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PETITIONER: A.P. KHADI AND VILLAGE INDUSTRIES BOARD, HYDERABAD AND OTHER

       Vs.

RESPONDENT: SHRI R. RADHAKRISHNAMURTHY

DATE OF JUDGMENT:       11/02/1997

BENCH: B.P. JEEVAN REDDY, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave grated. Heard the counsel for the parties.      This appeal  is directed  against the  judgement  of  a Division Bench of the Andhra Pradesh High Court disposing of the writ  appeal with  certain directions. The writ petition was dismissed by the learned Single Judge.      The  respondent-writ   petitioner  was   working  as  a Development Officer  under the  Appellant-Board. On 25.5.87, as many  as 49 charges were framed and served upon him and a disciplinary enquiry  held. The Enquiry Officer found 29 out of 49  charges proved.  A show-cause notice dated 4.5.88 was issued calling  upon the  respondent to  show-cause  why  he should not  be dismissed from service. After considering his explanation, he  was dismissed  from service  by proceedings dated 25.5.88.  The respondent  challenged the said order by way of writ petition. One of the contention urged before the learned Single  Judge was  that the  order of  suspension as well as  order of  dismissal was  not passed by the Chairman but by some other incompetent authority. This contention was rejected by the learned Single Judge in the following words:      "In the  counter it  is stated that      the charge memo was issued with the      approval of  the Chairman  and  the      enquiry officer  was also appointed      with the  approval of the Chairman.      A perusal of the records shows that      the entire  proceeding  were  taken      with the  approval of  the Chairman      commencing  from   the   order   of      suspension  to   the  date  of  the      impugned order.  The Note  File  of      the Board  contains the  signatures      of  the  Chairman  on  24.5.87  and      20.11.87 to  the  effect  that  the      impugned proceedings were issued by      the   Chairman.    As   the   Chief      Executive Officer  is the authority      to communicate  the proceedings and      hence,  all  the  proceedings  were      only signed  by him,  but the  Note

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    File  reveals   that  the  Chairman      approved   the   proceedings.   The      contention   of    the   petitioner      therefore has no substance."      The  learned  Single  Judge  also  rejected  the  other contentions urged  by the  respondent and dismissed the writ petition. The  respondent preferred a writ appeal wherein he reiterated the  contention that the orders of suspension and dismissal were  not taken  and  approved  by  the  Competent Authority viz.,  Chairman. With a view to ascertain the true situation, the  Division Bench  called upon  the counsel for the Board  to produce the original file. The Chief Executive Officer  Shri   B.Kripandam,  I.A.S.,   however,  filed   an affidavit that  the original  file was  handed over  to  the standing counsel  who had   placed  it  before  the  learned Single Judge  for his perusal but that the file has not been taken back  from the  Court. He,  therefore,  expressed  his inability to  produce the  file. He  reiterated that all the steps  taken against the respondent were taken with the full sanction and  authority of the Chairman. The Division Bench, however, was  of the  opinion that  since it  is  not  in  a position to  verify the  correctness of the contention urged by the  respondent (appellant  before them)  in view  of the non-availability of the fire, the respondent should be given the total  benefits to  which he was entitled had he retired on the completion of age of superannuation. This is what the Division Bench observed:      "Although   it    is   the    usual      administrative  practice   for  the      Chief Executive  Officer  to  issue      formal orders  after  obtaining  on      the note  file the  orders  of  the      competent authority, in the present      case was  are unable to verify this      fact due  to absence  of the  file,      which as  already stated supra, was      misplaced.   In    view   of   this      lingering  doubt   we   asked   the      learned before  us as  to how  much      amount  the  appellant  would  have      been entitled to had  he retired on      completion   of    the    age    of      superannuation,  particularly  when      the order  of dismissal  was passed      five days  before he  attained  the      age  of   retirement.  Sri  Murthy,      learned counsel  for the  statement      showing  that  the  total  benefits      approximately the  appellant  would      have   got comes  to Rs. 62,609.06.      Sri Murthy  was also  fairly stated      that the  matter may  be closed  by      awarding some  compensation to  the      appellant.      In the circumstances, we are of the      view that the following order would      be just  and proper.  Within  three      months from  today respondents No.1      to  3   shall  pay  a  sum  of  Rs.      60,000/- to  the appellant. We must      also mention  that the  post  is  a      non-pensionable  one   and  in  the      normal course  if the appellant had      retired from service, he would have      got  approximately   the  aforesaid

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    amount."      In this  appeal, it is submitted by the learned counsel for the  appellant-Board that  the Division  Bench ought  to have accepted  the statement  of the  learned  Single  Judge contained in  his judgement and that there was no reason for doubting the  correctness of  the said  statement. The Board had handed  over the  file to the Court and since it was not returned, they  were not  in a  position to produce the same before the  Division Bench. The Board cannot be punished for the same, it is submitted.      We are  to the opinion that the learned counsel for the appellant is justified in his submission. The learned Single Judge has  specifically and clearly recorded in his Judgment that he has perused the records and that all the proceedings "commencing from  the order of suspension to the date of the impugned order" were taken with the approval of the Chairman and that  the ’note  file’ does contain the signature of the Chairman showing  that the  impugned order  of dismissal was issued by  the Chairman.  We see  no  reason  why  the  said statement should  be doubted.  The statement  found  in  the Judgment should  be accepted  as correct.  The contention of the  respondent   to  the   contrary  could  not  have  been countenanced in  the face  of  the  said  statement  in  the Judgment. We  are, therefore,  of the  said statement in the Judgment.  We  are,  therefore,  of  the  opinion  that  the respondent must  be deemed  to have  been dismissed  by  the Competent Authority viz., Chairman.      Mr. Narasimha,  learned counsel for the respondent writ petitioner,  submitted   that  there   are   several   other submissions which  were raised  in the writ appeal but which have not  been considered  by the  Division Bench since they allowed the  appeal on the aforesaid one submission. In view of this  submission, we think it appropriate that the matter should go  back to the High Court/Division Bench for a fresh disposal of  the writ  appeal in  accordance with law and in the light of the observations made herein.      The appeal  is accordingly  allowed. The Judgment under appeal is  set aside  and the  matter remitted  to the  High Court for  a fresh  disposal of the writ appeal. No order as to costs.