Help fn finding judment of highcourt
jayesh sinha
(Querist) 22 October 2012
This query is : Resolved
D.S. Bose Babu Vs APSEB reported in 1995(
3)alt of andhra pradesh high court i have tried using all methods to find online judments by taking help of judis.nic.in and ap.nic.in but after entering detail in petitoner or respondent i am not finding the judgement can some of my experts help me in sending the judgement
R.K Nanda
(Expert) 22 October 2012
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Rajeev Kumar
(Expert) 22 October 2012
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jayesh sinha
(Querist) 28 October 2012
i have tried but the search engine is not accepting
ajay sethi
(Expert) 28 October 2012
Andhra High Court
D. Subhash Chandra Bose Babu vs Andhra Pradesh State Electricity ... on 28 August, 1995
Equivalent citations: 1995 (3) ALT 37, (1996) ILLJ 726 AP
Author: M B Naik
Bench: M B Naik
ORDER
Motilal B. Naik, J.
1. Petitioner has approached this Court seeking a direction in the nature of certiorari, quashing the impugned Memo No. CEW/E1/P1/F.No. 6265/86-17, dated 18-7-1990 issued by the second respondent as illegal, arbitrary and unconstitutional.
2. Petitioner was an employee working as Sub-Overseer in the office of the second respondent at Warangal and had put in considerable service. While so, the respondent-authorities issued memorandum of Charge sheet against the petitioner alleging certain irregularities. Pursuant to the said charge-sheet, an enquiry officer was also appointed. The enquiry officer completed the enquiry and the report was also submitted to the disciplinary authority i.e., Superintendent Engineer, Operation Circle, Warangal. The Superintendent Engineer, Operation Circle, Warangal by his proceedings dated 25-6-1987 basing on the enquiry report, imposed the punishment of stop-page of four annual grade increments with cumulative effect in the time scale duly treating the period of suspension as on duty and limiting the pay and allowances to what he had received as subsistence allowance during the period of suspension.
3. As against the imposition of penalty by the disciplinary authority which order is dated 25-6-1987, the petitioner had carried the matter by way of an appeal before the second respondent on 5-8-1987. It is alleged that the appellate authority instead of passing an appropriate order on the appeal filed by the petitioner, chose to issue a further show-cause notice dated 11-7-1989 contemplating punishment to dismissal from service. Petitioner though submitted his reply to the said show-cause notice, the appellate authority i.e., the second respondent herein issued the impugned proceedings in Memo No. CEW/E1/P1/F.No. 6265/86-17, dated 18-7-1990 dismissing the petitioner from service.
4. The present writ petition is filed by the petitioner aggrieved by the impugned proceedings issued by the second respondent on the ground that when an appeal is filed by the petitioner against the order of stoppage of increments imposed by the disciplinary authority, the second respondent ought to have disposed to the said appeal either by accepting or rejecting the said penalty. It is contended that the second respondent chose to impose the punishment of removal in the appeal filed by the petitioner, which action is contrary to the law laid down by the Supreme Court in Maheshwar Nath Srivatsava v. State of Bihar . It is further contended that the second
respondent who is the appellate authority has no power to review the order passed by the disciplinary authority in the appeal filed by the petitioner. Even if such owe is available to the second respondent to review the orders passed by the disciplinary authority, such power could only be exercised within a period of one year from the date of the order passed by the disciplinary authority as contemplated under Regulation No. 7(c) of the A.P.S.E.B. Employees Discipline and Appeal Regulations (for short "the Regulations"). It is stated, the impugned order is passed after two years from the date of the order of the disciplinary authority and as contemplated under Regulation No. 7(c), permission of the next higher authority or the Board has to be obtained for reviewing the order passed by the disciplinary authority if the order is to be reviewed beyond the period of one year. It is contended that the second respondent has not obtained such permission and therefore, the impugned order is improper and without authority and has to be held void.
5. On behalf of the respondents, a detailed counter has been filed inter alia contending that the second respondent is vested with the power of review as he being the appellate authority. It is categorically stated that the second respondent has in fact obtained permission from the Board on 13-7-1987 and as such the second respondent has acted in accordance with the provisions contemplated in this behalf and therefore, there are no irregularities in the impugned order. It is further contended that while examining the appeal, the second respondent realised that the disciplinary authority has not imposed sufficient penalty on the petitioner, commensurating with the charges leveled against him and felt that it is a fit case to review the order passed by the disciplinary authority and accordingly, the show-cause notice dated 11-7-1987 was issued calling for the explanation of the petitioner for which the petitioner has also filed his explanation. It is contended that the second respondent has considered the explanation of the petitioner, rejected the case of the petitioner and passed the impugned order while dismissing the petitioner from service, which order is in accordance with the provisions contemplated in this regard.
6. I have heard both the learned counsel at length.
7. Prima facie, I am of the view, in an appeal preferred against the order of the disciplinary authority, the appellate authority has to necessarily either reject or accept the appeal but cannot impose higher punishment than what was imposed by the disciplinary authority. Even assuming for a moment that the appellate authority has powers under Regulation 7(c) of the said Regulations for reviewing the order of the Disciplinary Authority, that power has to be exercised by him within one year from the date of the order of the disciplinary authority. If the appellant authority exercises review powers under the said proviso, within one year, no permission is necessary from the higher authority i.e., the Board. In this case, admittedly, the disciplinary authority passed the order on 25-6-1987. The appeal was filed on 5-8-1987. The second respondent could exercise powers vested in him under Regulation 7(c) of the said Regulations within a period of one year from 25-6-1987 i.e., by 24-6-1988 and pass appropriate order independently in a separate proceedings initiated by him. If he is satisfied that the disciplinary authority has not imposed sufficient punishment commensurating with the nature of the irregularities committed by the petitioner, he could very well proceed to review the order passed by the disciplinary authority after obtaining necessary permission from the Board if such review is contemplated beyond a period of one year after the orders passed by the disciplinary authority.
8. In this case, the respondents have categorically stated in the counter that the second respondents had obtained permission from the Board on 13-7-1987 itself for the purpose of reviewing the order of the disciplinary authority which is dated 25-6-1987. Under Regulation 7(c), the appellate authority could exercise his powers of review against an order of disciplinary authority within a period of one year from the date of passing of the order. There is no necessity to obtain any permission from the higher authority for doing so within one year. The counter filed by the respondents discloses that the 2nd respondent obtained permission as required under Regulation 7(c) on 13-7-1987 itself. When there is no obligation to obtain permission from the Board, the submission that the permission was obtained on 13-7-87 itself seems to be unrealistic.
9. Regulation 7(c) of the Regulations contemplates that in the event the appellate authority intends to review the order passed by the disciplinary authority, he could do so within a period of one year from the date of the said order. If the order passed by the disciplinary authority has to be reviewed after one year from the date of passing the said order, the appellant authority has to necessarily obtain permission from the Board. Admittedly, the impugned order is dated 18-7-1990. The order of the disciplinary authority is dated 25-6-1987. Therefore, the impugned order is passed after the lapse of more than two years from the date of the order of the disciplinary authority. It was obligatory on the part of the second respondent to obtain necessary permission from the Board in this regard. The explanation through the counter given by the respondents that the permission of the Board was sought way back on 13-7-1987 looks to me quite improbable, more so, when there was no reason for the second respondent to obtain such permission on 13-7-1987 itself, within three weeks of the order which is dated 25-6-1987.
10. As discussed earlier, I am prima facie of the view, that when an appeal is filed before the appellant authority, the appellate authority has either to reject or accept the appeal. If the appellate authority, has to exercise powers vested in him under appropriate proviso, that power has to be exercised within a reasonable period as contemplated under Regulation No. 7(c) of the Regulation. In this case, the appellate authority has filed to do so. The belated explanation now placed before this Court that the permission of the Board was sought on 13-7-1987, in this background, I am not convinced with this submission urged in this behalf. The powers vested in an authority shall be exercised to look as to have been exercised in a just and reasonable manner and shall not give scope to believe that such power has been exercised with malafide intention to overcome the hurdle. Even otherwise, the further show-cause notice dated 11-7-1989 issued by the second respondent to the petitioner before passing the impugned order discloses that the second respondent has already come to the conclusion to reject the final order passed by the disciplinary authority in his memo dated 25-6-87 and to impose penalty of dismissal from service on the petitioner. This itself shows that the second respondent has predetermined the entire matter again the petitioner and therefore, in a routine fashion issued the show-cause notice dated 11-7-1989.
11. As far as the appellate authority passing an order of dismissal in an appeal filed by the petitioner against the order of the disciplinary authority, the law is very clear in this regard as laid down by the Supreme Court in the decision cited (supra), which says that the appellate authority cannot exercise its review powers in an appeal filed by the aggrieved party and impose a higher punishment than that of the punishment imposed by the disciplinary authority.
12. Having regard to the above discussion and having regard to the law laid down by the Supreme Court in the decision cited (supra), I am convinced that the impugned proceedings issued by the second respondent cannot be sustained and the same is accordingly quashed. Consequently, the respondents are directed to reinstate the petitioner in service forthwith. The petitioner has already suffered severe punishment on account of irrational order passed by the second respondent. He is entitled to receive one half of his salary for the entire period from the date of removal till the date of reinstatement. This period of lay-off shall be treated as period on duty. The petitioner is entitled for all other benefits including seniority etc. The respondents shall pay the amounts for the said period as directed above, within a period of six weeks from the date of the petitioner joining the duty.
13. The writ petition is allowed with costs of Rs. 5,000/- to be paid to the petitioner within two weeks from today.
