Andhra Pradesh High Court - Amravati
B.Sunkanna, S/O B.Obalesappa, vs The Chairman Managing Director, on 27 September, 2024
APHC010621022004
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3457]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY SEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE HARINATH.N
WRIT PETITION NO: 2065/2004
Between:
B.Sunkanna, S/o B.obalesappa, ...PETITIONER
AND
The Chairman Managing Director ...RESPONDENT
Counsel for the Petitioner:
1. Sri. V.Mallik
Counsel for the Respondent:
1. Sri. V.B.Subrahmanyam
The Court made the following :
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WP.No.2065 of 2004
THE HON'BLE SRI JUSTICE HARINATH. N
WRIT PETITION No.2065 of 2004
ORDER:
The petitioner is challenging the order of dismissal dated
29.12.2003 and seeks a consequential direction to reinstate the
petitioner into service together with all consequential benefits.
2. The petitioner started his carrier at the respondent in the year
1992 and was working as a Junior Officer. He also worked as PS
to the Chairman and Managing Director of the
respondent/company during the years 1993 to 2001. Enquiry was
initiated on the acts of omission and commission while discharging
his role as PS to Chairman and Managing Director. The specific
allegations related to the conduct of petitioner affairs at the
Guesthouse for the period 1998-2001.
3. An enquiry was conducted against four officers including the
petitioner who was working as Junior Officer-Guesthouse. The
petitioner was charged with the allegation of embezzlement of
company amount. As such he was placed under suspension since
14.07.2001. A charge memo was issued on 11.04.2002. All the
four employees were charged off falsification of accounts and
failure to account properly for the events that took place in the
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Guesthouse etc., After, a detailed enquiry, the enquiry officer
submitted his report and two of the charged officers were
exonerated and two officers including the petitioner were found to
be guilty.
4. It is stated that, the petitioner as incharge of the Guesthouse was
coordinating for arranging special lunches, special dinners,
breakfast to official guest etc., It is stated that all the said
arrangements were done on oral instructions of the Chairman and
Managing Director of the respondent. As such, the petitioner
cannot be held accountable for acting on oral instructions and
incurring expenditure in arranging the required lunch, dinner etc.,
for the guests. It is also submitted that an officer in cadre of the
Chairman and Managing Director cannot be expected to issue
written instructions for arranging the lunch, dinner etc., for the
guests.
5. It is submitted that the Vigilance Officer investigated the issue and
he played the role of a prosecutor in entire issue. It is submitted
that no irregularity was committed as the petitioner simply followed
the practice which was in vogue for the last 35 years. The
petitioner also filed a writ petitions 10368 of 2003 and 10369 of
2003 challenging the order of suspension and the enquiry. The
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writ petitions were dismissed and this Court declined to interfere in
the disciplinary proceedings. The petitioner claims that the order
of dismissal is issued by an authority who is delegated the power
to act on the enquiry report. It is also stated that the Board of
Directors cannot authorize the third party to exercise powers of
imposing punishment.
6. The learned counsel for the petitioner places reliance on the
following judgments Steel Authority of India Vs. Presiding
Officer1, the Hon'ble Supreme Court of India has decided the
issue whether the authority who framed charges and constituted
the enquiry committee had the power to do so and decided the
issue by considering the discipline and appeal rules duly approved
by the Board of Directors. Sanni Silk Mills Pvt Ltd., Vs.
Employees State Insurance Corporation2, Director General,
ESI Corporation Vs. T.Abdul Razak3, in both the said cases the
Hon'ble Supreme Court of India held that sub delegation of power
was held to be improper. It was held that when the regulations
empowered a particular officer to exercise the said power, he
could not have delegated the said power to another officer. Coal
1980 (3) SCC 734
1994(5) SCC 346
1996 (4) SCC 708
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India Ltd., Vs. Anantha Saha4, the Hon'ble Supreme Court dealt
with the issue relating to initiation of disciplinary proceedings and
imposition of major penalties ought to be strictly in accordance
with the rules governing the Code of Conduct of the Employees.
7. The learned counsel for the petitioner also places reliance on
Hindustan Shipyard Officers Conduct, Discipline and Appeal
Rules. Reliance is placed on Rule 3 (c) (d) (e) and (f). Rule 3(c)
defines the board as the Board of Directors of the Company and
includes, in relation to the exercise of powers, any committee of
the board/management or any officer of the undertaking to whom
the board delegates any of its powers. Rule 3(d) defines Chairman
and Managing Director. Rule 3(e) defines disciplinary authority
and Rule 3(f) defines a competent authority. The learned counsel
for the petitioner relies on Rule 25 which defines the disciplinary
authority as specified in the schedule or any authority higher than
it may impose any of the penalties specified in Rule 25 on any
officer. Rule 27 (2), the procedure for imposing major penalties is
laid down. Major penalties are imposed under regulation 25 (e),(f)
and (g).
2011 (5) SCC 142
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8. The learned counsel submits that impugned order passed by the
disciplinary authority dated 29.12.2003 is not passed by the
competent authority as per the schedule to the conduct, discipline
and appeal rules, it is the Chairman and Managing Director who is
the disciplinary authority and when there is no delegation of power
prescribed. Any such punishment imposed in contravention of said
regulation ought to be set aside by holding it as illogical and
contrary to the Conduct and Disciplinary Rules.
9. The learned counsel for the respondent submits that there is no
infirmity in the order passed by the disciplinary authority and the
disciplinary authority was authorized at its 307th meeting, dated
27.03.2002 to function as disciplinary authority. The Director
(Technical) was delegated with such powers to enquire into the
allegations and to impose the punishment by the Board of
Directors. The intention of the Board of Directors is to disassociate
the office of the Chairman and Managing Director from the issue,
as the petitioner was facing charges while he was discharging his
duty as PA to the Chairman and Managing Director.
10. It is submitted that the power vested in the Board of Directors
cannot be challenged. The Board has all the authority to delegate
powers on any officer deemed appropriate to function as
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disciplinary authority. A proper enquiry was conducted. A fair
opportunity was granted to the petitioner, all the relevant
documents such as charge sheets, statements, documents, list of
documents were furnished to the petitioner. The petitioner had
ample opportunity to submit his defence. The attempt of the
petitioner to point lapses in the procedure of enquiry are not
substantiated. It is submitted that the petitioner repaid an amount
of Rs.31,841/- in September, 2001 towards misuse of the official
telephone for his personal purposes. The learned counsel for the
respondents submits that there was no irregularity in either
issuance of the charge sheet, investigation, enquiry and
punishment imposed by the disciplinary authority.
11. Considering the submissions of the learned counsel for the
parties, it is trite to refer to the law laid down by the Hon'ble
Supreme Court in Central Council for Research in Ayurvedic
Sciences and another Vs. Bikartan and others5, wherein it was
held that two cardinal principles of law governing exercise of
extraordinary jurisdiction under Article 226 of the Constitution
more particularly when it comes to issue of writ of certiorari.
50. The first cardinal principle of law that governs the
exercise of extraordinary jurisdiction under Article 226 of
the Constitution, more particularly when it comes to the
5 [2023] 11 S.C.R 731
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issue of a writ of certiorari is that in granting such a writ,
the High Court does not exercise the powers of
Appellate Tribunal. It does not review or reweigh the
evidence upon which the determination of the inferior
tribunal purports to be based. It demolishes the order
which it considers to be without jurisdiction or palpably
erroneous but does not substitute its own views for
those of the inferior tribunal. The writ of certiorari can be
issued if an error of law is apparent on the face of the
record. A writ of certiorari, being a high prerogative writ,
should not be issued on mere asking.
51. The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of the
Constitution is that in a given case, even if some action
or order challenged in the writ petition is found to be
illegal and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset
it with a view to doing substantial justice between the
parties. Article 226 of the Constitution grants an
extraordinary remedy, which is essentially discretionary,
although founded on legal injury. It is perfectly open for
the writ court, exercising this flexible power to pass such
orders as public interest dictates & equity projects. The
legal formulations cannot be enforced divorced from the
realities of the fact situation of the case. While
administering law, it is to be tempered with equity and if
the equitable situation demands after setting right the
legal formulations, not to take it to the logical end, the
High Court would be failing in its duty if it does not notice
equitable consideration and mould the final order in
exercise of its extraordinary jurisdiction. Any other
approach would render the High Court a normal court of
appeal which it is not.
64. Thus, from the various decisions referred to above,
we have no hesitation in reaching to the conclusion that
a writ of certiorari is a high prerogative writ and should
not be issued on mere asking. For the issue of a writ of
certiorari, the party concerned has to make out a definite
case for the same and is not a matter of course. To put it
pithily, certiorari shall issue to correct errors of
jurisdiction, that is to say, absence, excess or failure to
exercise and also when in the exercise of undoubted
jurisdiction, there has been illegality. It shall also issue to
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correct an error in the decision or determination itself, if
it is an error manifest on the face of the proceedings. By
its exercise, only a patent error can be corrected but not
also a wrong decision. It should be well remembered at
the cost of repetition that certiorari is not appellate but
only supervisory.
12. It is no doubt well established law that this Court can exercise its
jurisdiction of judicial review if the petitioner is able to place the
case of the petitioner within the exceptions carved out by the
established law and the various decisions of the Hon'ble Supreme
Court of India.
13. On the facts on hand in the present case, the petitioner could not
place his case for judicial review by this Court on the punishment
imposed by the disciplinary authority.
14. In so far as the technicality regarding the competent authority for
imposing the major punishment as prescribed under Rule 25 (g) is
concerned, as per the schedule to the Hindustan Shipyard
Officers Conduct, Discipline and Appeal Rules, the Chairman and
Managing Director is the disciplinary authority. The Chairman and
Managing Director is also the appellate authority, the Board of
Directors is the reviewing authority. The punishment imposed by
the disciplinary authority is of the cadre of director. The board has
taken a decision to detach the Chairman and Managing Director
from the issue, as the enquiry was relating to the misappropriation
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of funds by the Personal Assistant to the Chairman and Managing
Director. The board has delegated the power of a disciplinary
authority on the Director (Technical) to perform the role of
disciplinary authority and Rule 3(f), which defines the competent
authority as the authority empowered by Board of Directors by any
general or special rule or order to discharge the function or use
the powers specified in the rule or order.
15. The Director (Technical) was conferred with the power of the
disciplinary authority. In the considered opinion of this Court the
decision of the Board of Directors cannot be questioned more so
when the issue dealt with the office of the Chairman and
Managing Director. The delegation of power by the Board on a
Director to discharge the role and responsibility of a disciplinary
authority cannot be questioned as it was done in the wake of
requirement of the nature of enquiry and keeping in consideration
the involvement of the office of Chairman and Managing Director.
16. The Board of Directors is the reviewing authority as per the
schedule to the Hindustan Shipyard Officers Conduct, Discipline
and Appeal Rules. As such he is the next higherarcy to that of the
Chairman and Managing Director. As such this Court finds no
infirmity in the proceedings issued by the Board appointing the
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director (Technical) as disciplinary authority for conducting the
enquiry and passing the required orders.
17. In the result, the writ petition is dismissed, without costs.
18. Pending miscellaneous petitions, if any, shall stands closed.
____________________
JUSTICE HARINATH.N
Dated 27.09.2024
KGM
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THE HON'BLE SRI JUSTICE HARINATH. N
Dated 27.09.2024
KGM
