O R D E R
Leave grated. Heard the counsel for the parties.
This appeal is directed against the judgement of a Division Bench of the Andhra Pradesh High Court disposing of the writ appeal with certain directions. The writ petition was dismissed by the learned Single Judge.
The respondent-writ petitioner was working as a Development Officer under the Appellant-Board. On 25.5.87, as many as 49 charges were framed and served upon him and a disciplinary enquiry held. The Enquiry Officer found 29 out of 49 charges proved. A show-cause notice dated 4.5.88 was issued calling upon the respondent to show-cause why he should not be dismissed from service. After considering his explanation, he was dismissed from service by proceedings dated 25.5.88. The respondent challenged the said order by way of writ petition. One of the contention urged before the learned Single Judge was that the order of suspension as well as order of dismissal was not passed by the Chairman but by some other incompetent authority. This contention was rejected by the learned Single Judge in the following words:
"In the counter it is stated that
the charge memo was issued with the
approval of the Chairman and the
enquiry officer was also appointed
with the approval of the Chairman.
A perusal of the records shows that
the entire proceeding were taken
with the approval of the Chairman
commencing from the order of
suspension to the date of the
impugned order. The Note File of
the Board contains the signatures
of the Chairman on 24.5.87 and
20.11.87 to the effect that the
impugned proceedings were issued by
the Chairman. As the Chief
Executive Officer is the authority
to communicate the proceedings and
hence, all the proceedings were
only signed by him, but the Note
File reveals that the Chairman
approved the proceedings. The
contention of the petitioner
therefore has no substance."
The learned Single Judge also rejected the other contentions urged by the respondent and dismissed the writ petition. The respondent preferred a writ appeal wherein he reiterated the contention that the orders of suspension and dismissal were not taken and approved by the Competent Authority viz., Chairman. With a view to ascertain the true situation, the Division Bench called upon the counsel for the Board to produce the original file. The Chief Executive Officer Shri B.Kripandam, I.A.S., however, filed an affidavit that the original file was handed over to the standing counsel who had placed it before the learned Single Judge for his perusal but that the file has not been taken back from the Court. He, therefore, expressed his inability to produce the file. He reiterated that all the steps taken against the respondent were taken with the full sanction and authority of the Chairman. The Division Bench, however, was of the opinion that since it is not in a position to verify the correctness of the contention urged by the respondent (appellant before them) in view of the non-availability of the fire, the respondent should be given the total benefits to which he was entitled had he retired on the completion of age of superannuation. This is what the Division Bench observed:
"Although it is the usual
administrative practice for the
Chief Executive Officer to issue
formal orders after obtaining on
the note file the orders of the
competent authority, in the present
case was are unable to verify this
fact due to absence of the file,
which as already stated supra, was
misplaced. In view of this
lingering doubt we asked the
learned before us as to how much
amount the appellant would have
been entitled to had he retired on
completion of the age of
superannuation, particularly when
the order of dismissal was passed
five days before he attained the
age of retirement. Sri Murthy,
learned counsel for the statement
showing that the total benefits
approximately the appellant would
have got comes to Rs. 62,609.06.
Sri Murthy was also fairly stated
that the matter may be closed by
awarding some compensation to the
appellant.
In the circumstances, we are of the
view that the following order would
be just and proper. Within three
months from today respondents No.1
to 3 shall pay a sum of Rs.
60,000/- to the appellant. We must
also mention that the post is a
non-pensionable one and in the
normal course if the appellant had
retired from service, he would have
got approximately the aforesaid
amount."
In this appeal, it is submitted by the learned counsel for the appellant-Board that the Division Bench ought to have accepted the statement of the learned Single Judge contained in his judgement and that there was no reason for doubting the correctness of the said statement. The Board had handed over the file to the Court and since it was not returned, they were not in a position to produce the same before the Division Bench. The Board cannot be punished for the same, it is submitted.
We are to the opinion that the learned counsel for the appellant is justified in his submission. The learned Single Judge has specifically and clearly recorded in his Judgment that he has perused the records and that all the proceedings "commencing from the order of suspension to the date of the impugned order" were taken with the approval of the Chairman and that the ’note file’ does contain the signature of the Chairman showing that the impugned order of dismissal was issued by the Chairman. We see no reason why the said statement should be doubted. The statement found in the Judgment should be accepted as correct. The contention of the respondent to the contrary could not have been countenanced in the face of the said statement in the Judgment. We are, therefore, of the said statement in the Judgment. We are, therefore, of the opinion that the respondent must be deemed to have been dismissed by the Competent Authority viz., Chairman.
Mr. Narasimha, learned counsel for the respondent writ petitioner, submitted that there are several other submissions which were raised in the writ appeal but which have not been considered by the Division Bench since they allowed the appeal on the aforesaid one submission. In view of this submission, we think it appropriate that the matter should go back to the High Court/Division Bench for a fresh disposal of the writ appeal in accordance with law and in the light of the observations made herein.
The appeal is accordingly allowed. The Judgment under appeal is set aside and the matter remitted to the High Court for a fresh disposal of the writ appeal. No order as to costs.