2008 Supreme(AP) 347
Andhra Pradesh High Court
L. NARASIMHA REDDY, J.
Prof. M. Vivekananda Murthy - Appellant
Versus
Government of Andhra Pradesh, rep. by the Principal Secretary to Government, Higher Education Department, Hyderabad and others - Respondents
Writ Petition No. 21166 of 2007
Decided on 10-6-2008.
Mr. N. Vidya Prasad, Counsel for the Petitioner.
G.P. for Education, for Respondent NO.1.
Mr. M.V. Rajaram, S.C. for Andhra University for Respondent Nos. 2 to 5.
Headnote:SERVICES:- An employee had not raised his objection to the non-compliance of procedure looses the right to raise them at a subsequent stge of judicial scrutiny. Where the individual rights are concerned unlike infraction of public law right, principles of waiver is applicable. Similarly when the infraction is a mere procedural requirement, but not a substantive right, the principle of waiver applies. This is also the case where the petitioner had not suffered any prejudice due to the deviation of procedural requirement, or where the petitioner fails to any major irregularity and arbitrariness that has crept into due to the deviation.
The petitioner was appointed as Lecturer in the Andhra University, in the Department of Statistics, in the year 1985. He earned superior positions of, Associate Professor, in the year 1990, and of Professor, in the year 1998.
2. The Ministry of Health and Family Welfare, Government of India, established Population Research Center (PRC) in the Andhra University, in the year 1987. The Vice-Chancellor of the University appointed the petitioner as the Honorary Director of the PRC. After about eight years, the petitioner was replaced by the 3rd respondent as Honorary Director, vide proceedings dated 14-9-2005.
3. The Executive Council of the University passed a resolution dated 16-12-2005, to appoint an Inquiry Officer, to examine the various allegations made against the petitioner in relation to his functioning as Honorary Director. Consequential proceedings were issued by the Vice-Chancellor, on 21-2-2006, and a retired Judge of this Court was appointed as an Inquiry Officer n 10-2-2006. The Inquiry Officer issued proceedings dated 23-3-2006, framing charges and stating the background facts. The petitioner submitted his explanation on 12-6-2006. The Inquiry Officer submitted a report on 1-3-2007. The same was placed before the Executive Council, which in turn, passed a resolution dated 9-3-2007, issuing notice to the petitioner as to why suitable disciplinary action shall not be taken against him. The petitioner submitted his explanation. On a consideration of the same, the University issued proceedings dated 9-4-2007, dismissing the petitioner from service.
4. Initially, the petitioner approached this Court by filing W. P. No. 9137 of 2007, challenging the order of dismissal. Taking note of the fact that there is a remedy of appeal to the Chancellor, this Court disposed of the writ petition, leaving it open to the petitioner to avail the remedy of appeal. The appeal was rejected and the same was communicated to the petitioner, vide letter dated 10-9-2007, addressed by the 1st respondent. Hence, this writ petition.
5. The petitioner had raised several grounds in his challenge, to the order of dismissal. They range from the legality of the framing of charges by the Inquiry Officer to the correctness of the findings recorded against him. It is also his case that neither the University nor the appellate authority have examined the matter objectively.
6. The University filed a detailed counter affidavit. It is stated that the petitioner did not raise any objection as to the framing of charges by the Inquiry Officer in the disciplinary proceedings, and he cannot be permitted to raise the same at this stage. Reference is made to the content of various charges, as well as the findings thereon. It is ultimately pleaded that the order of dismissal does not suffer from any legal or factual infirmity.
7. Sri P.V.S.S. Acharyulu, learned counsel for the petitioner submits that, be it, under the relevant Service Regulations of the University, or the general principles of Service Law, the necessity to appoint an inquiry Officer would arise, only when the Appointing Authority issues a show cause notice and on a consideration of reply submitted by the delinquent employee, it decides to proceed with the matter, by conducting a departmental inquiry. He submits that appointment of an Inquiry Officer at the threshold, and empowering him to frame the charges is opposed to settled principles of law. He advanced extensive arguments, in relation to the proceedings before the inquiry Officer, and submits that the petitioner was not given a fair opportunity. Learned counsel further submits that the Inquiry Officer recorded findings on the basis of assumptions and guess work, and in that view of the matter, the order of dismissal passed against the petitioner is liable to be set aside.
8. Sri M.V. Raja Ram, learned Standing Counsel for the Andhra University, on the other hand, submits that the Service Conditions of the employees are governed by the relevan