JUDGEMENT
-
(1.)The petitioner while working as A.A.O. large-scale defalcation of amount more than Rs. 4,30,000/- was noticed by the Board which was with the connivance of several others. In view of the same, the Board by proceedings dated 8.1.1987 appointed Enquiry Officer to probe into the matter. The enquiry officer issued charge memo on 25.8.1987 framing 7 charges to which the petitioner submitted his explanation on 25.10.1987. The enquiry officer after conducting a detailed enquiry into the charges submitted his report to the Board stating that the charges are established and recommended for dismissal of the petitioner from service, besides recovery of Rs. 4,33,440.16. The Chairman of the Board, who ordered departmental enquiry, on examination of the report accepted the finding of the enquiry officer and also provisionally concluded dismissal of the petitioner from service and issued show cause notice on 9-8-1988 duly supplying report of the enquiry officer. The petitioner submitted his explanation to the show cause notice on 17-9-1988 pointing out several irregularities numbering 9 with regard to conducting enquiry by the enquiry officer and requested to set aside the enquiry officer's report as no opportunity was given to him to defend himself in the regular enquiry. The Ist respondent after considering the explanation offered by the petitioner discussed each point by giving reasons and decided to confirm the punishment of dismissal from service against the petitioner besides recovery of Rs. 4,32,440.16. Accordingly, the petitioner was removed from service by the impugned order dated 4.6.1990. Questioning the same present writ petition is filed contending that the 1st respondent, who is the appellate authority under the APSEB Discipline and Appeal Regulations (for short 'the Regulations') framed by the Board, himself passed the dismissal order depriving the petitioner's right to file an appeal, which is in violation of principles of natural justice. The criminal proceedings initiated against the petitioner for the alleged defalcation was also ended in acquittal. The enquiry officer conducted the enquiry in violation of principles of natural justice and not supplied the material and nor afforded reasonable opportunity to the petitioner to defend his case. Though the petitioner in his explanation pointed out the above irregularities, in the impugned order the same were not properly adverted which amounts to denial of reasonable opportunity. In view of the same, the impugned order is liable to be set aside and the petitioner has to be reinstated into service.
(2.)In response to Rule Nisi, the Board filed a detailed counter stating that consequent on the outbreak of fire in E.R.O. Nandigama on 15-2-1986 and 16-2-1986 certain records were destroyed. It came to light that Board's funds amounting to lakhs of rupees were defalcated from 1/82 to 2/86 by some of the employees and to suppress the evidence, the records of the ERO were gutted by some vested interests. The petitioner and some other employees were kept under suspension pending enquiry into the grave charges. A police case was also filed and the Additional Sessions Judge in his judgment held that it is a clear case of mischief, by fire, in gutting official records as evidenced by the chemical examiner's report, but acquitted the accused persons for lack of evidence. A departmental enquiry was ordered by appointing Sri.B. Koti Reddy. Senior Accounts Officer as enquiry officer to enquire into the allegations of defalcation of Board's funds against the petitioner and others. The enquiry officer after preliminary investigation into the same, issued charge memo framing 7 charges. The enquiry officer after following the procedure laid down in the Regulations submitted his report. As 17 employees of different categories are involved in the case, the Chairman, APSEB appointed the enquiry officer. The petitioner was given opportunity during the course of enquiry by supplying relevant material to him in support of the charges along with the charge sheet. Apart from the same. the petitioner verified the records from 10.8.1987 to 14-8-1987 and also acknowledged on 14-8-1987 about verification of the records. Relevant portion of the preliminary enquiry report, which was the basis for the charges, copies of statements of the staff recorded during the enquiry on the fire accident in the sub/ERO. Nandigam a were furnished to the petitioner. Inspite of giving several opportunities to the petitioner to attend the oral enquiry to give evidence in person on 24-11-1987, if necessary on 25.11.1987 by memo dated 7-11-1987 the petitioner failed to avail the same and sent a telegram stating that he is not interested to give oral evidence. The petitioner was also informed that permitting him to take assistance of co-worker/advocate during the enquiry does not arise in view of Regulation 10(2)(b) of the Regulations except under special circumstances. In view of the same, the request of the petitioner to engage a counsel was rejected. Disciplinary authority considered all the objections raised by the petitioner and rejected the same. In view of the same, there is no infirmity in the order passed by the disciplinary authority and prays for dismissal of the writ petition.
(3.)Learned Counsel for the petitioner, Sri R. Subhash Reddy contends that inspite of pending criminal proceedings the enquiry officer proceeded with the departmental enquiry that cannot be permissible under law. When the petitioner made specific plea to defer the departmental proceedings until the criminal proceedings are concluded but the same was not acceded to by the enquiry officer. When the petitioner sought to engage coworker, he was not permitted which amounts to denial of reasonable opportunity. The necessary documents, which were sought by the petitioner, were also not supplied to put forward his case effectively. The same amounts to denial of reasonable opportunity. When the Chairman of the Board himself acted as disciplinary authority and passed the impugned order inflicting punishment of removal from service which resulted in depriving the right of appeal to the petitioner as held by this Court in Ch. S.R.A. Swamy v. A.P.S.E.B.,1996 1 LabIC 1948, which was confirmed in W. A. No. 175 of 1996. In view of the same the learned Counsel submits that the order passed by the 1st respondent is liable to be set aside and the matter may be remitted to the enquiry officer and the petitioner may be given reasonable opportunity to defend his case during the course of enquiry.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.