer has held that charges 5, 6 and 7 are proved. It is submitted that in spite of the findings recorded by the enquiry officer on the other charges in favour of the petitioner, the disciplinary authority has differed with the findings and proceeded to impose penalty referring to the preliminary enquiry conducted before initiation of disciplinary proceedings. It is submitted by learned counsel that in absence of any notice and opportunity to the petitioner, it is not open to the disciplinary authority to differ with the findings recorded by the enquiry officer, relying only on the preliminary enquiry conducted. It is further submitted that once disciplinary proceedings are initiated, all further steps shall be taken only based on the findings in the regular enquiry, but when in the regular enquiry same charges are framed, it is not open to the disciplinary authority to go back to the preliminary enquiry and impose penalty. It is also submitted that, in the instant case, with regard to charges 5, 6 and 7, though there is no evidence against the petitioner, the enquiry officer without discussing the evidence on record has simply recorded his findings against the petitioner. It is submitted that the very same charges were also the subject matter of criminal proceedings and the Special Court which has tried the charges against the petitioner has considered the matter elaborately and recorded its findings to the effect that the charges against the petitioner are held not proved. It is submitted that as the evidence in both the proceedings are common and charges framed are identical, it is not open to the respondents to impose any penalty based on the findings recorded by the enquiry officer. It is further submitted that as the petitioner was allowed to retire subject to the outcome of the proceedings before the Criminal Court, it was not open to the disciplinary authority to initiate disciplinary proceedings after his retirement from service. Lastly, it is submitted that there was abnormal delay on the part of the employer in finalizing disciplinary proceedings; as such for no fault of the petitioner and in absence of any evidence in support of the charges, final orders are passed in the disciplinary proceedings. It is further submitted that the appellate authority also did not consider the appeal preferred by the petitioner in the light of the findings recorded by the Special Court and though the charges are identical in both the proceedings and similar evidence was adduced, in spite of the same, the appellate authority, without considering the detailed grounds raised by the petitioner, simply rejected the appeal on the ground that criminal proceedings and disciplinary proceedings are different and stand on a different footing. 7. On the other hand, it is submitted by Sri P.R. Balarami Reddy, learned Standing Counsel appearing for the respondents-company that the petitioner, who was working as Superintending Engineer during the relevant time has committed several irregularities and has allowed correction of quotations which he has called for to secure material to the Company. It is further submitted that he has also placed orders for purchase of the material at higher rates and caused loss to the Company. It is also submitted that in view of the evidence on record, the disciplinary authority has recorded its findings and based on the same final orders are passed. Learned counsel would submit that in view of the corrections made in the quotations and the higher rates paid by the petitioner for the material purchased, there was loss to the Company; as such it is always open to recover the same with interest at 10% p.a. Learned counsel would further submit that if the disciplinary authority has differed with the findings recorded by the enquiry officer; without giving any notice, the matter is to be remitted back for fresh consideration from that stage. Further submission is made by the learned counsel that merely because the petitioner is acquitted in the criminal proceedings, where the evidence required to prove the guilt of the accused shall be beyond reasonable doubt, that will not preclude the respondents from initiating independent departmental proceedings and pass appropriate orders as per the Regulations. 8. I have perused the affidavit filed in support of the writ petition, the counter-affidavit filed on behalf of the respondents-Company and also the enquiry report submitted by the enquiry officer. 9. From a perusal of the enquiry report, it is clear that the enquiry officer has concluded the enquiry by recording a finding that charges 1 to 4 and 8 are not proved and so far charges 5 to 7 are concerned, he held that the said charges are proved against the petitioner/delinquent officer. Further, from a perusal of the show-cause notice and the revised show-cause notice issued to the petitioner, it is clear that the disciplinary authority has disagreed with the findings of the enquiry officer mainly referring to the preliminary enquiry conducted. It is well settled that when enquiry is conducted by other than disciplinary authority, it is open to the disciplinary authority to differ with the findings of the enquiry officer. It is equally well settled that unless an opportunity is given at that stage and explanation is called from the delinquent officer; by recording reasons to differ with the findings of the enquiry officer, the disciplinary authority cannot unilaterally differ and proceed with the disciplinary proceedings. In the instant case, it is not in dispute that the disciplinary authority proceeded with the enquiry and relied on the charges which are not held proved by the enquiry officer only on the ground that in the preliminary enquiry such charges are proved. Such procedure adopted by the respondents is alien to the service jurisprudence and the authoritative pronouncements on the subject by the Hon’ble Supreme Court. As relied on by learned counsel for the petitioner, in the case of Punjab National Bank and others, Appellants v. Kunj Behari Misra, Respondents[1], the Hon’ble Supreme Court has considered the said aspect and held that whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, before it records its own findings on such charge, it must record its tentative reasons for its disagreement and should give the delinquent officer an opportunity to represent before it records its findings. In view of the said judgment, the procedure adopted by the respondents to rely on the findings of the preliminary enquiry while proceeding with the enquiry appears to be illegal. Even with regard to charges 5 to 7, it is the allegation against the petitioner that he has called for tenders for supply of TC Fuse Wire, Bus Bar copper strips/plates and Bus Bar insulators and he has placed purchase orders for excess rates compared to market rates. From a perusal of the findings recorded in the enquiry report, it is clear that the enquiry officer, without assessing the quality of the material secured for the Company, recorded a finding that the quality of the material could not be assessed at that stage by comparing with the local market. By recording such a finding, he came to the conclusion that the petitioner placed orders for excess rates; as such, there was loss to the Company. The enquiry officer arrived at the findings in a very slippery manner without discussing any evidence and came to a conclusion based on such findings. At the same time, it is to be noted that the Special Court, in its judgment, has considered all these aspects and recorded findings in favour of the petitioner. The judgment of the Special Court on the said aspects, to the extent relevant, reads as under: “The evidence of P.W.14, the Enquiry Officer goes to show that he did not make any enquiry about the market rates of the material and he did not make enquiry about the rates of material charged in neighbouring circles and not examined the previous L.P.Os of Guntur circle. Therefore, it can be safely held hat his evidence regarding higher rates is unreliable. He further admitted that there would be difference in cash and credit basis and also about the variation in prices for ordinary copper and bus bar copper. P.Ws.5-7 – who are the private dealers stationed at Vijayawada deposed that they sell the material on cash basis, but no on credit basis. They stated that they never supplied material to the government undertakings but supply only to private parties. P.W.7 stated that there is difference between bus bar copper plates and ordinary copper plates. P.W.2 stated that there would be difference in quality as well as price of bus bar copper plate and ordinary copper. As regards the purchase order 13 and 13/92-93 supply of bus bar copper plates, P.W.7 stated that the copper plates were sold at Rs.180/- and during the cross-examination, he stated there is a difference between the bus bar copper plate and ordinary copper plates and that he has not supplied copper material to the Government agents at any point of time. The bus bar copper plates are valuable products purchased by the A.O. in P.O.No.13,14/92- 93 whereas the rates quoted by P.W.7 are the cost of raw material but not quoted for the Government work. Another feature is that the quality of the material P.W.7 is different form bus bar copper plate. P.W.-2 – A.E. (Purchase) and P.W.7 stated that there will be difference in quality as well as the price of the bus bar copper plates and ordinary copper plates. If such is the case, comparing the rate of bus bar copper with ordinary copper is not proper. The cost of making bus bar copper plates fit for using in connection entitling labour and wastage and also fixing up with it, if it is necessary for using in any electrical installation. So the variation in the prices of copper and bus bar in the plates as even if case is fatal and even taking into account this aspect, the prices quoted by the A.O. is not higher than the price spoken to by P.W.7 who admittedly spoke about cash transaction while the prices accepted by the A.O. is on credit basis. Thus, the rates quoted by the tenderers when compared to the rates spoken by P.W.7 cannot be compared. I am of the view that the A.O. has approved higher rates, is not at all proved by letting cogent and convincing evidence by the prosecution. Therefore, question of purchasing them for higher rates and thereby causing loss to the Government, does not arise at all. Regarding the quotation of higher rates in the tenders, it is evident that in case of purchases on credit, there will be difference of 30% from the purchases made on cash basis. In the three instances mentioned above, if the rates are correctly calculated and they are not at all higher than the existing rates as shown in the tender schedule, which relate to L.P.Os 13, 14, 42/92-93. Taking the rates quoted by Sekhar & Sons Firm, Vijayawada, P.W.-6, P.W.5 deposed that they sold fuse wire at the rate of 250/- per Kg. But the cash bill disclosed that 14.9% was charged extra on each sales. They deposed that they have not supplied fuse wire to any public undertaking. The rate works out to Rs.333/- per Kg. exclusive of taxes. The A.O. purchased the fuse wire at the rate of Rs.350/- per Kg. This is inclusive of taxes. It is clear as seen from the evidence of P.W.2, A.E. (Purchases) and P.W-1 deposed that there will be difference in quality as well as price of the bus bar copper plate and the ordinary copper plate. If such is the case, comparing the rate of bus bar copper and ordinary copper is not correct. The costs of