Ch. Appala Reddy Vs. Eastern Power Distribution Company of A.P. Ltd. and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - conversely, the need to appoint an enquiry officer would arise if only the appointing authority is not satisfied with the explanation offered by the employee and that he proposes to inflict a major penalty.l. narasimha reddy, j 1. the appellant was employed as a line inspector with the eastern power distribution company of a.p. limited-the first respondent. the second respondent viz., the superintending engineer, operation apepdc is the appointing authority. the second respondent appointed the third respondent herein as an enquiry officer to conduct enquiry into certain allegations, levelled against the appellant. consequently, the third respondent framed charges and served the same on the appellant through his proceedings dated 22.11.2004. the appellant challenged the same by filing writ petition no. 24324 of 2004.2. in the writ petition, the plea of the appellant was that the appointment of the third respondent as an enquiry officer was not preceded either by a show-cause notice or by a charge-sheet and in that view of the matter, the same was vitiated. he placed reliance upon the judgment of the supreme court in state of punjab v. v.k. khanna, air 2001 sc 343. on behalf of the respondents, it was pleaded that regulation 10(2)(a) of the andhra pradesh state transmission corporation limited, employees discipline and appeal regulations (for short 'the regulations') enables them to appoint an enquiry officer straightaway and that it was competent for the third respondent to issue a charge-sheet. the learned single judge dismissed the writ petition through order dated 12.2.2005. hence, this writ appeal.3. sri p.v.r. sarma, learned counsel for the appellant submits that the appellant was not issued any show-cause notice or charge-sheet by the appointing authority and the latter has chosen to appoint an enquiry officer straightaway. he submits that such a course of action is impermissible in law.4. sri samineni kishore, learned standing counsel for the respondents, on the other hand, submits that the third respondent is the officer, who is entrusted with the regular function of conducting enquiries and requiring him to initiate and take up the disciplinary proceedings against the appellant, cannot be said to be illegal, in anyway.5. the controversy in this writ appeal is in a very narrow compass. the second respondent intended to initiate disciplinary proceedings against the appellant. however, he commenced the disciplinary proceedings against the appellant with the appointment of the third respondent as an enquiry officer through his proceedings dated 29.10.2004. the third respondent, in turn, framed charges against the appellant.6. in any disciplinary proceedings, the necessity to appoint an enquiry officer arises only when the appointing authority points out certain acts of indiscipline on the part of the delinquent employee and the explanation offered by the employee is not satisfactory. on the other hand, where the explanation is found to be satisfactory, the necessity to proceed further does not arise or remain. in v.k. khanna 's case (supra), the supreme court reinstated this position of law and held that appointment of an enquiry officer even before a show-cause notice or charge-sheet is served upon an employee is unknown to service jurisprudence. it was further observed that in such an event, an element of bias exists vis-a-vis the enquiry officer.7. the appointing authority would be in a position to apply his mind to the facts of the case only when he calls upon an employee to explain as to the acts of misconduct, noticed by him. depending on his satisfaction, on consideration of the explanation, he may have to choose either to proceed further or to drop the proceedings. even in a case, where he proposes to proceed further, but his inclination is only to impose a minor penalty, the necessity to appoint an enquiry officer may not arise. conversely, the need to appoint an enquiry officer would arise if only the appointing authority is not satisfied with the explanation offered by the employee and that he proposes to inflict a major penalty.8. all these steps can emerge only when a show-cause notice or charge-sheet is given by the appointing authority. such a course was, admittedly, not followed in this case. as observed earlier, initiation of disciplinary proceedings against the appellant commenced with the appointment of an enquiry officer and the ratio laid down by the supreme court gets attracted to the facts of the case. the regulation 10(2)(a), upon which, reliance is placed by the respondents, does not salvage the situation. on the other hand, the regulation does not support the course of action, adopted by the respondents. in clear terms, it mandates that the appointing authority shall appoint an enquiry officer only when he proposes to impose the penalty indicated in certain clauses. the proposal to impose such a penalty can, invariably, emerge only after ascertaining the views or obtaining the explanation from the employee concerned. viewed from any angle, the order challenged in the writ appeal, cannot be sustained.9. we accordingly allow the writ appeal and set aside the order of the learned single judge. we allow the writ petition and set aside the proceedings challenged in it. however, we leave it open to the second respondent to issue a show-cause notice to the appellant and thereafter take further steps, in accordance with law. there shall be no order as to costs.