THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO.7501 OF 2012
ORDER:-
1. This writ petition is filed assailing the punishment order
issued by the 1st respondent vide memo No.DEE/O/NRT/
ADM/JAO/C1/D.NO.2330/07 dated 24.09.2007 as void, illegal, arbitrary and contrary to the APSEB Discipline and Appeal Regulations.
2. The petitioner is appointed as Assistant Line Man under the control of first respondent on 10.10.2005. While he was working as Assistant Line Man, Kotha Uppalapadu, Rural, Vinukonda Operation Division, Narasarapet, Guntur District, the 3rd respondent has issued charge sheet on 16-11-2006 framing a charge against the petitioner alleging that he was absconding from duty with effect from 10.10.2005 and the same is in violation of clause XXIV (a) Para 4 of APSEB. Employees Revised Conduct Regulations.
3. The 2nd respondent appointed the 3rd respondent as an Enquiry Officer by his proceedings dated 14.11.2006. Subsequently the 3rd respondent has issued the charge sheet. The 1st respondent is the Disciplinary Authority under the Regulations, which are adopted by the APSPDCL. The petitioner has submitted an explanation to the charge sheet denying the charges. An oral enquiry was held by the 3rd respondent on 27.12.2006 and 3rd respondent submitted his report on 2 29.12.2006 holding that the charges framed against the petitioner was proved.
4. Basing on the said report, the first respondent has issued notice to the petitioner on 27.01.2007 proposing a punishment as deemed to have resigned from service from the date of absence. The petitioner also submitted his explanation to the show cause notice, along with Doctor Certificate in February 2007. Without considering the same, the first respondent issued final punishment order imposing a punishment of Deemed to have been resigned from service'. Aggrieved by the said punishment the present writ petition is filed.
5. The respondents have filed their counter, denying the allegations made in the writ petition.
6. In reply to the allegations in the affidavit, the respondents stated that the petitioner has been absconding from the duties from 10.10.2015 without obtaining prior sanction or leave from the competent authority. He has absconded duties from 10.10.2005 onwards, hence, the department has proceeded with disciplinary proceedings against him vide memo No.DEE/O/NRT/ADM/JAO/D.NO.70/06, dated 21.09.2006. Despite the receipt of the said memo, he has not chosen to submit any explanation. Hence, the Division Electrical Engineer- Operations, Narasaraopet reported about the absconding of the petitioner from his duty for more than one year to the higher authorities. As per the advice of the Superintending Engineer 3 Operations, Guntur, the Enquiry Officer was appointed on 01.11.2006. Basing on the said proceedings, the Divisional Electrical Engineer/Enquiries, Tirupathi has issued charge sheet on 16.11.2006 and conducted oral enquiry on 06.12.2006. Though the Enquiry Officer issued charge sheet and the same was acknowledged by the petitioner but he has not chosen to submit explanation to the charge sheet. Subsequently, oral enquiry was conducted on 27.12.2006 at 3.30 p.m. in the office of the Assistant Divisional Engineer-Operation, Vinukonda and forwarded Enquiry report to the Divisional Electrical Engineer, Narasaraopet, and basing on the said enquiry, notice was issued to the petitioner on 27.01.2007. The petitioner submitted reply to the said show cause notice, without assigning any proper reasons. But in the oral enquiry conducted on 27.12.2006 he has submitted that due to his ill health, he has not been attended his duties since 10.10.2005. During the cross examination, he has stated that he has not had any illness and he did not apply any leave nor taken permission, thereby he accepted the charge. Hence, the charge is proved against him.
7. Basing on the enquiry report, the Divisional Electrical Engineer-Operation, Narasaraopet/first respondent issued show cause notice and after considering the reply, the punishment of "deemed to have resigned from service from the date of absence", is imposed, and before imposing the major penalty, the first respondent has obtained permission from the Concurrence Committee vide orders dated 30.06.2007 and after receiving the 4 permission from the Concurrence Committee, the final orders were issued on 24.09.2007. The petitioner has filed an appeal against the final order to the Superintending Engineer Operations, Guntur and the same was already rejected. Hence, there are no merits in the writ petition and prayed to dismiss the same.
8. Learned counsel for the petitioner has mainly contended that the impugned orders dated 24.09.2007 is not in accordance with the Andhra Pradesh State Electricity Board Employees Discipline and Appeal Regulations [for short the Regulations]. Number 5 of the Regulations specifies about the Penalties, which read as follows:-
" The following penalties, may, for good and sufficient reasons or for any misconduct specified in regulation 6 and as herein after provided, be imposed upon the employees of the Board, namely:
(i) Censure
(ii) Fine, (to be imposed only in the case of employees in Class-IV
service)
(iii) Withholding of increments or promotion.
(iv) Reduction to a lower rank in the seniority list or to a lower post
or time scale not being lower than that to which he was directly recruited, whether in the same class of service , or in another class of service, or to a lower stage in a time scale.
(v) (a) Recovery from pay of an employee of the whole or any part of the pecuniary loss accused to the Board by reason of the negligence, misconduct, or disobedience to lawful orders, of an employee in the discharge of his duties.
(b) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld, where such an order cannot be given effect to.
(c) Recovery from pay to the extent necessary of the monetary value equivalent to the amount of reduction to a lower stage in time scale ordered where such order cannot be given effect."
9. According to above regulation, there is no punishment of deemed to have resigned from the service is notified. The 5 Regulation No.5 clearly stipulated that only the penalties specified, shall be imposed on the employees of the Board. Hence, the punishment imposed vide orders dated 24.09.2007 is contrary to the regulations.
10. To support his contentions, learned counsel for the petitioner has relied on the decision of the Hon'ble Apex Court in Vijay Singh Vs. State of U.P. and others1. Relevant paragraphs of the judgments read as follows:
"11. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. (Vide: Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539; and Chairman-cum- Managing Director, Coal India Ltd. & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142). Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant.
12. This very ground has been taken by the appellant from the very initial stage. Before the appellate authority such a ground was taken. Unfortunately, the appellate authority brushed aside the said submission observing that the judgments mentioned by him to the effect that integrity could not be withheld as punishment not prescribed under the statutory rules, had no application to the case, and therefore, in that respect no further consideration was necessary. The order of punishment imposed by the disciplinary authority did not require any 1 (2012) 5 SCC 242.6
interference. The revisional authority rejected the revision as not maintainable observing as under:
Representation is not maintainable. Withholding of integrity certificate does not come under punishment under 1991 Rules....Therefore, the revision is returned without hearing on merit on the ground of non maintainability. (Emphasis added) ......
15. Unfortunately, a too trivial matter had been dragged unproportionately which has caused so much problems to the appellant. There is nothing on record to show as to whether the alleged delinquency would fall within the ambit of misconduct for which disciplinary proceedings could be initiated. It is settled legal proposition that the vagaries of the employer to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant rules is nonetheless a misconduct (See: M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut & Ors., AIR 1984 SC 505; and A.L. Kalra v. The Project and Equipment Corporation of India Ltd., MANU/SC/0259/1984)."
11. Per contra, the learned counsel appearing on behalf of the respondents has submitted that the petitioner is a probationer and accordingly, Regulation 28 Of APSEB Service Regulations, more specifically (c) of the said Regulation, reads as follows:
28. Probationer's suitability for full membership:-
"(c) If the appointing authority decided that the probationer has failed to give satisfaction or that the probationer has not made sufficient use of his opportunities, it shall, unless the period of probation is extended under regulation 29 below by order discharge him from the service after giving him one month's notice or pay in lieu of such notice."
12. The petitioner is appointed as Assistant Lineman from 10.10.2005 and he has absconded without obtaining permission from higher authorities from the said date. Basing on the recommendations of the 4th respondent, the 3rd respondent, who is enquiry officer has framed charges and issued notice, despite 7 receipt of the said notice, the petitioner is not inclined to submit any reply and as per rules, the enquiry officer has conducted the rule enquiry and submitted reports and as per the findings of the report, the authorities, following the procedure, issued notice to the petitioner but the petitioner submitted reply explanation, however, not submitted any material evidence to support his contentions. Hence, the authorities have passed the present impugned orders, in accordance with the Regulations.
13. It is no doubt the petitioner was appointed as Line Man and he has absconded from duties more than a year, without obtaining leave and without obtaining any permission from the competent authority and absconding duties for more than five days is to be construed as misconduct as per Regulation No.6 of the Regulations. But Regulation No.5, clearly stipulates the penalties and according to the said penalties, the authorities are entitled to impose for misconduct specified in regulation No.6. But the punishment imposed in the impugned order "deemed to have been resigned from service" is nowhere mentioned in the Regulation No.5.
14. In view of the ratio laid down by the Apex Court, the punishment imposed by the authorities in the impugned order is outside the purview of the said regulations.
15. In view of the above discussion and in view of the rulings of Hon'ble Apex Court, the impugned orders, dated 24.09.2007 are set aside and the matter is remanded back to the respondents to 8 reconsider the issue afresh, as per the Regulations, more specifically under regulation No.5.
16. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
______________________ JUSTICE D. RAMESH Date:07.05.2021 Pnr 9 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION NO.7501 OF 2012 Date: 07.05.2021 Pnr