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CASE NO.: Appeal (civil)  3632 of 2003

PETITIONER: Chairman,A.P.State Electricity Board & Ors.

RESPONDENT: M.Kurmi Naidu

DATE OF JUDGMENT: 13/09/2006

BENCH: H.K.SEMA & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

H.K.SEMA,J   

      I.A.No.3 for substituting the name of Transmission  Corporation of Andhra Pradesh limited (APTRANSCO) in place  of Andhra Pradesh State Electricity Board (APSEB) is allowed.   The appellants shall now be read as Chairman, Transmission  Corporation of Andhra Pradesh Limited (APTRANSCO).                 The challenge in this appeal is to the order dated  8.10.2001 passed by the Division Bench in Writ Appeal  No.1507 of 2001 affirming the order dated 27.4.2001 passed  by the learned Single Judge in Writ Petition No.16332 of 1996,  whereby the appeal filed by the appellants was dismissed with  costs.                  Briefly stated, the facts are as follows:-                 The respondent at the relevant time was working as  Assistant Engineer under the Board.  He was served with a  charge memo dated 18.10.1993.  The charge reads:- "Sri M Kurmi Naidu, Asst.Engineer/  Operation/Sakur reported to have released  unauthorized agricultural pumpsets by  violating set norms, rules and regulations  which constitute misconduct as per  A.P.S.E.Board (Revised) Conduct Regulations".

       The respondent submitted his explanation to the  charge.  Not being satisfied with the explanation, an Enquiry  Officer was appointed, who submitted the Report holding the  charge found proved against the respondent.   After being  satisfied with the inquiry Report, the Chairman of the Board,  admittedly the Appellate Authority inflicted the punishment of  compulsory retirement from service.  It is not disputed that  the disciplinary authority is the Member Secretary of the  Board.  However, the punishment of compulsory retirement  from service was inflicted upon the respondent by the  Chairman of the Board who is the Appellate Authority.                   The controversy raised before the learned single  Judge as well as before the Division Bench was that the  disciplinary authority is the Member Secretary of the Board  who is competent to impose punishment upon the respondent  but the punishment was inflicted by the Chairman who is the  Appellate Authority, thereby the respondent was deprived of  the forum of appeal before the Chairman and prejudice has  been caused to the respondent and the same is violative of the  principles of natural justice.                  The Division Bench of the High Court after referring  to the decision rendered by this Court in Surjit Ghosh   vs.   Chairman & Managing Director, United Commercial Bank,

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(1995) 2 SCC 474 distinguished by this Court in Balbir Chand   Vs.  Food Corporation of India Ltd., (1997) 3 SCC 371  arrived at the following conclusion:- "There cannot be, having regard to the several  decisions of the Apex Court any doubt  whatsoever that a valuable right cannot be  taken away except by or in accordance with  statute.  When a right of appeal has been  provided to a delinquent employee such a right  in our opinion except for just cause cannot be  taken away nor a delinquent Officer can be  deprived thereof.  Regulation 7 (e) is in general  terms.  However, as indicated hereinbefore the  Proviso appended to clause (2) of Regulation  10 specifically states that punishment of  compulsory retirement, which comes within  the provisions of clause 6 to Explanation (1) of  Regulation 5, shall be imposed by the  competent authority with the concurrence of  the committee constituted thereunder.  An  order passed by the Chairman of the Board is,  however, not subject to concurrence.  A  valuable safeguard has, therefore, been  provided in favour of a delinquent officer to the  effect that only the disciplinary authority is  required to apply its mind as regards the  finding of guilt arrived at by the Enquiry  Officer, but also such findings are subject to a  further scrutiny by a competent authority."   

               Regulation 7(e) of A.P.S.E. Board Employees  Discipline Appeal Regulations 1990 (in short the Regulation)  provides that powers vested in an authority may be exercised  by a superior authority in its discretion.  It reads: "7(e) Powers vested in an authority may be  exercised by a superior authority in its  discretion.  "Note (1): powers vested in an authority may be  exercised by a superior authority in its  discretion vide Regulation 7(e) of A.P.S.E.Board  Employees Discipline Appeal Regulations".  

       The question is as to whether the respondent was at  all deprived of his right of appeal in the present case.  In  Surjit Ghosh (supra) this Court held at scc p.477 as under:

"However, when an appeal is provided to the  higher authority concerned against the order  of the disciplinary authority or of a lower  authority and the higher authority passes an  order of punishment, the employee concerned  is deprived of the remedy of appeal which is a  substantive right given to him by the  Rules/Regulations. An employee cannot be  deprived of his substantive right. What is  further, when there is a provision of appeal  against the order of the disciplinary authority  and when the appellate or the higher authority  against whose order there is no appeal,  exercises the powers of the disciplinary  authority in a given case, it results in  discrimination against the employee  concerned".

       It is to be noted that in Surjit Ghosh (supra) there

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was no further appeal provision provided against the order of  the higher authority and no appeal could be preferred and,  therefore, the appellant was deprived of the appeal provision.  It is in those circumstances the above observation was made.   Surjit Ghosh’s case was reconsidered and distinguished again  by this Court in Balbir Chand’s case (supra).  It was pointed  out at scc p.373 as under:- "It is now well settled legal position that an  authority lower then the appointing authority  cannot take any decision in the matter of  disciplinary action. But there is no prohibition  in law that the higher authority should not  take decision or impose the penalty as the  primary authority in the matter of disciplinary  action. On that basis, it cannot be said that  there will be discrimination violating Article 14  of the Constitution or causing material  prejudice. In the judgment relied on by the  counsel, it would appear that in the Rules,  officer lower in hierarchy was the disciplinary  authority but the appellate authority had  passed the order removing the officer from  service. Thereby, appellate remedy provided  under the Rules was denied. In those  circumstances, this Court opined that it  caused prejudice to the delinquent as he would  have otherwise availed of the appellate remedy  and his right to consider his case by an  appellate authority on question of fact was not  available. But it cannot be laid as a rule of law  that in all circumstances the higher authority  should consider and decide the case imposing  penalty as a primary authority under the  Rules, In this case, a right of second  appeal/revision also was provided to the  Board. In fact, appeal was preferred to the  Board. The Board elaborately considered the  matter through the Chairman. It is not  violative of Article 14 of the Constitution".                                    Reverting back to the facts of the given case there is  no dispute that the Member Secretary of the Board was the  disciplinary authority.  Show cause notice was issued under  the signature of the Member Secretary, the disciplinary  authority.   However, the penalty of compulsory retirement  from service was inflicted by the Chairman of the Board, who  it is not disputed, is the Appellate Authority.  What both the  learned Single Judge and the Division Bench have failed to  notice was that despite the aforesaid facts the respondent was  not deprived of the right of appeal.  An appeal lay to the Board.    Ultimately, the respondent has filed before the Board a  detailed petition styled as mercy petition on 1.10.1995  questioning the order of show cause dated 9.1.1995 and his  explanation submitted to final show cause notice dated  7.2.1995 and challenged the final order passed by the  Chairman on 6.9.1995.  Though it was styled as mercy  petition, the Board has treated the petition as an appeal  petition.  The Board after considering the appeal rejected the  same by an order dated 31.8.1996.                   It appears that the order dated 31.8.1996 passed by  the Board rejecting his appeal has not been assailed either  before the learned Single Judge or before the Division Bench.   It has attained finality.  Therefore, it cannot be said that the  appellant was deprived of the remedy of appeal, which caused  prejudice to him.

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               Mr.L.N.Rao, learned senior counsel, however,  contended that prejudice has been caused to the respondent  as the punishment of compulsory retirement imposable under  the proviso appended to clause (2) of Regulation 10 provides  that punishment of compulsory retirement which comes  within the provision of clause 6 to Explanation (1) of  Regulation 5 shall be imposed by the competent authority with  the concurrence of the committee constituted thereunder.    According to him the order passed by the Chairman of the  Board is not however subject to concurrence of the committee.   It is his further say that if the order inflicting compulsory  retirement would have been passed by the disciplinary  authority, such order could have been subjected to  concurrence of the committee.  However, in the present case,  since the imposition of compulsory retirement was inflicted by  the Chairman, the case of the respondent has been prejudiced  as the order passed by the Chairman was not subjected to  concurrence.  We are unable to accept this contention.  As  already noticed all the grievances laid by the respondent in  detail in his appeal memo dated 1.10.1995 was considered by  the highest hierarchy, namely the Board, and was rejected.   We are, therefore, of the opinion that in the given facts of this  case, no prejudice whatsoever has been caused to the  respondent.  As already noticed, the respondent has not taken  grievances of the Board’s order dated 31.8.1996.   This would  show that he was satisfied with the appellate order of the  Board.            In the view that we have taken the order of the  learned Single Judge dated 27.4.2001 passed in W.P No.16332  of 1996 and the order of the Division Bench dated 8.10.2001  passed in Writ Appeal No.1507 of 2001 are not sustainable in  law.  They are, accordingly, set aside.  The appeal is allowed.   Writ Petition filed by the respondent stands dismissed.  Parties  are asked to bear their own costs.