Abdul Shukoor, W.G.District Vs Eastern Power Distribution, Vis. & 2 Others

Both these writ petitions challenge respective enquiry reports followed by show-cause notice issued by the disciplinary authority proposing punishment of removal from service to be illegal, arbitrary and without jurisdiction and consequently to set aside the same.

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2. Since facts leading to filing of these two writ petitions are more or less similar and common submissions have been made, the same are disposed of by common order.

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3. (a) Petitioners claim to be appointed as lower division

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clerks with respondent Corporation. Their appointments were

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made in pursuance to implementation of scheme under B.P.Ms.No.36, dated 18.05.1997. The said scheme envisaged that persons who have worked with any of the contractors’ executing works for the Corporation before the cut-off date of 18.05.1997 were made eligible to be appointed as LDCs. Accordingly, in pursuance to notification dated 22.09.2000, the selections were undertaken and petitioners came to be selected. Subsequently, the respondents have issued show-cause notices dated 20.08.2005 alleging that the certificates produced by petitioners were found to be not genuine to claim eligibility in terms of B.P.Ms.No.36. Therefore, petitioners were called upon to submit explanation as to why they should not be removed from service.

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(b) Assailing the same, petitioners preferred W.P. No.19361 of 2005 and this Court by orders dated 01.09.2025 inter alia directing that the notice dated 20.08.2005 to be treated as charge sheet and in turn, the petitioners to submit explanation to the same and the respondent thereafter to conduct departmental enquiry before inflicting any punishment much less that of removal from service and that the said procedure to be completed

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within a period of three months from the date of receipt of copy of the order.

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(c) In pursuance to the said directions, the 3^rd respondent stated to have been appointed as Enquiry Officer in terms of Regulation 10(2)(a) of APSEB Employees Discipline and Appeal Regulations. After enquiry, he stated to have submitted enquiry report to the disciplinary authority i.e., 2^nd respondent, who in turn issued show-cause notice, dated 21.07.2009, annexing the report and called upon petitioners to submit explanation to the proposed punishment of dismissal from service. In both these writ petitions, the enquiry report even dated 27.07.2006 was furnished to respective petitioners along with show-cause notices, even dated 21.07.2009, which are under challenge in these writ petitions.

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(d) Initially, this Court has passed interim orders dated 06.08.2009 directing respondents to continue the petitioners in service without reference to the impugned enquiry report and show-cause notices, for a period of three weeks. The said order, however, was not extended later. Immediately, the respondents have filed counter-affidavits in both these writ petitions, which are

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on same lines opposing the writ petitions, along with application to vacate the interim orders.

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(e) Despite the interim orders not being in force after the initial three weeks, neither petitioners submitted explanation to the show-cause notices nor the disciplinary proceedings were continued with and got concluded. However, the 2^nd respondent has issued memo dated 17.01.2026 calling upon petitioners to submit explanation enabling to conclude the disciplinary proceedings. The said proceedings eventually came to be suspended by this Court by interim order dated 03.01.2026 in I.A. Nos.1 and 2 of 2026.

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4. Heard Sri Y.V.Anil Kumar, learned counsel for petitioners and Ms.Kothapalli Aishwarya Chowdary, learned counsel, representing Sri V.V.Satish, learned standing counsel for the respondents.

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5. Learned counsel for petitioners has raised following three contentions:

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a) that enquiry officer himself has issued charge memo, which is in violation of Regulation 10(2) of APSEB Employees Discipline and Appeal Regulations, therefore, there is clear

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jurisdictional error in proceeding with disciplinary action. Further, when there is apparent jurisdictional error, it is no bar to invoke jurisdiction of this Court under Article 226 to challenge the very issuance of show-cause notice.

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b) that enquiry officer also acted as Presiding Officer and even went to the extent of cross-examining the contractor, therefore, manner in which enquiry was conducted and issuance of the enquiry report are vitiated.

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c) that the impugned show-cause notices issued by 2^nd respondent predetermined the punishment of removal from service, which is impermissible.

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6. In support of aforesaid contentions, reliance has been placed on following judgments:

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Division Bench Judgment of High Court of Allahabad in State of U.P. Thru Principal Secretary, Excise, LKO and two others v. Bharat Ratna Ashok¹ .

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Division Bench order of High Court of Andhra Pradesh at Hyderabad in SBQ Steels Limited., Chennai v.

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1 Judgment in W.A. No.2695 of 2025, dated 17.03.2025

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Commissioner of Customs, Central Excise and Service Tax, Guntur Commissionerate, Guntur² .

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Judgment of Hon’ble Apex Court in ORYX Fisheries Private Limited v. Union of India and others³ .

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7. (a) Per contra, learned counsel appearing for respondent Corporation has contended that writ petition cannot be maintained challenging show-cause notice inasmuch as there is no adverse order as such staring at petitioners giving rise to cause of action. Further, the disciplinary proceedings are being conducted in pursuance to the directions issued by this Court in W.P. No.19361 of 2005, and in fact, there is a specific direction to conclude the disciplinary proceedings within three months and therefore, petitioners cannot stall the continuation of these proceedings.

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(b) The mention of proposed punishment in show-cause notices is in accordance with Regulation 10(2)(c) of Regulations, therefore, the same cannot be found fault with.

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(c) In support of aforesaid submissions, she places reliance on following judgments:

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2 2012 SCC OnLine AP 857 = (2013) 2 ALD 158

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3 (2010) 13 SCC 427

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Judgment of Hon’ble Apex Court in Special Director and another v. Mohd. Ghulam Ghouse and another⁴ .

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Judgment of Hon’ble Apex Court in Secretary, Ministry of Defence and others v. Prabhash Chandra Mirdha⁵ .

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8. I have gone through the record and given anxious consideration to the submissions made above.

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9. The genesis for initiation of present proceedings emanated when petitioners and other employees who were appointed as Lower Division Clerks sought for regularization of their services, in which process, the certificates that were produced by respective employees claiming eligibility in terms of B.P.Ms.No.36, dated 18.05.1997, were doubted to be not genuine. In that process, the respondents have proposed to conduct enquiry into the eligibility of candidates and the genuinity of certificates produced by them for the purpose of considering their respective cases for regularization.

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10. At that juncture, the respondents have issued notices dated 20.08.2005 to even the writ petitioners as well, pointing out that the certificates so produced by them were found not to be

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4 (2004) 3 SCC 440

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5 (2012) 11 SCC 565

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genuine. Therefore, they were called upon to submit explanation. In that context, petitioners preferred W.P. No.19361 of 2005. This Court disposed of the same by order dated 01.09.2005 and it is opt to notice following passage from the said order:

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“Though an attempt is made to convince this Court as to the genuinity to the claim of the petitioners, it is neither permissible nor necessary to deal with the same at this stage. As on today, the petitioners are full members of the service with the respondents. Though it is plausible to argue that the present enquiry is in relation to the very entitlement of the petitioners to be regularized, the fact remains that the proposed penalty can be imposed only after conducting a departmental enquiry. This, in turn, has to be preceded by a charge-sheet. The outcome of the enquiry conducted on 08.04.2025, may, at the most, constitute the basis for initiation of proceedings.

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For the foregoing reasons, the writ petition is disposed of directing that the memo dated 20.08.2005 shall be treated as a charge-sheet and depending on the nature of the explanation that the petitioners may submit, the respondents shall conduct a departmental enquiry, if they intend to inflict the punishment of removal from service. This procedure shall be completed, within a period of three months from the date of receipt of a copy of this order.”

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11. In pursuance to aforesaid directions, Divisional Engineer came to be appointed as Enquiry Officer and after conducting enquiry and submitting report, which held that the charges against petitioners were proved, the disciplinary authority issued impugned show-cause notices calling upon petitioners to submit explanation as to why they should not be imposed with major penalty of dismissal from service.

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12. In the aforesaid background, the contentions raised by learned counsel for petitioner require to be tested.

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13. It is now fairly well settled that writ court may not exercise its discretionary jurisdiction in entertaining writ petition questioning a notice to show cause unless the same appears to be without jurisdiction. Likewise, even writ petition does not lie against a charge sheet or show-cause notice inasmuch as the same does not give rise to any cause of action and amounts to adverse order effecting rights of parties. In Prabhash Chandra Mirdha⁵ , the Hon’ble Apex Court held as under:

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“10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of

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any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943], Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .)

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12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings

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are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.”

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14. Learned counsel for petitioners tried to contend that the person issuing charge memo as well as enquiry officer being one and the same and further that the enquiry officer also tried to cross-examine the witness (contractor) in a way acted as Presenting Officer, therefore, the entire procedure adopted in conducting enquiry was not only vitiated, but there is clear jurisdictional flaw. Added to that, the disciplinary authority in the show-cause notice has clearly without mincing any words, proposed the action of dismissal from service, which is clearly predetermined, therefore, these cases clearly fall under exception for exercising jurisdiction under Article 226 of Constitution of India.

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15. Perusal of the previous order in W.P. No.19361 of 2005 and the conclusions drawn therein clearly dispel the aforesaid argument on jurisdiction. When the respondents initially sought to

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issue proceedings dated 20.08.2005 proposing action against the petitioners, this Court has directed that such notice be treated as a charge sheet and the petitioners were allowed to submit explanation to the same and thereafter, the respondents to conduct departmental enquiry, which to be completed within a period of three months. Therefore, it is no gain to say that the charge memo was issued by the very enquiry officer himself. For all purposes, earlier memo dated 20.08.2005 was supposed to be construed as charge memo and enquiry has been directed to be conducted by the 3^rd respondent as Enquiry Officer, who is superior to the delinquent employees. The procedure contemplated under Regulation 10(2), therefore, has clearly been complied with in its true spirit. This Court does not see any jurisdictional error as such in conducting the disciplinary proceedings.

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16. The other contention with regard to enquiry officer acting as presenting officer and trying to cross-examine one of the witnesses, in the opinion of this Court, such stand on merits of the matter can always be raised before the disciplinary authority and the same would not go to the route of the matter to construe the same to be jurisdictional flaw. Insofar as the last contention that

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the show-cause notice clearly pre-determines the proposed punishment, rendering enquiry mere formality, to answer the same, reference is made to Regulation 10(2)(c) of AP Transco/Discoms Employees Discipline and Appeal Regulations, which reads thus:

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“ Regulation 10(2)(c):

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After the authority competent to impose the penalty mentioned in clause (a) has arrived at a provisional conclusion in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report of the enquiry officer and be given a reasonable opportunity of making representation, within a reasonable time not ordinarily exceeding one month, on the penalty proposed. Any representation made in this behalf by the person charged shall be duly taken into consideration by the competent authority before final orders are passed.

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Provided that such representation shall be based only on the evidence adduced during the enquiry referred to in clause (a).”

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17. A plain reading of aforesaid clause would go to show that the disciplinary authority has to first arrive at provisional conclusion in regard to penalty to be imposed and simultaneously to supply copy of the enquiry report enabling the delinquent to submit explanation on the proposed penalty. When the

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Regulation specifically envisage for indicating the proposed penalty, the disciplinary authority rightly so indicated in the showcause notice the proposed punishment which is in accordance with the Regulation. The judgments that have been cited by the learned counsel for petitioners really do not consider a scenario where there exists a specific regulation providing for indicating the penalty proposed. Therefore, the same would have no application to facts of present case.

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18. The judgment cited by learned counsel for petitioners in Oryxx Fisheries Private Limited³ to buttress his argument that if the content of show-cause notice sounded predetermined mind in proposing punishment, issuance of such show-cause notice would be an empty formality, in that case, the Hon’ble Apex Court was dealing with case relating to cancellation of registration. That was a case where show-cause notice was issued proposing disciplinary action to which the response/explanation also came to be submitted, however, by way of non-speaking order, without assigning any reasons, the registration came to be cancelled and in that context, the Court held that the authority was predetermined. The present case rests on completely different

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factual scenario. Therefore, aforesaid judgment would have no application to the facts of the present case.

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19. In view of aforesaid observations and conclusions drawn

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by this Court, these writ petitions, which merely challenge the show-cause notices, are not maintainable.

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20. This Court in W.P. No.19361 of 2005, though directed respondents to conclude enquiry within a period of three months and that in the present case, the interim stay was apparently only for a short span of three weeks, the disciplinary proceedings were never concluded. Therefore, the petitioners are directed to submit explanation within two weeks from today and thereafter, the respondents are directed to conclude the disciplinary proceedings within a period of six weeks.

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21. Accordingly, these writ petitions stand dismissed with above observations. No costs.

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As a sequel, miscellaneous petitions pending in this case, if any, shall stand closed.

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CHALLA GUNARANJAN, J

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ss

Abdul Shukoor, W.G.District v. Eastern Power Distribution, Vis. & 2 Others

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Abdul Shukoor, W.G.District v. Eastern Power Distribution, Vis. & 2 Others

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