A.P. State Electricity Board & Ors Vs. M.Kurmi Naidu  Insc
582 (13 September 2006)
& P.K. Balasubramanyan H.K.Sema,J
for substituting the name of Transmission Corporation of Andhra Pradesh limited
(APTRANSCO) in place of Andhra Pradesh State Electricity Board (APSEB) is
appellants shall now be read as Chairman, Transmission Corporation of Andhra
Pradesh Limited (APTRANSCO).
challenge in this appeal is to the order dated 8.10.2001 passed by the Division
Bench in Writ Appeal No.1507 of 2001 affirming the order dated 27.4.2001 passed
by the learned Single Judge in Writ Petition No.16332 of 1996, whereby the
appeal filed by the appellants was dismissed with costs.
stated, the facts are as follows:-
respondent at the relevant time was working as Assistant Engineer under the
Board. He was served with a charge memo dated 18.10.1993. The charge reads:-
"Sri M Kurmi Naidu, Asst.Engineer/ Operation/Sakur reported to have
released unauthorized agricultural pumpsets by violating set norms, rules and
regulations which constitute misconduct as per A.P.S.E.Board (Revised) Conduct
respondent submitted his explanation to the charge. Not being satisfied with
the explanation, an Enquiry Officer was appointed, who submitted the Report
holding the charge found proved against the respondent. After being satisfied
with the inquiry Report, the Chairman of the Board, admittedly the Appellate
Authority inflicted the punishment of compulsory retirement from service. It is
not disputed that the disciplinary authority is the Member Secretary of the
Board. However, the punishment of compulsory retirement from service was
inflicted upon the respondent by the Chairman of the Board who is the Appellate
controversy raised before the learned single Judge as well as before the
Division Bench was that the disciplinary authority is the Member Secretary of
the Board who is competent to impose punishment upon the respondent but the
punishment was inflicted by the Chairman who is the Appellate Authority,
thereby the respondent was deprived of the forum of appeal before the Chairman
and prejudice has been caused to the respondent and the same is violative of
the principles of natural justice.
Division Bench of the High Court after referring to the decision rendered by
this Court in Surjit Ghosh vs. Chairman & Managing Director, United
Commercial Bank, (1995) 2 SCC 474 distinguished by this Court in Balbir Chand
arrived at the following conclusion:- "There cannot be, having regard to
the several decisions of the Apex Court any doubt whatsoever that a valuable
right cannot be taken away except by or in accordance with statute. When a
right of appeal has been provided to a delinquent employee such a right in our
opinion except for just cause cannot be taken away nor a delinquent Officer can
be deprived thereof. Regulation 7 (e) is in general terms. However, as
indicated hereinbefore the Proviso appended to clause (2) of Regulation 10
specifically states that punishment of compulsory retirement, which comes
within the provisions of clause 6 to Explanation (1) of Regulation 5, shall be
imposed by the competent authority with the concurrence of the committee
constituted thereunder. An order passed by the Chairman of the Board is,
however, not subject to concurrence. A valuable safeguard has, therefore, been
provided in favour of a delinquent officer to the effect that only the
disciplinary authority is required to apply its mind as regards the finding of
guilt arrived at by the Enquiry Officer, but also such findings are subject to
a further scrutiny by a competent authority." Regulation 7(e) of A.P.S.E.
Board Employees Discipline Appeal Regulations 1990 (in short the Regulation)
provides that powers vested in an authority may be exercised by a superior
authority in its discretion. It reads:
"Powers vested in
an authority may be exercised by a superior authority in its discretion.
(1): powers vested in an authority may be exercised by a superior authority
in its discretion vide Regulation 7(e) of A.P.S.E.Board Employees Discipline
question is as to whether the respondent was at all deprived of his right of
appeal in the present case. In Surjit Ghosh (supra) this Court held at scc
p.477 as under:
when an appeal is provided to the higher authority concerned against the order
of the disciplinary authority or of a lower authority and the higher authority
passes an order of punishment, the employee concerned is deprived of the remedy
of appeal which is a substantive right given to him by the Rules/Regulations.
An employee cannot be deprived of his substantive right. What is further, when
there is a provision of appeal against the order of the disciplinary authority
and when the appellate or the higher authority against whose order there is no
appeal, exercises the powers of the disciplinary authority in a given case, it
results in discrimination against the employee concerned".
to be noted that in Surjit Ghosh (supra) there was no further appeal provision
provided against the order of the higher authority and no appeal could be
preferred and, therefore, the appellant was deprived of the appeal provision.
in those circumstances the above observation was made.
Ghosh's case was reconsidered and distinguished again by this Court in Balbir Chand's
case (supra). It was pointed out at scc p.373 as under:- "It is now well
settled legal position that an authority lower then the appointing authority
cannot take any decision in the matter of disciplinary action. But there is no
prohibition in law that the higher authority should not take decision or impose
the penalty as the primary authority in the matter of disciplinary action. On
that basis, it cannot be said that there will be discrimination violating
Article 14 of the Constitution or causing material prejudice. In the judgment
relied on by the counsel, it would appear that in the Rules, officer lower in
hierarchy was the disciplinary authority but the appellate authority had passed
the order removing the officer from service. Thereby, appellate remedy provided
under the Rules was denied. In those circumstances, this Court opined that it
caused prejudice to the delinquent as he would have otherwise availed of the appellate
remedy and his right to consider his case by an appellate authority on question
of fact was not available. But it cannot be laid as a rule of law that in all
circumstances the higher authority should consider and decide the case imposing
penalty as a primary authority under the Rules, In this case, a right of second
appeal/revision also was provided to the Board. In fact, appeal was preferred
to the Board. The Board elaborately considered the matter through the Chairman.
It is not violative of Article 14 of the Constitution".
back to the facts of the given case there is no dispute that the Member
Secretary of the Board was the disciplinary authority. Show cause notice was
issued under the signature of the Member Secretary, the disciplinary authority.
However, the penalty of compulsory retirement from service was inflicted by the
Chairman of the Board, who it is not disputed, is the Appellate Authority. What
both the learned Single Judge and the Division Bench have failed to notice was
that despite the aforesaid facts the respondent was not deprived of the right
of appeal. An appeal lay to the Board.
the respondent has filed before the Board a detailed petition styled as mercy
petition on 1.10.1995 questioning the order of show cause dated 9.1.1995 and
his explanation submitted to final show cause notice dated 7.2.1995 and
challenged the final order passed by the Chairman on 6.9.1995. Though it was
styled as mercy petition, the Board has treated the petition as an appeal
petition. The Board after considering the appeal rejected the same by an order
appears that the order dated 31.8.1996 passed by the Board rejecting his appeal
has not been assailed either before the learned Single Judge or before the
attained finality. Therefore, it cannot be said that the appellant was deprived
of the remedy of appeal, which caused prejudice to him.
learned senior counsel, however, contended that prejudice has been caused to
the respondent as the punishment of compulsory retirement imposable under the
proviso appended to clause (2) of Regulation 10 provides that punishment of
compulsory retirement which comes within the provision of clause 6 to
Explanation (1) of Regulation 5 shall be imposed by the competent authority
with the concurrence of the committee constituted thereunder.
to him the order passed by the Chairman of the Board is not however subject to
concurrence of the committee.
his further say that if the order inflicting compulsory retirement would have
been passed by the disciplinary authority, such order could have been subjected
to concurrence of the committee. However, in the present case, since the
imposition of compulsory retirement was inflicted by the Chairman, the case of
the respondent has been prejudiced as the order passed by the Chairman was not
subjected to concurrence. We are unable to accept this contention. As already
noticed all the grievances laid by the respondent in detail in his appeal memo
dated 1.10.1995 was considered by the highest hierarchy, namely the Board, and
are, therefore, of the opinion that in the given facts of this case, no
prejudice whatsoever has been caused to the respondent. As already noticed, the
respondent has not taken grievances of the Board's order dated 31.8.1996. This
would show that he was satisfied with the appellate order of the Board.
view that we have taken the order of the learned Single Judge dated 27.4.2001
passed in W.P No.16332 of 1996 and the order of the Division Bench dated
8.10.2001 passed in Writ Appeal No.1507 of 2001 are not sustainable in law.
They are, accordingly, set aside. The appeal is allowed.
Petition filed by the respondent stands dismissed. Parties are asked to bear
their own costs.