S. Moosa Ali Hashmi vs The Secretary, A.P. State Electricity Board

Immaneni Panduranga Rao, J.—The petitioner was appointed as a Lineman in Andhra Pradesh State Electricity Board (hereinafter referred to as ''the respondent'' or ''the Board'') on 19-2-1958. He was promoted as Line Inspector in 1960 and was further promoted as Supervisor in 1968. Subsequently the post of Supervisor was re-designated as Additional Assistant Engineer. On 31-8-1976 the petitioner applied for leave to proceed to Haj pilgrimage. By memo dated 21-9-1976, he was granted leave with effect from 4-10-1976. The petitioner obtained the Haj pilgrimage Passport and proceeded to Mecca.

The petitioner''s case is that after returning from Haj pilgrimage, he fell ill and applied for extension of leave from time to time upto 14-4-1981; that on 15-4-1981 he asked for posting order; that the respondent did not respond to that letter; that on 17-11-1982 the respondent appointed a Divisional Engineer (Operations) as Enquiry Officer; that on 6-12-1982 the Enquiry Officer issued a charge memo to the petitioner on 16-12-1982; that the petitioner submitted his explanation to the charge memo; that on 18-1-1983 the Enquiry Officer issued a notice stating that an oral enquiry will be conducted on 31-1-1983 and that the Enquiry Officer submitted his report on 7-2-1983 holding that the petitioner is not guilty of grave charge but recommending stoppage of one increment. The petitioner gave joining report on 15-4-1984. Alleging that after receipt of the Enquiry Officer''s report, the respondent did not take any further action in the matter, he filed W.P. No. 9025 of 1986 seeking Writ of Mandamus directing the respondent to pass final orders in the enquiry.

On 26-11-1988 the respondent has set aside the enquiry report submited by the Divisional Engineer (Operations) and appointed a Superintending Engineer (Operations) to conduct enquiry into the very same charges. Challenging that action of the respondent, the petitioner filed W.P. No. 17121 of 1986 on the ground that the respondent has no jurisdiction or power to order a fresh enquiry in the absence of any fatal defect in the first enquiry.

The learned Counsel for the petitioner basing on these facts argued that the disciplinary authority is empowered either to accept the report of the Enquiry Officer or disagree with the findings recorded by the Enquiry Officer giving reasons in support of such disagreement and that the respondent has no power or authority to initiate a second disciplinary enquiry. At any rate, he submitted that the ground or reason for holding second enquiry is unsustainable and is contrary to law and hence the respondent has no jurisdiction or power to issue a memo dated 26-11-1986 initiating a fresh enquiry.

In support of the contention that initiation of successive enquiries by the disciplinary authority is illegal, the learned Counsel for the petitioner relied upon the decision of the Supreme Court in K.R. Deb Vs. The Collector of Central Excise, Shillong, wherein it is held that if there is some defect in the inquiry conducted by the Inquiry Officer, the Disciplinary Authority can direct the Inquiry Officer to conduct further inquiries in respect of that matter but it cannot direct a fresh inquiry to be conducted by some other officer. In that case the Inquiry Officer has not recorded the evidence of the prosecution witnesses during the course of the open inquiry. It is under those circumstances that the Supreme Court while observing that Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 does not contemplate of successiveha inquiries s held that if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. It is further observed that the Disciplinary Authority has enough power to reconsider the evidence itself and come to its own conclusion under Rule 9 of the above said Rules.

The learned Counsel for the petitioner also relied upon the decision in C.D. Prabhu v. D.C. South Kanara, 1969 SLR 362 wherein it is held that when once an enquiry was completed against the delinquent official, but no action was taken, the second enquiry started on same charges long afterwards is not permissible. According to the learned Judges if a disciplinary proceeding is commenced with respect to an accusation and that disciplinary proceeding has reached the stage when an enquiry has been completed, that disciplinary proceeding must be continued and must end either in the imposition of a punishment or in exoneration and that if disciplinary proceeding has not been terminated in that way, the commencement of another disciplinary proceedings with respect to those charges is plainly incompetent. In that case after the completion of the first enquiry a show cause notice was issued and the delinquent has submitted his representation in response to the show cause notice. But without passing final orders on the first enquiry report, a new disciplinary proceeding was commenced in obedience to the direction given by the Divisional Commissioner that the Assistant Commissioner should commence a second disciplinary proceeding. The learned Judges observed that the Divisional Commissioner who is not a disciplinary authority in respect of the petitioner could not initiate a second disciplinary enquiry. The second enquiry was quashed by the learned Judges holding that a specially empowered authority could be appointed only by a disciplinary authority and that the Divisional Commissioner who appointed the Assistant Commissioner to make the enquiry in that case on the second occasion was not the disciplinary authority. That decision has no application to the facts of this case because, it is not the case of the petitioner that the respondent who has initiated the second disciplinary enquiry is not the competent authority to initiate disciplinary action.

The Supreme Court in State of Assam and Another Vs. J.N. Roy Biswas, dealt with a case where the delinquent was exculpated after disciplinary enquiry and was reinstated in service. While holding that no rule of double jeopardy bars the Government from re-opening, the learned Judges held that the absence of power under a rule inhibits a second inquiry by the disciplinary authority after the delinquent had once been absolved. This decision has no application to the facts of this case because, the first Enquiry Officer''s report dated 7-2-1983 was not accepted by the disciplinary authority nor the delinquent was exculpated. On the other hand, the counter-affidavit filed by the respondent shows that when the said enquiry report was under consideration by the disciplinary authority fresh material came to light that the petitioner obtained a Passport concealing that he is the employee of the respondent and describing himself as a businessman. In the absence of the petitioner having been exculpated after enquiry and reinstated in service, it is always open to the respondent to re-open the proceedings.

Similarly the decision of our High Court in A. Gopala Rao v. Post Master General (A.P.), 1979 (2) SLR 370 also has no application because, in that case after enquiry it was found that the claim of the candidate was genuine and the earlier enquiry ended in favour of the petitioner therein by dropping the charges. Under those circumstances, the learned Judge held that a further enquiry cannot be conducted as it amounts to double jeopardy. In this case action not having been dropped, I hold that the second enquiry cannot be said to be barred.

The decision in Dwarkachand Vs. State of Rajasthan, is also to the effect that where the departmental enquiry resulted in exoneration, the second departmental enquiry on the same facts cannot be maintained.

The learned Counsel for the petitioner relied upon the decision in Mohana Rao v. D.I.G. of Police, 1975 (1) A.W.R. 289 wherein it is held that it is in cases where initiation of the enquiry is beset with a fatal defect that the disciplinary authority has power to order a new enquiry but not otherwise. The learned Judge held that a second enquiry cannot be initiated in that case because, the initiation of second enquiry is based on the same facts. I, therefore, agree with the submission made by the learned Counsel for the respondent that the decisions referred to in Dwarkachand v. State of Rajasthan (5 supra) and Mohana Rao v. D.I.G. of Police (6 supra) do not apply to the facts of this case because, in this case the second disciplinary enquiry is not initiated based upon the very same facts. On the other hand, as submitted by the learned Counsel for the respondent basing upon the allegation in the counter-affidavit, the respondent which is the disciplinary authority has secured fresh material against the delinquent which justifies the initiation of second disciplinary enquiry. I, therefore, hold that the initiation of a second disciplinary enquiry is not a bar when it is based upon fresh material. The learned Counsel for the respondent submitted that fresh material is available with the respondent that the petitioner has obtained a passport giving wrong information.

The learned Counsel for the petitioner argued that even if fresh material is available, the first Enquiry Officer should have been directed to conduct the enquiry but the appointment of a second Enquiry Officer is bad. It is not possible to give such a direction at this stage because, it is stated during the course of arguments that the first Enquiry Officer has since retired from service.

Another submission made by the learned Counsel for the petitioner is that the petitioner having been permitted to retire from service, the disciplinary enquiry cannot further survive. It is no doubt true that in State of Punjab Vs. Khemi Ram, it is observed that if a disciplinary enquiry cannot be concluded before the date of retirement of a Government servant, the course open to the Government is to pass an order of suspension and refuse to permit the public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. The respondent did not adopt such procedure but, on the other hand, retired the petitioner with effect from the after-noon of 30-11-1993 on his attaining superannuation of 58 years. That order of retirement dated 29-11-1993 is not in absolute terms but is without prejudice to the rights of the respondent-Board to finalise the departmental enquiry ordered against the petitioner and the final orders that might be passed therein and subject to orders of this Court in the writ petitions filed by the petitioner. When the order of retirement is subject to the above conditions, it is not open to the petitioner to contend that by virtue of his retirement no further action can be taken against him by the disciplinary authority. Rule 9(2) of the Andhra Pradesh Revised Pension Rules, 1980 provides that the departmental proceedings, if instituted while the Government servant was in service, after his retirement shall be deemed to be proceedings under Rule 9 of the said rules and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. Therefore, the respondent shall have in view the provisions of Rule 9(2) of the A.P. Revised Pension Rules in inflicting the punishment.

With the above observations, the writ petitions are dismissed. No costs.