Allowed

Kannedhara Srinivasa Rao, v. The State of Andhra Pradesh

Andhra Pradesh HC24 Dec 2020WP/16709/2020

Case brief

AI extract

What is this about?

Challenge by a Section Officer of the State Public Service Commission to the order of compulsory retirement passed in departmental proceedings under the A.P. Civil Service Rules, 1991. The writ petition was allowed: since the enquiry was conducted by an officer other than the disciplinary authority, non-supply of the enquiry report breached Rule 23, and the penalty order was set aside with liberty

What did the court decide?

Final order proceedings dated 31.10.2018 set aside; disciplinary authority directed to serve a copy of the enquiry report with material papers, call for representation, and pass reasoned order(s) with

Kannedhara Srinivasa Rao, Vs The State of… — Service and Employment | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.16709 OF 2020

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ORDER :

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This writ petition under Article 226 of Constitution of India

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is filed seeking the following relief:

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“to issue an appropriate Writ Order or direction more particularly in the nature of Writ of MANDAMUS declaring the proceedings dated 31.10.2018 issued by the 2nd respondent as arbitrary illegal and capricious and consequently set aside the same by directing that the petitioner is eligible for all the benefits from 31.10.2018 including reinstatement and increments.”

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The facts of the case in nutshell are that, the petitioner joined the service of the second respondent/Andhra Pradesh Public Service Commission on 09.06.1995 as Junior Assistant through Group-II recruitment. Since then, he has been serving the Commission without any complaint from any corner whatsoever. Subsequently, he has been promoted to the post of Assistant Section Officer and later to the post of Section Officer in the year 2012. While so, on 26.08.2016, a show cause notice was served to the petitioner referring a representation dated 01.06.2016 and 24.08.2016 made by one Amarjit Kaur, Junior Assistant, outsourcing TSPSC, proposing to take action as per Rule 20 of the Andhra Pradesh Civil Service Rules, 1991 (for short ‘The Rules’) and called for reply within ten days from the receipt of show cause notice.

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In obedience to the show cause notice, reply was given by the petitioner on 26.10.2016 denying the material allegations. However, dissatisfied with the explanation submitted by the petitioner, the Disciplinary Authority initiated departmental

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proceedings against the petitioner and ultimately an Enquiry Officer was appointed and the petitioner was found guilty after fullfledged enquiry conducted under Rule 20 of the A.P. Civil Service Rules, 1991.

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After completion of enquiry, report was submitted by the Enquiry Officer to the Disciplinary Authority, without serving a copy of the report to this petitioner and final order was passed imposing major penalty of ‘Compulsory Retirement’ from service. The same is now challenged on the ground that, a copy of the report was not served to call for representation of this petitioner in terms of Rule 20 of the A.P. Civil Service Rules, 1991 and it is illegal and against the principles of natural justice.

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Sri Sai Gangadhar Chamarthy, learned counsel for the petitioner reiterated the contentions urged in the affidavit, whereas, learned Standing Counsel for second respondent/Andhra Pradesh Public Service Commission contended that, though copy was served, enquiry report is not required to be served on the petitioner. Therefore, failure to serve copy of the enquiry report is not a ground to question the final order passed by the disciplinary authority imposing major penalty of ‘Compulsory Retirement’ upon the petitioner and requested to dismiss the writ petition.

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Considering rival contentions, perusing the material available on record, the point that arises for consideration is:

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“Whether failure to serve copy of the enquiry report vitiates the penalty imposed upon the petitioner/employee. If so, whether the order passed by the disciplinary authority/second respondent is liable to be set-aside?”

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P O I N T :

Rule 20 of the Rules prescribes certain procedure to be followed for conducting enquiry and the disciplinary authority itself can inquire into the charges of misconduct or appoint a different inquiring officer. In the present case, the disciplinary authority did not conduct any inquiry, but appointed another officer as an Inquiry Officer, who in-turn conducted necessary enquiry, recorded finding against this petitioner, concluded and submitted report, in compliance of Rule 20 of the Rules. When once the inquiry is completed by the disciplinary authority or on receipt of enquiry report from the inquiry officer by the disciplinary authority, the disciplinary authority can pass appropriate order of punishment by following Rule 23 of the Rules. But, there is a distinction in the procedure to be followed when the disciplinary authority itself is an inquiry officer to conduct inquiry and appointing an inquiry officer by the disciplinary authority and submission of report.

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According to 23 of the Rules, i.e. Communication of orders; Orders made by the disciplinary authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiry, if any, held by the disciplinary authority and a copy of its findings on each article of charge, or, where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority and a statement of the findings of the disciplinary authority together with brief reasons for its disagreement, if any, with the findings of the inquiring authority (unless they have already been supplied to him) and also a copy of the advice, if any, given by the Commission and, where the disciplinary authority has not accepted the advice of the

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Commission, a brief statement of the reasons for such nonacceptance.

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Therefore, a copy of the inquiry report as submitted by the inquiry officer shall be sent to the delinquent officer, calling for his representation, if inquiry was conducted by an inquiry officer appointed by the disciplinary authority. An identical question came up before the Apex Court in Union of India v. Mohd. Ramzan Khan¹ , where the Court has considered the consequences of failure to supply the inquiry report. The Court held that, a delinquent is entitled to the copy of the report when inquiry is conducted by the Inquiry officer but not when conducted by the disciplinary authority himself. Inquiries handled by Disciplinary Authority and Inquiry Officer constitute two different groups. The Apex Court held this classification as reasonable and not violative of Article 14 of the Constitution of India. The Apex Court further held that, where the disciplinary authority himself is the Inquiry Officer there is no need to supply copy of report. He becomes the first assessing authority to consider the evidence directly for finding out whether the first assessing authority to consider the evidence directly for finding out whether the delinquent is guilty and liable to be punished. Thus while the delinquent is not entitled to report when the inquiry is conducted by the disciplinary authority, he is entitled to copy of report when inquiry is conducted by the Inquiry Officer. This does not however mean that it would be violative of Article 14 on ground that in one set of cases arising out of disciplinary proceedings furnishing of the copy of the inquiry report would be insisted upon while in the other it would not be. Even otherwise, the inquiries which are directly handled by

1 AIR 1991 SC 471

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the Disciplinary authority and those which are allowed to be handled by the Inquiry Officer can easily be classified in two separate groups; one, where there is no inquiry report on account of the fact that the disciplinary authority is the Inquiry Officer and inquiries where there is a report on account of the fact that an officer other than the disciplinary authority has been constituted as the Inquiry Officer. That itself would be a reasonable classification keeping away the application of Article 14 of the Constitution. As such, it is clear that serving of copy of inquiry report depends upon the person who conducted inquiry. If the disciplinary authority itself is inquiry officer, question of communicating inquiry report to the delinquent employee does not arise. If, it is conducted by any other person other than the disciplinary authority, a report is required to be served on the delinquent employee.

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The law declared by the Courts before the judgment of Apex Court in Union of India v. Mohd. Ramzan Khan (referred supra) is different. The earlier view of the Courts was that, when an enquiry was conducted and delinquent employee is found guilty, the report shall be communicated to the delinquent officer or employee. But, subsequent to the judgment of Union of India v. Mohd. Ramzan Khan (referred supra), it depends upon the person who conducted inquiry. The same question came up for consideration in R.P. Bhatt v. Union of India² , wherein it was observed that, while considering an appeal against an order enhancing any penalty under the Central Civil Services (Classification, Control and Appeal) Rules, requirements of Rule

2 (1986) 2 SCC 651

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27(2) must be complied with and consideration would mean a finding of satisfaction as to whether the procedure laid down in the Rules had been complied with and if not complied with, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice.

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In Ram Chander v. Union of India & ors³ where the decision in R.P. Bhatt v. Union of India (supra) was followed, and the Court held that, copy of the inquiry report shall be furnished to the delinquent employee in terms of Section 27(2) and in the event of failure, it would vitiate the entire proceedings.

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In State of U.P v. Abhai Kishore Masta⁴ , the Supreme

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Court again held that non-supply of report does not vitiate the inquiry.

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In N.T.C (Wbab and O) Ltd and another v. Anjan K. Saha⁵ ,

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a similar question came up for consideration about non-supply of inquiry report, in any case, non-compliance thereof cannot be held to be a more vitiating factor than non-supply of enquiry report. If the Constitution Bench of Apex Court in cases of non-supply of enquiry report directs the procedure to be adopted by allowing the employer to restart the enquiry from the stage of supply of enquiry report without reinstating the employee, why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty. When the court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving

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opportunity against the proposed penalty can also be directed to be

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3 (1986) 3 S.C.C. 103

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4 1 995 SCC (1) 336

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5 AIR 2004 SC 4255

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taken. After the afresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of Clause 14(4)(c) of the Model Standing Order Rules. Consequential order, if any passed, shall abide the final result of the proceedings. At this stage, it is relevant to the judgment of the Supreme Court in M anaging Director, ECIL,

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Hyderabad & Ors. v. B. Karunakar & Or s⁶ , the Apex Court observed that, if the employee is cleared of the charges and is reinstated, the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential benefits and it holds the field as on date. In the said judgment, the Apex Court adopted the Doctrine of Prejudice and concluded that non-supply of the report of the Inquiry Officer, if causes prejudice, which is based on pleadings and proof, then the Court can setaside the order imposing penalty, otherwise the Court can interfere with such order.

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Later view of the Apex Court in Management of State Bank of India v. Industrial Tribunal-I⁷ where the question was opportunity to show prejudice caused due to non-supply of enquiry report and the stage at which such opportunity is to be provided, came up for consideration. In the facts of the above judgment, the Apex Court considered the judgments of M anaging Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Or s (referred supra) and Union of India v. Mohd. Ramzan Khan (referred supra) and drawn distinction between punishment of ‘dismissal’ and ‘removal’ and finally concluded that, where the punishment is other than

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6 (1993) 4 SCC 727

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7 2006 (1) ALT 39

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the one of dismissal, removal or discharge from service, the employee is not required to show that prejudice has been caused and that the judgment in M anaging Director, ECIL, Hyderabad &

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Ors. v. B. Karunakar & Or s (referred supra) applies only to cases where the services of an employee were terminated as a measure of punishment. Acceptance of the conclusions in Sri Ahmed Mohiddin v. The State Bank of Hyderaba d⁸ would result in an anomalous situation. While a person, whose services have been terminated as a measure of punishment would be required to establish that prejudice has been caused to him, before the punishment imposed on him is set aside, an employee who has received lesser punishment would not, and even if no prejudice is caused on account of his not being furnished a copy of the enquiry report, would be entitled to have the order of punishment set aside. The judgment of the Supreme Court in M anaging Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Or s (referred supra) can neither be read in such a manner nor can the law laid down therein be so restricted. In any event, in view of the subsequent judgments of the Supreme Court in S.K. Singh v. Central Bank of Indi a⁹ , O riental Insurance Co., Ltd. v. S. Balakrishna n¹⁰ , N TC (WBAB & O) Ltd. v. Anja n. K. Saha (referred supra), which require an employee to show that prejudice was caused to him on account of non-supply of the enquiry report before the punishment imposed calls for interference, in S ri Ahmed Mohiddin v. The State Bank of Hyderaba d (referred supra) is no longer good law.

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8 1994 (1) ALT 609

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9 1997 (1) LLJ 537 (SC)

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10 JT 2001 (4) SC 417

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In Union of India v. R.P. Singh¹¹ , an identical issue came up for consideration and the Constitutional Bench of Supreme Court held that, non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in my considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence.

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In O riental Insurance Co., Ltd. v. S. Balakrishnan (referred supra) and Divisional Manager, Plantation Division v. Munnu Barrick and others¹² , the Apex Court held that nonsupply of enquiry report could not have vitiated the proceedings and it does not cause any prejudice.

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In Haryana Financial Corporation v. Kailash Chandra

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Ahuja¹³ , the Division Bench of the Apex Court considered the consequences of non-supply of inquiry report and after considering various judgments from different countries with regard to conduct of enquiry and failure to furnish copy of the report, the Supreme Court after taking into consideration the judgments in Union of India v. Mohd. Ramzan Khan (referred supra) and three Judge Bench decision of the Apex Court in K ailash Chander Asthana v. State of U.P¹⁴ , held that non-supply of the report would not `ipso facto' vitiate the order of punishment, in the absence of prejudice

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11 (2014) 7 SCC 340

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12 (2005) 2 SCC 237

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13 (2008) 9 SCC 31

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14 (1988) 3 SCC 600

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to the delinquent. The Constitutional Bench also referred to the

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judgment in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors (referred supra), and observed that the basic question of law which arose in the matters was whether the report of the Inquiry Officer appointed by the Disciplinary Authority to hold an inquiry into the charges against the delinquent employee was required to be furnished to the employee to enable him to make representation to the Disciplinary Authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. On the basis of the above fundamental issue, certain other incidental questions were also raised by the Constitution Bench which included the effect of non-supply of Inquiry Officer's report. So far as the supply of report of the Inquiry Officer is concerned, it was held by the Constitution Bench that the delinquent employee had a right to receive the Inquiry Officer's report and a denial thereof would constitute breach of natural justice. Speaking for the majority, Sawant J. stated as follows:

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"Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice".

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(emphasis supplied)

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In the same judgment, the majority stated; “The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such

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cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an `unnatural expansion of natural justice' which in itself is antithetical to justice".

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Thus, to set-aside such punishment and reinstate the employee, prejudice must be pleaded and shown, otherwise, the Court cannot set-aside the entire final order imposing sentence. The Division Bench of the Supreme Court in Haryana Financial

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Corporation v. Kailash Chandra Ahuja (referred supra), culled

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out the following principles:

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“It is explicitly clear that the doctrine of natural justice requires supply of a copy of the Inquiry Officer's report to the delinquent if such Inquiry Officer is other than the Disciplinary Authority. It is also clear that non-supply of report of Inquiry Officer is in the breach of natural justice. But it is equally clear that failure to supply a report of Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent-employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside.”

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Keeping in view the above judgment, the Division Bench of the Supreme Court adverted to the settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem ("Hear the other side"). But it is equally well settled that the concept `natural justice' is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the strait-jacket of a rigid formula.

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In Russel v. Duke of Norfolk¹⁵ Tucker, L.J. stated as follows:

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"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with, and so forth".

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In the oft-quoted passage from Byrne v. Kinematograph Renters Society¹⁶ , Lord Harman enunciated;

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15 (1949) 1 AllER 109 : 65 TLR 225

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16 (1958) 2 AllER 579

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"What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more".

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In the leading case of A.K. Kraipak v. Union of India¹⁷ ,

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Hegde, J. stated;

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"What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case".

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Again, in R.S. Dass v. Union of India¹⁸ , the Apex Court

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said:-

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"It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case".

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In the celebrated decision of Ridge v. Baldwin¹⁹ , it was

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contended that an opportunity of hearing to the delinquent would

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have served no purpose. Negativing the contention, however, Lord Reid stated;

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"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse".

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17 (1969) 2 SCC 262

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18 1986 Supp SCC 617

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19 1964 AC 40 : (1963) 2 AllER 66

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In S.L. Kapoor v. Jagmohan²⁰ , rejecting the argument that observance of natural justice would have made no difference, this Court said;

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"The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It 'll comes from a person who has denied justice that the person who has been denied justice is not prejudiced".

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After examining the entire law on non-compliance of principles of natural justice, the Apex Court concluded that, in the absence of any finding as to the prejudice caused to the delinquent employee, the observation that the prejudice is writ large is not sufficient, in view of the law declared by the Constitutional Bench in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Or s (referred supra), and accordingly set-aide the order of the High Court.

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Similarly, in Santosh Kumar Pandey v. Pradeshiya Industrial & Investment Corporation of U.P Limited²¹ , the Apex Court was of the opinion that, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the

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20 (1980) 4 SCC 379

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21 Appeal (civil) No.3251 of 2008 dated 02.05.2008

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Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/ management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish

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the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

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If, these principles are applied to the present facts of the case, it is for the petitioner to establish that, whether any prejudice is caused on account of non-supply of inquiry report.

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However, two conflicting views are expressed by the Supreme Court in M anaging Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Or s (referred supra) and followed in later judgment of the Apex Court in Haryana Financial Corporation v. Kailash Chandra Ahuja (referred supra). But, in Santosh Kumar Pandey v. Pradeshiya Industrial & Investment Corporation of U.P Limited (referred supra), there is a slight difference in the law. However, the view expressed in all the judgments is one and the same.

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In the present case, the report was admittedly not served to the petitioner and the inquiry was conducted by the inquiring officer other than the disciplinary authority. In such situation, it is the obligation of the disciplinary authority to furnish a copy of the inquiry report to the employee/petitioner herein in view of the mandate under Rule 23 of the Rules.

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The Andhra Pradesh Civil Services (Conduct) Rules, 1991, are the special rules applicable to the employees of the State Government. When the rule mandated to furnish a copy of the report if inquiry was conducted by an officer other than the disciplinary authority and submit a report to the disciplinary

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authority, it is known principle of law that special rules will prevail over the general rules and the State is bound to comply in letter in spirit.

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I t is a well settled law that, the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9^th Edition). This principle is expressed in the maxim generalia specialibus non derogant .

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In R.S.Raghunath versus State of Karnataka and another²² , the Supreme Court held that the special law prevails over general law with one exception and that is a later general law prevails over earlier special law, if it clearly indicates the intention to supersede the special law.

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In St. Stephen’s College v. University of Delhi²³ the Apex

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Court held as follows:

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“140. …The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated.

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The Supreme Court of Canada in, Lalonde v Sun Life²⁴ , Justice Gonthier in his own words held that, “This is an appropriate case in which to apply the maxim generalia specialibus non derogant and give precedence to the special Act. The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the

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22 (1992) 1 SCC 335

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23 (1992) 1 SCC 558 24 [2002] I.L.R. 1-4106 (O.S.C.J.)

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special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject-matter of the rule from the general Act."

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Hence, at this stage, the Court need not examine the prejudice going into deep, but on the ground of violation of Rule 23 of the Rules, the penalty imposed against this petitioner is liable to be set-aside while permitting the disciplinary authority to supply a copy of the report to the petitioner and call for written representation, imposing the punishment after affording an opportunity and pass appropriate order.

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Since the petitioner pleaded and established prima facie prejudice, in fact, prejudice is a question of fact and it varies from case to case and depends upon the circumstances of each case. In any view of the matter, the contention of learned counsel for the petitioner that, even if no finding recorded by the inquiring officer is communicated to this petitioner, the petitioner was kept totally in darkness, as to whether the inquiry officer recorded any finding as to his guilt or found him not guilty for the charges. Therefore, the petitioner is not aware anything about the findings arrived by the inquiring officer and reasons thereof, as such, much prejudice is caused to him and if for any reason, the copy of inquiry report is furnished to him, he would have submitted his representation appropriately, so as to consider the case while passing a final order, imposing punishment if necessary. Instead of following the procedure, the respondents violated the Rules and passed the impugned order.

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The contention of the learned Standing Counsel for General Administration Department that, no copy of the enquiry report

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need be furnished is devoid of merit, as it is mandatory procedure prescribed under Rule 23 of the Rules. Mere furnishing copies of the various other documents without furnishing copy of the report is in compliance of mandatory requirement under Rule 23 of the Rules. Hence, the final order passed by the second respondent is hereby set-aside, while directing the disciplinary authority to serve a copy of the enquiry report along with the other material papers, as mandated under Rule 23 of the Rules, on the delinquent officer/petitioner herein, calling for a representation from him under Rule 21, and pass appropriate reasoned order(s) in accordance with law.

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In the result, writ petition is allowed, setting aside the final order proceedings dated 31.10.2018, while directing the disciplinary authority to serve a copy of the enquiry report along with the other material papers, as mandated under Rule 23 of the Rules, on the delinquent officer/petitioner herein, calling for a representation, and pass appropriate reasoned order(s) in accordance with law, within two months from the date of receipt of this order.

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Consequently, miscellaneous petitions pending, if any, shall stand closed.

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_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

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Date:24.12.2020 SP

Kannedhara Srinivasa Rao, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Kannedhara Srinivasa Rao, v. The State of Andhra Pradesh

Case brief

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