S.G Khan v. Chairman Admin

T HE HON'BLE SRI JUST ICE C.V.RAMULU W.P.Nos.10291 and 13108 of 2008 COMMON ORDER: While Writ Petition No.10291 of 2008 is filed by one S.G. Khan seeking a Mandamus directing the Management of Koneru Laxmaiah College of Engineering – respondents 2 and 3 - to implement the Order passed by the Commissioner of Technical Education, Government of Andhra Pradesh, Hyderabad, 1st respondent, in Proceedings No.E4/27814/04-Vol.II, dated 8-1- 2008, Writ Petition No.13108 of 2008 is filed by the Management to quash the said Order. The parties are hereinafter referred to as arrayed in Writ Petition No.10291 of 2008. The petitioner-S.G. Khan-was appointed as Electrician in the 3rd respondent College with effect from 27-11-1982. While so, charge sheets dated 26-1-2004 and 29-7-2004 were issued to him alleging insubordination, negligence of duty, misappropriation, damage to the property of the institution etc. Petitioner submitted his explanation to the said charge sheets. Thereafter, one M.V.Nageswara Rao, Retired Assistant Commissioner of Labour, Vijayawada was appointed as an Enquiry Officer to conduct the enquiry into the charges levelled against him. The Enquiry Officer found the petitioner guilty of the charges. Thereafter, a show cause notice was issued for which the petitioner submitted his reply. Ultimately, the petitioner was dismissed from service with effect from 10-2-2005. Aggrieved by the same, petitioner preferred an appeal before the 1st respondent, who, by an Order dated 8-1-2008 allowed the same, on the ground that the Enquiry Officer appointed by the Management is not a person superior in rank to the petitioner and is also an outsider to the institution, which is contrary to proviso to Rule 7(2) of the Andhra Pradesh Private Institutions Employees (Disciplinary Control) Rules,1983 (for short ‘the Rules’) and the Orders of this Court dated 6-1-2006 in W.P.No.406 of 2006 and batch and the permission of competent authority in terms of Section 79 of the Andhra Pradesh Education Act is mandatory before imposing the penalty of removal against an employee. Thus, the order of removal passed by the Management on 9-2- 2005 was set aside leaving liberty to the Management to proceed with the disciplinary proceedings from the stage of issuance of charge Memo, by appointing an Enquiry Officer, as per law. Challenging the said Order, as stated above, Management filed Writ Petition No.13108 of 2008, whereas, the employee filed Writ Petition No.10291 of 2008 seeking implementation of the said Order. It is the case of the petitioner that though the appellate authority-1st respondent set aside the Order of removal passed against him way back in January,2008, the Management has not reinstated him into service till date because of which irreparable loss is being caused to him since he was out of service from February,2005; therefore, the Management may be directed to implement the Order passed by the 1st respondent on 8-1-2008, forthwith. Further, the Management has filed Writ Petition No.13108 of 2008 only as a counterblast to the Writ Petition filed by him, without availing the alternative remedy of appeal. Whereas, it is the case of the Management that the Order of the appellate authority dated 8-1-2008 is liable to be quashed, since the petitioner did not raise any objection, at any stage of the enquiry proceedings, about the appointment of a retired Assistant Commissioner of Labour as an Enquiry Officer and no prejudice is caused to the petitioner because of appointment of a retired Assistant Commissioner of Labour as an Enquiry Officer. That apart, the Management requested the 1st respondent for grant of prior permission as required under Section 79 of the A.P. Education Act, through letter dated 16- 12-2004, but the 1st respondent informed about the judgment of the Apex Court in T.M.A. PAI FOUNDAT ION v. STAT E OF KARNAT AKA and requested to take further action as [1] deemed fit, through letter dated 25-1-2005 and, thereafter, the final order of removal from service was passed on 9-2-

2005. Further, the appeal filed by the petitioner before the 1 st respondent is time barred, since the order of removal was passed on 9-2-2005, whereas the petitioner filed the appeal on 3-4-2006, i.e. after expiry of 30 days prescribed under Section 80 of A.P. Education Act. Heard both sides and perused the impugned Order and other material made available on record. It is an admitted fact that the petitioner was appointed in Koneru Laxmaiah College of Engineering, Vijayawada in the year 1982 as Electrician. While so, he was issued with charge sheets dated 26-1-2004 and 29-7-2004 alleging irregularities insubordination etc. Thereafter, one Nageswara Rao, Retired Assistant Commissioner of Labour was appointed to conduct enquiry into the charges levelled against the petitioner. After conducting enquiry, the Enquiry Officer submitted his reports holding the petitioner guilty of the charges. The Management, thereafter, issued a show cause notice for which the petitioner submitted his reply. Ultimately, the petitioner was removed from service by an Order dated 9-2-

2005. Challenging the same, he filed an appeal dated 7-3-2005 before the Director of Technical Education, Government of Andhra Pradesh, Hyderabad, who by an Order dated 13-6-2005 directed him to approach the appropriate legal forum for redressal of his grievance, as the Director is not the appropriate legal forum for redressal of grievance of employees of Private Engineering Colleges in view of the Judgment of the Supreme Court in T .M.A.Pai’s case (supra). Thereafter, the petitioner filed an appeal before the Minister for Technical Education on 7-10-2005. As there was no response, he filed an appeal before the Chief Minister of the State on 16-12-2005. Since the same was also not considered, petitioner filed an appeal dated 3-4-2006 before the Director of Technical Education. Alleging inaction on the part of the Director of Technical Education in disposing of the appeal, he preferred a Writ Petition in W.P.No.8574 of 2007, which was disposed of by this Court on 24-4-2007 directing the Director to dispose of the appeal filed by the petitioner within a period of one month. Thereafter, the 1st respondent passed the impugned Order dated 8-1-2008. There is no necessity of going into all the details. It is suffice to notice that against the impugned Order of the 1 st respondent, there is an effective alternative remedy of appeal available to the Management. The Management, without availing the said remedy, approached this Court directly by way of W.P.No.13108 of 2008. Therefore, without going into the merits of the case, the Management (petitioner in W.P.No.13108 of 2008) is given liberty to approach the appellate authority within a period of four weeks from the date of receipt of a copy of this Order and raise all such contentions as are raised in the Writ Petition. The appellate authority, on filing such appeal, shall entertain the same without raising any objection as to the limitation and dispose of it in accordance with law. Insofar as Writ Petition No.10291 of 2008 is concerned, it is an admitted fact that the 1st respondent has passed the order way back in January,2008. Though the Management has filed Writ Petition No.13108 of 2008 seeking to quash the said Order passed by the 1st respondent on 8-1-2008, no interim order has been passed staying/suspending the operation of the same. As such, the Order dated 8-1-2008 is subsisting and the Management is supposed to implement the same. Therefore, respondents 2 and 3 in Writ Petition No.10291 of 2008 (Management) are directed to implement the Order dated 8-1- 2008 passed by the 1st respondent-Commissioner of Technical Education forthwith, subject to the result of the appeal to be filed by the Management. With the above directions, the Writ Petitions are disposed of. No order as to costs. 30-10-2008 [1] 2002(8) SCC 481