IMPORTANT POINT
Where punishment of compulsory retirement from service was inflicted by appellate authority and not by disciplinary authority but right of employee to appeal was not prejudiced which he did file before authority and which was rejected punishment could not be described to be illegal.

Headnote:SERVICE LAW—Punishment of Compulsory retirement—Respondent working as Assistant Engineer was found guilty of misconduct by Enquiry Officer—Chairman of Board, admittedly the Appellate Authority, inflicted punishment of compulsory retirement from service—Disciplinary authority was the Member Secretary of Board—High Court Single Judge as well Division Bench set aside punishment holding that respondent was deprived of forum of appeal before chairman and prejudice was caused and same was violative of principles of natural justice —Appeal—Regulation 7(e) of APSE Board Employees Discipline Appeal Regulations 1990 provided that power vested in an authority could be exercised by superior authority—Question was whether respondent was deprived of his right of appeal—An appeal lay to the Board and Respondent did file petition before Board as mercy petition —Though styled as mercy petition, Board treated petition as appeal and rejected same—Order was not challenged and it attained finality—No prejudice was caused to respondent—Impugned judgment was liable to be set aside.
       Held : 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. (Para 10)
       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.(Para 11)
       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. (Para 13)

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).

2. 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.

3. 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".

4. 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.

5. 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.

6. 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, (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."

7. 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 author

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2006 Supreme(SC) 839

IMPORTANT POINTWhere punishment of compulsory retirement from service was inflicted by appellate authority and not by disciplinary authority but right of employee to appeal was not prejudiced which he did file before authority and which was rejected punishment could not be described to be illegal.

Cases Referred (2)

IMPORTANT POINT
Where punishment of compulsory retirement from service was inflicted by appellate authority and not by disciplinary authority but right of employee to appeal was not prejudiced which he did file before authority and which was rejected punishment could not be described to be illegal.