Writ petition challenging disciplinary authority's order to conduct further enquiry instead of de novo enquiry. Court held order valid under Rule 21(1) as initial non-compliance justified fresh inquiry. Petition dismissed.
Writ petition declared misconceived and dismissed. No costs.
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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)
MONDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN
PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and
THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR
WRIT PETITION NO : 759 of 2010
Between: B.V.Pydi Raju & Others
..... PETITIONERS
AND
V Additional Judicial First Class Magistrate, Rajahmundry, East Godavari District & Another.
.....RESPONDENTS
The Court made the following :
HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE MR JUSTICE VILAS V. AFZULPURKAR
WRIT PETITION No.759 OF 2010
ORDER: (Per Hon’ble Sri Justice Vilas V.Afzulpurkar)
This writ petition is filed questioning the action of the disciplinary authority-second respondent herein in ordering re-enquiry by order, dated 15.12.2009 with regard to disciplinary case No.10075 and based on that the notice issued by the first respondent, dated 19.12.2009 informing the petitioners that further enquiry will be conducted on 2.1.2010.
The impugned proceedings are questioned by the petitioners primarily on the ground that the disciplinary case instituted against the petitioners having been already enquired into by the enquiry officer and the enquiry officer having submitted a report, the second respondentdisciplinary authority had no jurisdiction to appoint the first respondent as another enquiry officer and entrust the disciplinary enquiry once again to him.
Learned counsel for the petitioners submits that under a charge memo issued by the second respondent, dated 1.12.2007 all the three petitioners are subjected to disciplinary enquiry on two charges and to enquire into the said charges, the second respondent had appointed the Principle Junior Civil Judge, Tuni as enquiry officer. The said enquiry officer submitted a report on 7.1.2009 along with his findings. However, the second respondent-disciplinary authority having not been satisfied with the report has issued further directions to the enquiry officer to
conduct fresh enquiry. Learned counsel further submits that the said enquiry is now entrusted to the first respondent and as such the proceedings of the disciplinary authority appointing the first respondent to enquire into the matter as well as the notice issued by the first respondent for further enquiry is questioned in this writ petition.
The learned standing counsel representing the respondents has filed separate counter affidavits on behalf of the first and second respondents.
In the counter affidavit filed by the second respondent it is contended that the disciplinary authority had given directions in the first instance to the enquiry officer to conduct enquiry by examining two more witnesses, but the said enquiry was not conducted in terms of the directions and later the said enquiry officer was not available as she has proceeded on maternity leave for four months from 20.7.2009, and therefore, the enquiry was entrusted to another enquiring officer i.e. Additional Judicial Magistrate of First Class, Tuni. However, the said officer was called for undergoing training at Andhra Pradesh Judicial Academy for the period from 3.10.2009 to 2.1.2010. Hence, the further enquiry is entrusted to first respondent, who is the Junior Civil Judge, Pithapuram, who is also the full additional charge for the post of Additional Judicial Magistrate of First Class, Tuni. It is also contended in the counter that the grievance of the petitioners is not justified as the present case is a case of further enquiry and not a case of re-enquiry by appointing fresh enquiry officer and being not a de novo enquiry, the disciplinary authority was fully justified in exercising his powers under Rule 21(1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ‘Rules, 1991’).
The first respondent has also filed a separate counter stating that
as per the directions of the second respondent-disciplinary authority, he has issued notices to the petitioners and they have appeared before him on 2.1.2010 and the enquiry as ordered has already progressed. The petitioners, however, sought certain documents such as copies of the First Information Report and Forensic Science Laboratory report. The first respondent states that these documents are not found in the file as they are part of the proceedings pending before the Additional Judicial Magistrate of First Class, Peddapuram and the first respondent has already taken steps to get the said documents from the said court. The first respondent also states that he has not denied for supply of copies of the documents, but he only required the petitioners to indicate the provision of law for supply of the documents sought for. It is also stated that in the event of denial of any such document, petitioners can always approach the disciplinary authority.
We have considered the contentions of the learned counsel appearing for the petitioners as well as the respondents in support of their respective case.
Learned counsel for the petitioners submits that the petitioners have not been supplied with any documents viz., the proceedings of the disciplinary authority wherein the enquiry is re-entrusted to the first respondent. He also submits that the petitioners made a specific request for additional documents as per their representation, dated 8.1.2010, in which they have sought the copy of the First Information Report and Additional Charge, if any, as well as Forensic Science Laboratory Report. The first respondent returned the said representation with the endorsement, dated 8.1.2010 to indicate the provision under which those documents are sought for. However, the present writ petition is filed questioning the jurisdiction of the second respondent in ordering re-enquiry as if it is a de novo enquiry by the
enquiry officer.
The counter affidavit filed by the second respondent makes it clear that after the report was furnished by the first enquiry officer on 7.1.2009, the disciplinary authority was of the view that the enquiry officer has not observed the mandatory and statutory rules under Rule 26 of the Rules, 1991 and not ascertained the information required and has not examined the necessary witnesses. The second respondent, therefore, gave specific directions to the enquiry officer and re-entrusted the enquiry to the said officer, however, without complying the said directions of the disciplinary authority, again the enquiry officer submitted a report on 27.6.2009. The disciplinary authority found, firstly, that the said report of the enquiry officer is not in accordance with the directions of the disciplinary authority, and secondly, the said enquiry officer has written in the second report that there is no need to examine any further witness, in spite of directions of the disciplinary authority that police officials and medical officers be examined as witnesses. The disciplinary authority, therefore, has exercised powers under Rule 21(1) of the Rules and required further enquiry to be conducted by the Additional Judicial First Class Magistrate, who was holding additional charge in view of the circumstances that the earlier enquiry officer has proceeded on maternity leave for four months from 20.7.2009. Further, the second enquiry officer to whom further enquiry was entrusted was also not available as he was required to undergo training at Andhra Pradesh Judicial Academy. It is in those circumstances, the first respondent was appointed to conduct further enquiry and as mentioned above, the first respondent has already conducted further enquiry on 2.1.2010.
Learned standing counsel placed reliance upon Rule 21(1) of the
Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, which reads thus:
“Rule 21. Action on the inquiry report:- (1) The Disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be.”
Having considered the aforesaid contentions, we are of the view that the present case on hand squarely falls within the parameters of Rule 21(1) of the Rules, as extracted above. Learned counsel for the petitioner is not justified in questioning the proceedings of the disciplinary authority in directing the enquiry officer to conduct further enquiry. The reliance placed by the learned counsel for the petitioner o n K.R.Deb v. Collector, Central Excise, Shillong (AIR 1971 SC 1447) is also completely misplaced as the facts of the case on hand inasmuch as the said decision arose when disciplinary authority had appointed fresh enquiry officer to conduct de novo enquiry after receiving the earlier reports from the enquiry officers. Even in the said decision, it was noticed that the Central Civil Services (Classification, Control and Appeal) Rules, 1957 did not contemplate successive enquiries and in those circumstances, the Supreme Court held that successive enquiries cannot be ordered by the disciplinary authority. However, the Supreme Court, in paragraph 13 of the judgment also recorded the view that if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of enquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. The present case, therefore, squarely falls within the said parameters inasmuch as the disciplinary authority’s earlier direction to examine further witnesses was not
complied with by the first enquiry officer and it is in those circumstances, the disciplinary authority has appointed the first respondent to conduct further enquiry as per the said directions. The proceedings of the second respondent ordering further enquiry, therefore, cannot be said to be either without jurisdiction or otherwise impermissible.
The other contention of the learned counsel for the petitioners that the petitioners have not been furnished the documents sought for etc. is concerned, the counter affidavit of the first respondent categorically states that there is no rejection of the request of the petitioners and the documents such as Forensic Science Laboratory Report being not available in the record. The first and second respondents, therefore, categorically stated that the petitioners will be furnished with the requisite documents at the appropriate time. The said grievance, therefore, will be addressed by the respondents 1 and 2 at the appropriate time.
In view of the above, the writ petition is clearly misconceived and is liable to be dismissed and is accordingly dismissed. No costs.
________________ A. GOPAL REDDY, J.
_______________________ FEBRUARY 15, 2010 VILAS V. AFZULPURKAR, J. Tsr.
3 issues framed by the court
Whether a disciplinary authority has the jurisdiction to order further enquiry under Rule 21(1) when the initial enquiry report did not comply with directions to examine witnesses.
Whether the appointment of a new enquiry officer for a further enquiry violates principles of natural justice.
Whether the failure of the enquiry officer to provide documents in advance vitiates the disciplinary inquiry.
Colour shows how this judgement treated each authority
K.R.Deb v. Collector, Central ExciseDistinguished¶30
K.R.Deb v. Collector, Central Excise, Shillong (AIR 1971 SC 1447) · Who else cites this
1 provisions across 1 enactments
B.V.Pydi Raju & Others
Additional Judicial First Class Magistrate, Rajahmundry
Second Respondent (Disciplinary Authority)
A. GOPAL REDDY
VILAS V. AFZULPURKAR
As recorded by the court registry
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