Raghavaiah D. vs Chairman, A.P.S.E.B., Hyderabad and Others

S. Parvatha Rao, J.—The Petitioner questions the action of the 2nd respondent i.e., the Chief Engineer, Electricity, Central Zone, Vijayawada in "Imposing the punishment against the petitioner by way of disciplinary action" under Memo No. Persl/CF3(97-A) VJA/338/90, dated April 10, 1990, as confirmed by the 1st respondent i.e. the Chairman, Andhra Pradesh State Electricity Board (''the Board'' for short) in Memo No. DP/DMV/S.II/670-02/90-2, dated March 25, 1991, as illegal and void and consequently to direct the respondents to reinstate him to duty with all consequential benefits.

It is not in dispute that an enquiry was duly conducted by the 2nd respondent after giving adequate opportunity to the petitioner in respect of the following charges :-

"CHARGE I :

You have abstained from duty at Operation Section, Karampudi from July 22, 1983 F.N. You have not submitted proper leave application. Hence, your absence from July 22, 1983 F.N. is unauthorised.

GROUNDS FOR THE CHARGE :

While you were working as AAE (OP) Karampudi, you have suddenly abstained from duty with effect from July 22, 1983 F.N. without any intimation to your Superior Officers and without obtaining proper permission from the competent authority. This constitutes misconduct as per Reg. 6 (XXIX) of Board''s Employees Discipline and Appeal Regulations.

CHARGE II :

Again you have abstained from duty with effect from May 4, 1984 F.N. You have not submitted proper leave application. Hence, your absence from May 4, 1984 F.N. onwards is also unauthorised.

GROUNDS FOR THE CHARGE :

While you were working as AAE/Constn/Macherla you have suddenly abstained from duty with effect from May 4, 1984 F.N. without any intimation to your superior Officers and without obtaining proper permission from the competent authority. Hence, your absence with effect from May 4, 1984 F.N. is unauthorised. This period of absence with effect from May 4, 1984 F.N. has exceeded one year period of unauthorised absence by May 5, 1985 and this act on your part has attracted the provisions under Reg. 28(3) of Board''s S.R. Part I.

CHARGE III :

You have not responded to the two telegrams dated April 15, 1986 and July 9, 1986 issued by the Superintending Engineer/O/Vijayawada directing you to appear before the Superintending Engineer on April 16, 1986 and July 14, 1986 respectively. This act on your part amounts to gross disobedience towards the superior officers and this constitutes misconduct under Reg., 6 (XXXIV) of Board''s Employees Discipline and Appeal Regulations.

GROUNDS FOR THE CHARGE :

On your willingness to join duty you were given posting orders in Memo No. 4590 of December 21, 1985 by Superintending Engineer/O/Vijayawada pending regularisation of your unauthorised absence. On your representation dated December 27, 1985 requesting for change in the place of posting you were given an opportunity by the Superintending Engineer twice to appear before him in person which you have failed to avail the opportunity on both the occasions.

CHARGE IV :

You have not properly handed over the charge of the post of Operation Section, Karampudi after you have joined duty at Macherla as AAE/Constn. to your successor, Operation Section, Karampudi. You have also not closed the work orders operated by you during the period you have worked in Operation Section, Karampudi. This constitutes misconduct on your under Reg. 6 (XXXVI) of Board''s Employees Discipline and Appeal Regulations.

GROUNDS FOR THE CHARGE :

After your joining duty at Macherla on January 3, 1984 as AAE/Constn. you have not handed over the proper charge to your previous office in complete shape to your successor.

CHARGE V :

You have not properly handed over the charge of the post of construction section, Macherla till this day, after your abstention from duty with effect from May 4, 1984, F.N. You have also not closed the work orders operated by you in the Construction Section, Macherla. This constitutes misconduct under Reg. 6(XXXVI) of Board''s Employees Disciplinary and Appeal Regulations.

CHARGE VI :

In view of all the above foregoing, Sri D. Raghavaiah, former AAE (E1) has indulged in unauthorised absence exceeding one year period and consequently attracts the provisions under Reg. 28(3) of Board''s Service Regulations, Part-I."

5 In his Memo No. Persl/CF 293-89/1067/89, dated October 27, 1989, the 2nd respondent observed as follows :-

"8. After careful consideration of all the aspects as indicated above, the Chief Engineer/Central Zone/Vijayawada has provisionally come to the conclusion :

(i) To treat the period of unauthorised absence from July 22, 1983 to January 2, 1984 as LLP without pay and allowances.

(ii) To treat the period of unauthorised absence from May 4, 1984 F.N. to May 28, 1984 A.N. as LLP without pay and allowances, and

(iii) to declare that the A.A.E. is deemed to have resigned from the service of A.P.S.E.B. w.e.f. October 11, 1984 F.N. in terms of Reg. 28(3) of Board''s Service Regulations Part-I without prejudice to the rights of the A.P.S.E. Board to recover any loss sustained by the Board due to non-closing the work orders operated by him prior to July 21, 1983."

And under that Memo the petitioner was required to explain within fifteen days from the date of receipt of that Memo "as to why he should not be awarded with the punishment for the grave lapses on his part found against him". The petitioner responded by his reply dated November 14, 1989 stating as follows :-

"7. (i) & (ii)(a) : As submitted in several applications, I could not apply leave in advance due to sickness and sudden unconsciousness only. The nature of my sickness has not permitted to make a leave application in advance and obtain permission and then proceed on leave. The medical certificates produced by me certify the same.

(ii)(b) : I did not leave for Guntur and posted my letter from there leaving Macheria. I have posted my leave application dated October 10, 1984 from Macherla on October 11, 1984. The postal certificate produced by me indicate the same. I have already submitted explanation for not attending before the Superintending Engineer, Operations, Vijayawada.

(iii) : As observed and experienced by me the Specialists at Madras like the famous Neuro-Surgeons Dr. Rama Murthy, Dr. Paupa Ratham (Ortho) are not seeing patients on the spot. They are fixing appointments one month or even two months in advance. For example, I wanted to check myself with Dr. B. Rama Murthy on October 8, 1989 due to some trouble. The hospital authorities told me that he will be available only on November 17, 1989 (and) until then I have to live in rooms with them at Madras.

I submit that the same thing happened to me on both the dates. I submit to kindly make a detailed study about this point and make justice to me.

(iv)(v) and (vi) : As already submitted by me the reasons for the points raised is only due to my bad health. Therefore, I request to kindly consider for dropping any action proposed.

In the light of the above facts, I request to kindly post me early to indoor duties or if it is not possible, I may be permitted to make a further representation on all the grounds raised."

Finally, under the impugned Memo dated April 10, 1990 the 2nd respondent, insofar as it is relevant for the present Writ Petition, held as follows :-

"Sri D. Raghavaiah, AAE is deemed to have resigned from A.P.S.E.B''s service with effect from October 11, 1984 F.N. in terms of Reg. 28(3) of A.P.S.E.B. Service Regulations Part-I and he ceases to be an employee of the A.P.S.E. Board from October 11, 1984 F.N. onwards, without prejudice to the rights of the A.P.S.E.B. to recover any loss sustained by the Board due to non-closing of work orders operated by Sri D. Raghavaiah during his tenure as Addl. Assistant Engineer in the A.P.S.E.B. The estimated value of the material valued at Rs. 5,38,773.92 (Rupees five lakhs thirty eight thousand seven hundred and seventy three and paise ninety two) shall be recovered from him."

Petitioner''s appeal to the 1st respondent was dismissed under the impugned Memo dated March 25, 1991. The 1st respondent considered the various aspects in detail and held that no grounds were made out for interfering with the order passed by the 2nd respondent.

The writ Petition was admitted on July 8, 1991 and notice was ordered in W.P.M.P. No. 10474 of 1991 seeking suspension of the operation of the order of the 2nd respondent dated April 10, 1990 as confirmed by the order of the 1st respondent dated March 25, 1991, pending the Writ Petition. On September 16, 1991 interim suspension of the impugned orders was granted, pending further orders in the W.P.M.P. After the counter affidavit on behalf of the respondents dated June 21, 1992 was filed, by order dated July 8, 1992 in the W.P.M.P., this Court vacated the interim suspension in regard to the termination of service and continued it in regard to the recovery of the amount, pending the Writ Petition.

In the counter affidavit filed on behalf of the respondents, it is stated that the impugned orders were passed after giving full opportunity to the petitioner and after oral enquiry as sought by him. It is also stated that as the enquiry was conducted by the disciplinary authority himself, there was no separate report of the enquiry officer and that Memo dated October 27, 1989 given by the 2nd respondent to the petitioner contained all the reasons for arriving at the provisional conclusions of the 2nd respondent mentioned therein. In the said Memo the petitioner was also asked to submit his explanation for the punishment proposed therein.

The learned Counsel for the petitioner, Mr. M. R. K. Choudhary. questions the order in Memo dated April 10, 1990 of the 2nd respondent firstly on the ground that the 2nd respondent was not the disciplinary authority to make the impugned order. He relies on the Andhra Pradesh State Electricity Board Employees'' Discipline and Appeal Regulations (''the Regulations'' for short) made under B.P.Ms. No. 550 dated August 21, 1967, without noticing the subsequent amendments made. Mr. R. Ramanujam, learned Standing Counsel for the Board, points out that the Schedule to the Regulations made under B.P.Ms. No. 550 dated August 21, 1967 was substituted by a new schedule 2 by B.P.Ms. No. 35 dated January 23, 1971 with effect from January 27, 1970 (i.e. from the date of Board''s Memo No. 5413-A2/69-3) and that Clause (a) of Regulation 7 read with the Schedule to the Regulations makes it clear that the Chief Engineer was the competent authority at the relevant time to impose major penalties in respect of Additional Assistant Engineers falling under Class III (ii) under "II. Engineering Services". The petitioner was working as Additional Assistant Engineer at the relevant time. This objection of the learned Counsel for the petitioner, therefore, falls flat.

The next contention urged by Mr. M. R. K. Choudhary, learned Counsel for the Petitioner, is that the charges were vague, particularly Charge VI, which related to the unauthorised absence of the petitioner from duty for more than one year. He submits that the date from which the petitioner was treated as unauthorisedly absent for more than one year was not mentioned and that made the charge vague. We do not find any merit in this contention. The first charge itself was that the petitioner abstained from duty without proper leave application from July 22, 1983; the second charge was that he abstained from duty from May 5, 1984; and the third charge was that he did not respond to two telegrams dated April 15, 1986 and July 9, 1986. The petitioner does not dispute that he was continuously absent from duty from October 11, 1984 onwards for one reason or other. In the grounds for Charge III, it was stated that after the petitioner expressed his willingness to join duty he was given posting orders in Memo No. 4590 of December 21, 1985 by 3rd respondent pending regularisation of his unauthorised absence; and that on his representation dated December 27, 1985 requesting for change in the place of posting, he was asked to meet the 3rd respondent by telegrams dated April 15, 1986 and July 9, 1986, which the petitioner admittedly did not do. Prior to Memo dated March 21, 1989 issued by the 2nd respondent to the petitioner enclosing the charge-sheet and asking the petitioner to submit his written statement to the charge-sheet, there was a long history of the petitioner absenting himself for long periods right from July 22, 1983, reference to which was made by the 3rd respondent in his letter No. SE/O/VJA/Ad.U1/713/89 dated February 18, 1989 addressed to the 2nd respondent. A copy of this letter was filed by the petitioner himself along with the affidavit in support of the present Writ Petition and it was also referred to in Memo dated March 21, 1989 of the 2nd respondent served on the petitioner. Charge VI itself refers to Regulation 28(3) of Part I of the Andhra Pradesh State Electricity Board Service Regulations (''Service Regulations'' for short) Which reads as follows :

"28(3) Any employee of the Board who remained unauthorisedly absent from duty for a continuous period of one year shall be deemed to have resigned from service from the date of absence and shall automatically cease to be in Board Employment."

This was added by B.P.Ms. No. 930 dated December 18, 1982. Charge VI merely points out that the petitioner "has indulged in unauthorised absence exceeding one year period and consequently attracts the provisions under Regulation 28(3) of Board''s Service Regulations Part I". Therefore, in the background of the petitioner''s continuous absence for long stretches and, in particular, his absence continuously from October 11, 1984, the question posed by Charge VI is whether the petitioner was unauthorisedly absent for a period exceeding one year attracting the provisions of Regulation 28(3) of the Service Regulations. The petitioner understood this very well and in his written statements dated April 5, 1989 and May 19, 1989 he sought to meet Charge VI by stating that he made the following leave applications :

(i) Leave application dated October 10, 1984 submitted to A.D.E./O/Macherla for the period from October 11, 1984 to October 31, 1984;

(ii) Leave application dated October 31, 1984 submitted to A.D.E./O/Macherla for the period from October 11, 1984 to November 31, 1984;

(iii) Leave application dated November 30, 1984 submitted to A.D.E./C/Macherla for the period from October 11, 1984 to December 31, 1984;

(iv) Leave application dated January 1, 1985 submitted to A.D.E./C/Macherla for the period from October 11, 1984 to January 31, 1985;

(v) Leave application dated February 1, 1985 submitted to A.D.E./O/Macherla for the period from October 11, 1984 to March 31, 1985; and

(vi) Earned Leave application in letter dated May 1, 1985 along with medical certificates for the period from October 11, 1984 to October 31, 1985 submitted to SE/OP/VJA.

In his statement dated May 19, 1989, the petitioner further stated as follows :

"At this juncture posting orders posting me to Tailapalli are issued vide SE/O/VJA, Memo No. Ad/U1/4590/85, dt. December 21, 1985 and I have submitted a representation to the Superintending Engineer, Operation, Vijayawada to consider my ill-health and post me elsewhere vide my letter dated December 27, 1985. The request is still not considered though the posting orders were cancelled vide SE''s Memo No. Ad/U1/2734/86 dt. August 4, 1986 in spite of continuous pursuance. Since no posting orders are received by me enabling me to join duty after cancellation of the said orders have applied for leave upto March 31, 1988. Copy of the same is herewith enclosed along with a copy of the medical certificate.

Further I submit that at no time the authorities have intimated me that my leave is refused within 10 days from the date of my earned leave applications instructed in the S.E.''s Memo No. DM/SER.I/3900-H3/86-1, dt. August 8, 1986. From April 1, 1988 onwards to till date I am waiting for the orders ..."

Thus, the petitioner was fully aware of the scope of the charge and he sought to meet it by relying on certain leave applications of his for the period from October 11, 1984. His own leave applications admit that he was continuously absent from duty for more than one year from October 11, 1984. The question, therefore, was only whether his absence was unauthorised or not. His case was not that he was granted leave from October 11, 1984.

The learned Counsel for the petitioner relies on the decision of a two Judges Bench of the Supreme Court in Sawai Singh Vs. State of Rajasthan, in support of his contention that vague charges vitiate disciplinary enquiries. In that case the Supreme Court held that one of the charges i.e., that the delinquent in that case while functioning as a Returning Officer conducting a Panchayat election had manipulated the withdrawal of a dummi candidate in that election by cheating, was vague and not clear, observing that it was not clear how the delinquent was alleged to have manipulated the withdrawal. The basis for that decision was explained by the Supreme Court as follows :

"It has been observed by this Court in Surath Chandra Chakrabarty Vs. State of West Bengal, that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of Andhra Pradesh Vs. Sree Rama Rao, and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation

The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties . . . ."

In Surath Chandra''s case (supra) the facts were stated by the Supreme Court as follows :

"It is common ground that a statement of the allegations on which each charge was based was never sent to the appellant. He sent a letter dated August 5, 1949 with reference to the communication containing the charges. He emphatically denied what had been alleged against him and described the charges as false and actuated by malafides. What is worth noticing is that the appellant in categorical terms stated that the charges, and allegations were vague, indefinite and lacking in material particulars and pointed out that unless the charges are made specific to the point and contain full details with date, time, place and person etc., it is impossible for me to meet them properly." No further particulars or details were supplied at that stage or subsequently . . . ."

This objection of vagueness and indefiniteness of the charges was taken by the appellant in that case even at the stage when the charges were served on him. Holding that the charges were vague and indefinite because of lack of particulars, the Supreme Court observed as follows :

".... In this connection reference may be made to Fundamental Rule 55 which provides, inter alia, that without prejudice to the provisions of the Public Servants Enquiry Act, 1850 no order of dismissal, removal or reduction shall be passed on a member of service unless he is informed in writing of the grounds, on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him . . . ."

In the present case the grounds for each charge were specifically stated. To recapitulate, the first charge itself mentioned that the petitioner suddenly abstained from duty with effect from July 22, 1983 without submitting proper leave application and the second charge stated that he abstained from duty from May 4, 1984 without submitting proper leave application; the third charge was that the petitioner did not respond to the two telegrams dated April 5, 1986 and July 9, 1986 issued by the 3rd respondent directing him to appear on April 16, 1986 and July 14, 1986 respectively; In the grounds for that charge, it was specifically stated that on the petitioner expressing his will-ingness to join duty he was given posting orders in Memo dated December 21, 1985 by the 3rd respondent "pending regularisation of your (petitioner''s) unauthorised absence" and that on his representation dated December 27, 1985, requesting for change in the place of posting, he was given an opportunity by 3rd respondent by the said telegrams but, he failed to avail the opportunity on both the occasions; Charge VI mentioned that, in view of the above, the petitioner indulged in unauthorised absence exceeding one year period and consequently attracted the provisions under Regulations 28(3) of the Service Regulations. The petitioner did not question any of the charges as vague or wanting in particulars. On the other hand, as already noticed above, he submitted three written statements in an attempt to explain his absence relying on his leave letters. That was considered by the 2nd respondent as per his Memo dated October 27, 1989, wherein it was also mentioned that an oral enquiry was held and the petitioner''s deposition was also recorded on May 15, 1989.

Keeping in view the factual matrix of the present case and the above observations of the Supreme Court, it is not possible for us to hold that the petitioner did not have fair and adequate opportunity or that the principles of natural justice are violated. We find that there is adequate and substantial compliance with the requirements of fair play and reasonable opportunity. As observed by the Supreme Court in State Bank of Padala vs. S. K. Sharma (1996-II-LLJ-296), while applying the rule of ''audi alterm partem (the primary principle of natural justice), the Court must always bear in mind the ultimate and overriding objective underlying the said rule to ensure a fair hearing and to ensure that there is no failure of justice and it is this objective which should guide the Court in applying the rule to varying situations that arise before it. So tested, we find no failure of justice.

In Memo dated October 27, 1989 the 2nd respondent observed as follows :

"As stated by him (petitioner), he has again availed himself of the leave from October 11, 1984 F.N. onwards by posting a letter under certificate of posting from Guntur. He has committed a grave irregularity in having left his place of work Macheria to Guntur without approval of competent authority and abstained himself with effect from October 11, 1984 and continued his unauthorised absence exceeding one year beyond October 11, 1985. He has not joined duty at the place of posting as per SE/O/Vijayawada Memo dated December 21, 1985. He has not responded to the directions of the SE/O/VJA in telegrams dated April 15, 1986 and July 9, 1986 to present himself before the Superintending Engineer on April 16, 1986 and July 14, 1986 respectively to examine his representation for a change of place.

His contention that he had left for Madras on April 15, 1986 due to the serious condition and had appointment with the Doctors at Madras on April 29, 1986 that is after two weeks of his stay at Madras is not convincing and indicates that his condition is really not serious and this is only a ploy to avoid his presence before the Superintending Engineer on April 16, 1986. Again he has stated that he left for Madras in the first week of June, 1986 and consulted the Doctors there on July 16, 1986 is also not convincing and is only a ploy to avoid his presence before the Superintending Engineer on July 14, 1986 intentionally."

On that basis the 2nd respondent observed that the period of absence of the petitioner from October 11, 1984 upto February 28, 1988 was unauthorised absence for a continuous period of more than one year, thereby attracting the provisions of the said Regulation 28(3), and sought the explanation of the petitioner as to why he should not be deemed to have resigned from the service of the Board with effect from October 11, 1984 in terms of the said Regulation 28(3). After receiving the petitioner''s explanation dated November 14, 1989, the 2nd respondent very detailedly considered all aspects of the matter in his final order in Memo dated April 10, 1990 deeming the petitioner to have resigned from the Board''s service with effect from October 11, 1984 in terms of Regulation 28(3) and thus ceased to be an employee of the Board from October 11, 1984. Observing that the prime issue for consideration was whether the absence of the petitioner with effect from October 11, 1984 for more than one year was unauthorised, the 2nd respondent dealt with that aspect of the matter as follows :

"The ADE/O/Macherla in Memo No. 761 dated February 5, 1985 has returned two leave applications to the accused. One application is dated October 31, 1984 seeking leave from October 11, 1984 to November 30, 1984 on medical grounds as he is undergoing nature cure treatment. The second application is dated November 30, 1984 seeking leave from October 11, 1984 F.N. to December 31, 1984 on the same grounds as indicated in the earlier one. Both the applications are not accompanied with medical certificate. These two applications together with copy of the said ADE''s Memo one medical certificate and a copy of prescription were submitted by him to the Superintending Engineer/O/Vijayawada in his letter No. 1, dated February 22, 1985. The medical certificate is dated February 10, 1985 of Karampudi indicating that the accused needs rest for six months from October 11, 1984 to March 31, 1985 and the copy of the prescription is dated February 11, 1985 of Guntur. Either the memo of the Assistant Divisional Engineer to the accused or the letter of the accused to the Superintending Engineer did not refer to the leave application of the accused dated October 10, 1984 which is stated to have been posted on October 11, 1984 at Macherla under certificate of posting. This clearly belies the contention of the accused that he proceeded on leave on application. The leave application dated October 31, 1984 and the medical certificate dated February 10, 1985 of Karampudi is a clear indication that the accused had abstained from duty on his down, with effect from October 11, 1984.

In Memo No. 1474 dated April 24, 1985 the Superintending Engineer/O/Vijayawada has called for his explanation on various grave lapses besides specifically indicating that his absence from duty is unauthorised and in terms of B.P.Ms. No. 930 dated December 18, 1982 read with Memo No. 2052 dated August 19, 1983, he is deemed to have resigned from Board''s Service from the date of such absence. He has responded to this and has submitted explanation dated May 1, 1985 which was received in the S.E.''s Office on May 27, 1985 along with another leave application from him dated April 24, 1985 for leave from October 11, 1984 to October 31, 1985 with a medical certificate dated March 31, 1985 of Karampudi indicating that the accused needs rest upto October 31, 1985 and three reports dated April 24, 1985 and April 25, 1985 from Appollo Hospital, Madras. Thus the leave applications so far submitted by the accused are not accepted and he was also declared as unauthorised absentee. He has not submitted any leave application after the one dated November 30, 1984 till the other one dated April 24, 1985 which was received in SE''s Office on May 27, 1985 and hence his absence from October 11, 1984 F.N. to May 27, 1985 is a continuous unauthorised absence."

The 2nd respondent also found that the petitioner gave willingness letter dated November 21, 1985 to join duty and that the 3rd respondent gave an opportunity to him by issuing posting orders in Memo No. 4590 dated December 21, 1985 and that the petitioner, instead of joining duty, represented in his letter dt. December 27, 1985 that he should be posted at Vijayawada, Tenali or Bapatla and thereafter failed to respond to the two telegrams issued by the Superintending Engineer on April 15, 1986 and July 9, 1986. The 2nd respondent finally held as follows :

".... In his explanation second cited (petitioner''s explanation dated April 5, 1989), he has stated that he was seriously ill and left for Madras on April 15, 1986 and after the treatment he had returned to Tenali on May 12, 1986 and had seen the telegram dated April 15, 1986. Again he went to Madras during June 1986 since his condition was very bad etc; hence he could not attend the Superintending Engineer''s Office. This contention of the accused is not acceptable. If he is so seriously ill and is not fit to join duty, there is no point in his claim that he was not issued with posting orders. This clearly explains that the accused had chosen to play hide and seek without any intention to join duty. He had resorted to file an application seeking for leave on and off whenever it suits his convenience, with bad intentions only but not to join duty. In spite of giving ample opportunities as stated above, the accused has frustrated all of them by not responding to the same. He has made no representation nor submitted leave application till September 25, 1987. Thus his absence with effect from October 11, 1984 and beyond October 11, 1985 is continuous unauthorised absence in terms of Reg. 28(3) of Board''s Service Regulations Part-I, and accordingly, he is deemed to have resigned from Board''s Service with effect from October 1, 1984 F.N."

We do not see how we can interfere with these findings in exercise of power of judicial review under Article 226 of the Constitution of India. It cannot be said that the reasoning adopted by the 2nd respondent is perverse or that there was no basis for his findings.

The learned Counsel for the petitioner invites us to interfere with the punishment imposed involving the principle of proportionality. In the light of the law laid down by the Supreme Court as regards the power of this Court to interfere with the punishments imposed by the disciplinary authorities, we find that no grounds are made out for interference in the present case. In State of U.P. and others Vs. Nand Kishore Shukla and another, the Supreme Court observed as follows :

"It is settled law that the Court is not a Court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the proved misconduct against the government servant. Its proportionality also cannot be gone into by the Court ...."

There is also the judgment of the Constitution Bench of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, judgment of three Judges Bench of the Supreme Court Union of India (UOI) Vs. Sardar Bahadur, and Union of India (UOI) Vs. Parma Nanda, judgment of two Judges Bench of the Supreme Court in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, and of the majority in B.C. Chaturvedi Vs. Union of India and others, . There are also the recent decisions of two Division Benches of this Court in District and Sessions Judge, The District and Sessions Judge and Another Vs. T. Madhava Rao, and High Court of Andhra Pradesh Vs. G. Narasa Reddy and Another, .

We may also point out that in the present case the respondents applied Regulation 28(3) of Part I of the Service Regulations after giving reasonable opportunity to the petitioner and no question of proportionality of punishment arises. What the Supreme Court has observed in D. K. Yaday vs. J. M. A. Industries Limited (1993-II-LLJ-696) is that "before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice." This has been reiterated by a Division Bench of this Court, with reference to Regulation 28(3) of the Service Regulations, in Chief Engineer, Central Zone, Andhra Pradesh State Electricity Board, Vijaywada and Others Vs. K. Naga Hema, . In the present case the principles of natural justice and fair play are not in any way violated as already observed by us earlier.

Mr. M. R. K. Choudhary next contends that the order of the 1st respondent communicated to the petitioner in Memo dated March 25, 1991 is bad on the ground that it confirmed the order of the 2nd respondent without giving any reasons and in a mechanical way. In State Bank of Bikaner and Jaipur and others Vs. Prabhu Dayal Grover, , the Supreme Court observed that the appellate authority need not give detailed reasons in a confirming order. Regulation of the Regulations dealing with the powers of the appellate authority provides that "an appellate authority or the Board may call for any appeal admissible under these Regulations and may pass such orders thereon as it considers fit." Clause (2) of Regulation 15 and Clause (2) of Regulation 17 provide that "the appellate authority shall also consider whether the authority which imposed a penalty has followed strictly the procedure prescribed in these Regulations before such penalty was imposed. Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such authority considers, for reasons to be recorded in writing, that the error or defect has neither caused injustice to the person concerned nor has materially affected the decision in the case." The decision of the Supreme Court in Prabhu Dayal Gover''s case (supra) applies on all fours to the facts of the present case. The order of the 1st respondent communicated in Memo dt. March 25, 1991 shows that he considered the various contentions raised by the petitioner in the appeal and, in the result, he did not see any reason to interfere with the order passed by the 2nd respondent. In State Bank of India v. S. S. Koshal the Supreme Court was of the opinion that in an order of affirmance "it was not obligatory on the part of the appellate authority to say more than this as the order as it is, shows application of mind." See also the judgment of a Division Bench of this Court, to which one of us S. Parvatha Rao, J., is a member, in B. Balasudarshan Vs. Registrar (Management), High Court of Andhra Pradesh and Another, . Examining the order of the 1st respondent in the light of the above decisions, we are satisfied that it was not made in a mechanical way or without application of mind.

Lastly, Mr. M. R. K. Choudhary submits that the order of the 2nd respondent directing recovery of Rs. 5,38,773.92 Ps. from the petitioner towards loss sustained by the Board is bad because that did not form part of any of the charges framed against the petitioner and no mention of any loss sustained by the Board was made in any of the grounds for the charges. We agree. The learned Standing Counsel for the Board, Mr. R. Ramanujam, is unable to support this part of the order. However, the petitioner has not questioned specifically this part of the order in his appeal filed before the 1st respondent. He has also not questioned this part of the order in the affidavit and the relief sought by him is only a declaration that "the action of the 2nd respondent in imposing the punishment against the petitioner by way of disciplinary action which is confirmed by the 1st respondent . . . . as illegal and void and consequently to direct the respondents to reinstate the petitioner to duty with all consequential benefits . . . ." But in view of the fact that the portion of the order directing recovery of Rs. 5,38,773.92 Ps. was made in violation of the principles of natural justice and fair play, we set aside and quash that part of the order of the 2nd respondent as confirmed by the 1st respondent. We make it clear that it will be open to the respondents and the Board to recover from the petitioner any loss sustained by the Board due to his action or inaction, in any manner open to the Board in accordance with law.

Except to the extent indicated above, the Writ Petition is dismissed. No costs.