Judgment:
Vilas V. Afzulpurkar, J.
1. This batch of appeals is preferred by the employer of the respective respondents questioning the common order of the learned Single Judge whereunder the learned Single Judge interfered with the punishment of dismissal of the respondent in each case and substituted it by directing reinstatement of each of the respondent but denying the back wages and giving opportunity to the appellant to impose any minor punishment, keeping in view the findings under the enquiry report.
2. We have heard Sri D. Prakash Reddy, learned senior counsel appearing for the appellant in this batch and Sri P.V. Krishnaiah, learned Counsel appearing for the respondents in each of these cases.
3. The learned senior counsel, at the outset, has submitted that the order impugned is in conformity with the findings of fact reached against each of the respondents, in this batch, by the enquiry officer and the disciplinary authority and as such, the learned Single Judge ought not to have interfered with the discretionary power exercised by the disciplinary authority in imposing the punishment. He has further contended that the respondents were put to notice in accordance with law and they have participated in the disciplinary proceedings and it is not as if that any rules of natural justice or that of holding enquiry are violated. Learned Counsel relied upon the findings of the enquiry officer with respect to the charges framed against the respective respondents and has contended that these findings being based on material produced during the enquiry, there is nothing illegal and impermissible for the disciplinary authority to take the entire material into consideration and impose the punishment. The learned Counsel would contend that the charges against each respondent being serious, the punishment of dismissal does not deserve to be interfered with, especially under Article 226 of the Constitution of India.
4. Learned Counsel representing the respondents has contended that the very initiation of disciplinary proceedings and punishing the respondents amounts to finding the respondents as scapegoats when they have merely followed the instructions of their superior officers i.e. District Manager and Development Officer. He submits that no action is being taken against the aforesaid officers and the respondents, who are merely the Field Officers, are being punished without they being guilty of any unauthorized sanction of any amount or misappropriation of any amount. It is also contended that the departmental proceedings were initiated for imposing a minor punishment but ultimately the disciplinary authority ended up by imposing a major punishment. He also contended that the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short 'the APCS (CC&A;) Rules') are violated in letter and spirit and the punishment imposed is shockingly disproportionate to the charges and findings of the enquiry officer and as such, the learned Single Judge was fully justified in interfering with the said punishment. Learned Counsel would, therefore, submit that the power of this Court under Article 226 of the Constitution of India is rightly invoked by the learned Single Judge when the conclusion of disproportionate punishment is established on the bare facts itself.
5. We have considered the aforesaid submission with reference to the material on record.
6. The facts in all these matters are similar and as such for the purpose of convenience the facts as they appear in WA. No. 1453 of 2008 (directed against W.P. No. 2970 of 2007) are referred to hereunder. Each of the respondents in this batch of appeals is working as Field Officer in the Non-Conventional Energy Development Corporation of Andhra Pradesh. Alleging that the respondents have committed serious irregularities while implementing Bio-Gas program during the years 1999-2000 to 2003-2004 under a charge memo dated 27.04.2005, they were given a show cause notice together with statement of imputation of misconduct informing them that the Vice-Chairman and Managing Director proposes to take action under Rule 22 of the APCS (CC&A;) Rules, for imposing minor punishment and an explanation was called for. An enquiry was held by the enquiry officer and after receipt of the report of enquiry, a show cause notice dated 03.08.2006 proposing to impose major punishment under Rule 9 of the APCS (CC&A;) Rules was issued, calling upon respondents to show cause against proposed punishment as well as for recovery of misappropriated amount. After considering the same, under impugned proceedings of the Vice-Chairman and Managing Director dated 23.01.2007 the punishment of dismissal was imposed. Questioning the same, the writ petitions were filed in each of these cases and after the writ petitions were allowed by the learned Single Judge under the impugned order; the Management is in appeal in this batch of appeals.
7. At the outset, it has to be noticed that the very initiation of disciplinary proceedings was under the charge memo issued by the appellant under Rule 22 of the APCS (CC&A;) Rules and it was specifically referred to therein that action under Rule 22 of the APCS (CC&A;) Rules is proposed to be taken. Rule 22 of the APCS (CC&A;) Rules deals with the procedure for imposing minor penalties. Rule 9 of the APCS (CC&A;) Rules specifically provide minor penalties being in the nature of (i) censure; (ii) withholding of promotion; (iii) omitted; (iv) withholding of increments of pay without cumulative effect and (v)(a) suspension, where a person has already been suspended under Rule 8 to the extent considered necessary and (b) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. Thus, when the charge memo was issued to the respondents/field officers, they were specifically put to notice that the disciplinary action is proposed to be taken against them under Rule 22 of the APCS (CC&A;) Rules and as such any of the minor penalties under Rule 9, as mentioned above, would be imposed on them. The disciplinary authority, therefore, had categorically recorded its satisfaction and provisional conclusion that it proposes to impose a minor penalty with respect to the irregularities alleged against the respondents/field officers. As mentioned above, the domestic enquiry was held and it is only after the conclusion thereof and while enclosing a copy of the enquiry report to each of the field officers, for the first time, the disciplinary authority proposed to award major punishment under Rule 9 and ultimately the major penalty of dismissal from service was imposed.
8. The aforesaid action of the disciplinary authority in imposing major punishment is, therefore, by itself contrary to the APCS (CC&A;) Rules. It is not in dispute that the nature of enquiry, so far as minor and major penalties are concerned, is different and in any case, even if the disciplinary authority had changed its mind in proposing to impose the major penalty, the employee cannot be subjected to a major punishment after the enquiry is completed and enquiry report is received.
9. When we have pointed out the aforesaid to the learned senior counsel appearing for the appellant, the learned senior counsel has contended that no prejudice has been caused to the respondents/field officers inasmuch as even when the major punishment was proposed, a show cause notice was given to them and they were called upon to submit an explanation. He also relied upon a decision of the Supreme Court in State Bank of Patiala v. S.K. Sharma : (1996) 3 SCC 364 and particularly Para 33 thereof as well as the decision in P.D. Agarwal v. State Bank of India 2006 (4) SCJ 736 : (2006) 8 SCC 776 : 2006 (5) ALT 22.6 (DNSC) particularly Para 39 thereof and a Larger Bench judgment of this Court in K. Swarna Kumari v. Government of Andhra Pradesh : 2006 (2) ALT 289 (L.B.) : 2006 (2) ALD 585 (LB) to which one of us (TMK, J) is a party and places reliance particularly on paragraphs 29 and 20 thereof. According to the learned senior counsel the above decisions lay down a principle that when no prejudice is caused to the employee, even if there is any infraction of a substantive or procedural rule, the decision of the disciplinary authority cannot be invalidated. Learned senior counsel also relied upon another decision of the Supreme Court in N. Mani v. Sangeetha Theatre (2004) 12 SCC 278, particularly Para 9, for the proposition that even if source of power is not specifically referred to or is wrongly referred to, the exercise of power is not affected thereby.
10. The aforesaid decision is pressed into service by the learned senior counsel in an attempt to get over the charge memo issued by the disciplinary authority, in the first instance, wherein not only Rule 22 of the APCS (CC&A;) Rules is referred to but it also specifically referred to the satisfaction of the disciplinary authority that it proposes to take action against the employee under Rule 22 of the APCS (CC&A;) Rules. We are, therefore, of the view that the above decisions would not help the appellant in the present case, as it is not merely a case of mentioning of a wrong provision nor it is a case where the disciplinary authority has tentatively proposed a major penalty and later imposed a minor penalty. The present case clearly is one where the provisional satisfaction of imposing a minor penalty is recorded while issuing the charge memo itself and thereafter, the disciplinary enquiry is held into the charge memo and after receipt of the report of the enquiry officer, the disciplinary authority has changed its provisional satisfaction and proposed to impose a major punishment. The prejudice to the employee is, therefore, apparent and evident as they had hardly any opportunity to participate in the enquiry from the standpoint of possibility of suffering a major punishment. The aforesaid contention of the learned Counsel for the appellant is not sustainable on the facts of the present case.
11. Further, so far as, the decision making process is concerned, the learned Counsel for the respondents has pointed out that he had raised specific contention in the writ petition that after conclusion of the enquiry by the enquiry officer on 30.05.2006, the enquiry officer has admittedly collected certain material from the head office on 02.06.2006 and none of the delinquent officials were put to notice of the new material and the enquiry report specifically states in paragraphs 26 and 27 that after the final reply dated 30.05.2006 is service on the management the enquiry proceedings were closed. Afterwards, the enquiry officer obtained required material for writing enquiry report from the office of the appellant on 02.06.2006. Learned Counsel would, therefore, submit that enquiry officer having relied upon the material obtained subsequent to the closure of the enquiry and behind the back of the delinquent officials the entire enquiry report is vitiated and against the principles of natural justice. He further contends that major punishment imposed based on the said enquiry is, therefore, clearly vitiated. He also contended that even as per the report of enquiry, the responsibility for the irregularities is jointly to be shared by the District Manager, the Development Officer and the Technicians concerned and while no proceedings are taken against the other officers, the major punishment is imposed on the technicians (field officers) alone, who are the respondents. The enquiry report, as mentioned above, no doubt, says that the enquiry officer has collected the material after conclusion of enquiry and based on the same, the contentions of the learned Counsel for the respondents, as above, deserve to be accepted.
12. The learned Single Judge has examined the entire matter with reference to the charges framed and the findings of the enquiry officer and had come to the conclusion that the disciplinary authority did not proceed in the matter objectively and also the fact that none of the respondents are either beneficiaries or the sanctioning authorities for the said Bio-Gas subsidies, which was sanctioned and released by the District Manager and the allegation of misappropriation against the respondents was totally unsubstantiated. In view of the aforesaid finding of the learned Single Judge with respect to the charges levelled against the respondents being unsubstantiated, the learned Single Judge rightly felt that the punishment of dismissal was quite disproportionate to the findings of the enquiry officer and therefore, was justified in interfering with the said punishment.
13. Learned Counsel for the respondents relied upon a decision of the Supreme Court in State of Gujarat v. Anand Acharya : 2007 (2) SCJ 772 : (2007) 9 SCC 310 to substantiate that the exercise of jurisdiction by the learned Single Judge was well within the parameters under Article 226 of the Constitution of India and no interference is called for with the said findings.
14. We have also examined the matter in the light of the findings of the learned Single Judge, as discussed above. The enquiry officer in his report stated that the charges are not entirely proved and as categorically said that the 'responsibility of following the rules of the Corporation in strict sense is joint, to be equally shared by the District Manager, Development Officer, and the concerned technicians'. The physical verification as conducted during the enquiry was found at variance to the verification which preceded the charge memo. Thus, when the enquiry report is accepted by the disciplinary authority and when the said report itself mentions that the respondents alone cannot be found fault with and when it further notices that physical verification is at variance, the disciplinary authority ought to have taken this into consideration and consequently the major penalty of dismissal s imposed under the impugned proceedings of the appellant was rightly interfered with by the learned Single Judge.
15. It is also to be noted that it is not as if the learned Single Judge has exonerated the respondents and on the contrary, though reinstatement is ordered, back wages are denied to them and further opportunity is given to the disciplinary authority to impose any minor punishment commensurate with the findings against each respondent by the enquiry officer. The action of the disciplinary authority to that extent is vindicated, so far as respondents are concerned. It is also noteworthy that the respondents have not preferred any appeal against the order of the learned Single Judge, which in other words amounts to the respondents accepting the order of the learned Single Judge directing reinstatement without back wages and imposition of any minor punishment. The facts and circumstances, in this batch of appeals, clearly show that no interference is warranted with the order of the learned Single Judge.
16. The writ appeals are accordingly dismissed. However, there shall be no order as to costs.