ORDER
L. Narasimha Reddy, J.
1. The petitioner has been functioning as Deputy Registrar (MRD) in the Nizam's Institute of Medical Sciences, the 3rd respondent. A charge memo dated 16-11-2001 was issued by the 2nd respondent, the Director of the Institute, framing a charge against the petitioner. He submitted his explanation dated 15-12-2001. In accordance with the NTMS Employees Conduct and Appeal Rules (for short 'the Rules'), an Enquiry Officer was appointed, who in turn, submitted his report. The charge against the petitioner was held proved. Accepting the report of the Enquiry Officer, the 2nd respondent issued a show-cause notice dated 9-5-2002. On consideration of the explanation dated 23-5-2002 submitted by the petitioner, the 2nd respondent passed an order dated 12-6-2002, compulsorily retiring the petitioner from service.
2. Aggrieved by the order of compulsory retirement dated 12-6-2002, the petitioner preferred an appeal to the Executive Board of the Institute, i.e., the 1st respondent herein, under Rule 15 of the Rules. At its meeting held on 5-11-2002, the 1st respondent is said to have directed a comprehensive enquiry by two senior Officers, about the irregularities which are said to have been resorted to by the petitioner, for several years. Acting on the said decision of the 1st respondent, the 2nd respondent, issued proceedings dated 19-11-2002, constituting a Committee comprising of respondents 4 and 5. The Committee so constituted was requested to study and submit a detailed enquiry report to the 2nd respondent, within 6 weeks from the date of appointment.
3. Respondents 4 and 5, issued a notice dated 26-12-2002, directing the petitioner to attend an enquiry on 31-12-2002 and to respond to the four charges mentioned in the notice. The petitioner challenges this notice as well as the steps taken against him, through proceedings dated 19-11-2002 issued by the 2nd respondent. His contention is that once he had been compulsorily retired from service through orders dated 12-6-2002, the relationship of employer and employee between the 3rd respondent and himself ceased to exist, and the impugned proceedings are unsustainable. He further contends that neither the appellate authority can direct fresh enquiry without setting aside the order under appeal, nor the 2nd respondent had any valid basis to issue proceedings dated 19-11-2002.
4. In the counter-affidavit filed by the 2nd respondent, the circumstances under which the petitioner came to be compulsorily retired have been dealt with in detail. So far as the controversy in this writ petition is concerned, the 2nd respondent states that it is well within the power of the 1st respondent to call for a finding by constituting a Committee and that he did nothing more than implementing the directions issued by the 1st respondent. It is stated that the present exercise is only to provide necessary material before the 1st respondent to effectively consider and deal with the appeal preferred by the petitioner.
5. Sri M.R.K. Chowdary, learned senior Counsel appearing for the petitioner, submits that once the petitioner had been compulsorily retired from service of the 3rd respondent, he is not amenable to be proceeded against, in any enquiry. He submits that there is nothing on record to disclose that the appellate authority had passed a resolution directing constitution of a Committee comprising of respondents 4 and 5.
6. According to him, even if there existed such a resolution, it is not at all permissible for any of the respondents to undertake such an enquiry. He submits that the scope of the present enquiry is in fact wider than that of the departmental enquiry initiated against the petitioner, which resulted in an order of compulsory retirement.
7. Sri V.V. Prabhakara Rao, learned Standing Counsel for the respondents, on the other hand, submits that the present enquiry undertaken by Respondents 4 and 5 cannot be treated as or compared to disciplinary proceedings. He submits that it was in the context of the appeal preferred by the petitioner before the 1st respondent that the present enquiry was undertaken, only with a view to ascertain the facts. Placing reliance upon Section 12 of the Nizam's Institute of Medical Sciences Act 1989 (for short 'the Act'), learned Standing Counsel submits that the 1st respondent has ample power to deal with the matters relating to the conduct, discipline and conditions of service of the employees of the 3rd respondent.
8. The challenge in this writ petition is to an enquiry ordered by the 1st respondent against the petitioner, by constituting a Committee comprising of Respondents 4 and 5. This enquiry is said to have been ordered as sequel to the resolution passed by the 1st respondent.
9. The 2nd respondent initiated disciplinary proceedings against the petitioner. A charge was framed and Enquiry Officer was appointed. Following the procedure prescribed under the Rules, the 2nd respondent passed an order dated 12-6-2002, compulsorily retiring the petitioner from service. With this order, the petitioner ceases to be in the service of the 3rd respondent. Unless and until this order is set aside by a competent authority or a Court, the petitioner cannot be treated as an employee of the 3rd respondent.
10. It is settled principle of law that a person is amenable to disciplinary proceedings or departmental enquiry only as long as he is in employment of the Organisation or the Government, Once he ceases to be in employment, be it on account of retirement, dismissal, resignation or compulsory retirement, he ceases to be amenable or available to any disciplinary proceedings.
11. It is for this reason that where disciplinary proceedings are contemplated against an employee who is on the verge of retirement, he is continued in service even after attaining the age of superannuation. The purpose is only to ensure that he continues to be in employment and thereby becomes amenable or available for the disciplinary proceedings. In this case, the disciplinary proceedings were initiated against the petitioner and the same resulted in an order of compulsory retirement. Once the petitioner is not in the service of the 3rd respondent, he is not amenable to be proceeded against in any manner.
12. The present proceedings are said to have been initiated on the directions issued by the 1st respondent. The appeal preferred by the petitioner against the order of compulsory retirement is pending before the 1st respondent. Being an appellate authority, it has to consider the matter on the basis of material available on record. If necessary, it can call for further information from the subordinates. Under no circumstances, it can order an enquiry to be undertaken against a person, who had approached it through an appeal. If the 1st respondent is of the view that sufficient material did not exist when the order of compulsory retirement was passed, the only course open to it was to set aside the order under appeal, and to direct fresh proceedings to be initiated. Section 12 of the Act, which confers powers on the Board does not provide for a situation, which is brought about through the impugned proceedings.
13. Further, a perusal of the notice dated 26-12-2002 issued by Respondents 4 and 5 discloses that they have framed charges against the petitioner and wanted to enquire into the same. The charges contained in it, when read in comparison with the charge Memo dated 16-11-2001, are wider in scope. In the charge memo dated 16-11-2001, only one charge is framed against the petitioner. It reads as under:
'Sri K. Vinodhar, the then Dy. Registrar (HRD) has mislead his superiors 'while preparation of orders Rc.No. 3/1/HRD/98/H1, dated 31-3-2001, by extending the benefit of enhancement of scale of pay of Rs. 2,200-4,000 to the Legal Assistant also by interpolating AR/AFC/LA to the decision of the Local Committee and the Executive Board.'
In contrast, as many as four charges were framed in the impugned notice dated 26-11-2002. They are as under:-
'1. Interpolation of benefits to Legal Assistant without proper orders and discussions in Local Committee and Executive Board approval.
2. Showing favouritism to Smt. M. Indira and Smt. Nagendra Mani - Computer Assistants in verification of their qualifications and delaying actions in time against their lack of qualifications in time.
3. His involvement in irregularities in Surgical Stores in 1993 and the report of Dr. P. Satyanarayana (Ex-Medical Superintendent) and the comments of Sri B. V. Rama Rao, IAS, the then Director i/c, N1MS.
4. To find out any involvement in recruitment of X-ray Technicians who produced fake certificates in employment.'
The subject of this notice discloses that Respondents 4 and 5 proposed to undertake a 'comprehensive enquiry'. Such a course of action is totally unknown to Service Law and Jurisprudence. Viewed from any angle, the impugned proceedings cannot be sustained.
14. The writ petition is accordingly allowed and the action initiated against the petitioner through proceedings dated 19-11-2002 of the 2nd respondent and all the steps which are consequential thereto, are set aside. The 1st respondent is directed to consider the appeal of the petitioner on merits and in accordance with law; and dispose of the same, within two months from the date of receipt of a copy of this order. No costs.