When once conviction suffered by an employee of an offence involving moral turpitude is treated as a misconduct by the Corporation, which will fetch the punishment of dismissal of service from the Corporation, it is incumbent upon the competent authority to provide an opportunity of hearing by issuing a notice to the individual concerned. That would be in accord with the fundamental principles of natural justice which required that no man should be condemned unheard. It is not for the disciplinary authority to assume that the delinquent has no manner of any defense to offer for the proposed action. As is often times recalled, even God has not condemned Adam for having eaten the forbidden fruit without providing him an opportunity to explain his conduct. Therefore, it is a fundamental requirement of every valid exercise which is likely to impact any other person with grave consequences to provide him before hand an opportunity of hearing. The failure to afford an opportunity of hearing to the petitioner herein before inflicting on her the punishment of dismissal from service, therefore, cannot but be described as the one which is passed in derogation of the principles of natural justice.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION No.2241 of 2015  

06-03-2015

Smt.I.G.Ramana Kumari.....Petitioner

Eastern Power Distribution Company of A.P. Limited. Rep. by its Chairman-cum-
Managing Director and another.. Respondents

Counsel for the Petitioner: Sri Vedula Srinivas

$Counsel for Respondents: Sri P.Anand Seshu
                          Sri Krishna Rachakatla

<Gist :

>Head Note:

? Cases referred:

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION NO. 2241 OF 2015  

ORDER:


        The petitioner who was serving the first respondent
Corporation as a Junior Assistant mounted a challenge in this writ
petition to the order passed on 05.01.2015 by the Superintendent
Engineer (Operations), Visakhapatnam of the first respondent
Corporation inflicting on her the punishment of dismissal from
service.

        Heard Sri Vedula Srinivas, learned counsel for the petitioner
and Sri Krishna Rachakatla for the respondents.
       
        Sri Vedula Srinivas, learned counsel for the petitioner would
urge that the writ petitioner was initially recruited as a Junior
Assistant by the erstwhile Andhra Pradesh State Electricity Board
which was subsequently bifurcated into Andhra Pradesh
Transmission Corporation and Andhra Pradesh Generation
Corporation. Further, after distribution companies have been
established as part of electricity reforms, the first respondent
company has been formed and the petitioner came to be allotted to
the service of the first respondent corporation. It is urged that, on
the ground that the petitioner has committed certain serious
irregularities in the matter of properly accounting for, the funds of
the first respondent corporation the petitioner was subjected to
disciplinary proceedings which culminated in an order passed on
06.10.2010 imposing punishment of stoppage of two increments
with cumulative effect, besides treating the period of suspension as
Extraordinary Leave (EOL) which punishment was also confirmed
by the Appellate Authority by rejecting the appeal preferred by the
petitioner on 28.07.2010.  However, the very same allegations
against the petitioner and another person who was working as a
UDC with the first respondent corporation were the subject matter
of criminal case in C.C.No.1687 of 2008 on the file of the
Additional Judicial First Class Magistrates Court at Narsipatnam.
Of the three accused, the petitioner herein was shown as Accused
No.2 in the said criminal case.

        The learned Additional Judicial First Class Magistrate,
Narsipatnam by his judgment dated 31.07.2012 convicted the
accused of the offences under Section 420 and 468 I.P.C and
sentenced the accused to undergo simple imprisonment for a
period of six months besides imposing a fine of Rs.5,000/-.  The
writ petitioner has preferred Criminal Appeal No.62 of 2012 and
the learned IV Additional District and Sessions Judge,
Visakhapatnam by his order dated 24.08.2012 suspended the
sentence imposed on the petitioner and the criminal appeal is still
pending.

        However, by the impugned order dated 05.01.2015, the
second respondent-Superintending Engineer has imposed the
punishment of dismissal from service on account of the conviction
handed down to the petitioner by the criminal court. It is this order
which gave rise to this writ petition. Sri Vedula Srinivas, learned
counsel for the petitioner would urge that the very same conduct of
the writ petitioner is not faithfully accounting for the revenues of
the corporation was viewed and considered as misconduct and
consequently disciplinary proceedings were initiated for the alleged
misconduct. The said disciplinary proceedings have ended in an
order passed on 06.01.2010 imposing the punishment of
withholding two increments with cumulative effect, besides
treating the period of suspension as extraordinary leave. Therefore,
the second respondent has already exhausted the power of
disciplinary control for the same acts of misconduct allegedly
committed by the writ petitioner and hence, he cannot penalize the
writ petitioner by imposing the punishment of dismissal from
service, a second time all over. It is urged by the learned counsel
for the petitioner that for the same set of misconduct, the
petitioner cannot be subjected to disciplinary action twice and by
two separate proceedings two different punishments cannot be
imposed. Any such action of imposing two different punishments
by two different sets of proceedings amounts to double jeopardy,
which is opposed to the basic principles of fair play and justice, as
enshrined in Article 20 of our Constitution. The learned counsel for
the petitioner would also urge that the writ petitioner has not been
provided with any opportunity whatsoever before imposing the
punishment of dismissal from service. Learned counsel would
further urge that when once the conduct rules treat conviction of
an offence involving moral turpitude by the employees of the first
respondent corporation as a major misconduct, then, it is
imcumbent that the procedure prescribed for imposing
punishment of dismissal from service has got to be faithfully
followed. In the instant case, no such procedure has been followed
and not even an opportunity of hearing is provided to the writ
petitioner before imposing the punishment of dismissal from
service.
        Sri Rachakatla Krishna, learned counsel for the respondents
would submit that after full-fledged trial, whereat the petitioner
had been provided every opportunity to defend, the competent
criminal court has convicted her and sentenced her to undergo
imprisonment for a period of six months besides imposing fine of
Rs.5,000/-.  Since the writ petitioner has been convicted for the
offences under Section 420 and 468 of the I.P.C, which carry moral
turpitude, there is no way that the petitioner can be expected to be
retained in service, for, a person who has been convicted of an
offence involving moral turpitude there could not have been any
other punishment than dismissal from service that could be
imposed. He, therefore, urges that no exception need be drawn to
the order passed by the Superintending Engineer.

        Dealing with the objection that no notice or opportunity of
hearing has been provided to the writ petitioner before imposing
the punishment of dismissal from service, learned counsel for the
respondents would urge that it is the conviction imposed by the
criminal court, suffered by the petitioner which fetched the
punishment and so long as the conviction remains, the petitioner
has nothing to offer for consideration of the second respondent and
hence, it is not required for the second respondent to put the
petitioner on notice or provide her an opportunity of hearing.

        Dealing with the contention advanced by Sri Vedula
Srinivas, learned counsel for the petitioner, that the power of
disciplinary power is exhausted, it would be appropriate to notice
the contents of the charge memo dated 28.06.2007 and the one
bearing No.775/2008 dated 15.09.2008 by which disciplinary
proceedings have been formulated by the second respondent
against the petitioner. Two specific charges have been framed
against the petitioner. It is alleged in Charge No.1 that the
petitioner has transferred the closing balances of certain
disconnected services and bill stopped services to other bill
stopped service initially. It was further alleged against the
petitioner that she has processed clearance certificates upon
collecting meager amounts without prior approval or permission
from the higher officers. Thus, the serious irregularities committed
by the petitioner reflected her failure to maintain integrity and
devotion to duty, exhibiting misconduct enumerated in Regulation
4(XXX), (XXVI), (XLI) of APSEB Conduct Regulations as adopted by
the first respondent Corporation. In Charge 2, it was also alleged
against the petitioner that the petitioner has not collected the
actual amounts due to the first respondent company intentionally.
As a result, her conduct has resulted in the loss to the company. It
is the specific case in the charge memo, that the petitioner has
raised debits in a sum of Rs.99,850/-  in non-operative accounts of
consumers when the billing of the service was stopped. It was also
the case of the first respondent corporation that credits for
Rs.66,322/- were given to certain non-operative accounts of
consumers. It was alleged that dues relating to certain local bodies
were written off by the petitioner. This apart, a sum of
Rs.2,69,436/- was withdrawn by raising fictitious demands. Thus,
the charge-sheet specifically adverted to the misconduct exhibited
by the petitioner while performing duties in the service of the
Corporation.
        In juxtaposition thereto, the charge laid in C.C.No.1687 of
2008 against the petitioner herein who was arrayed as A-2 was
that she made forged entries in the rectification register, while
issuing clearance certificates. It was also the case that A-3, the
husband of the petitioner herein abetted A-2 and A-1, the UDC of
the Corporation to misappropriate a sum of Rs.5,16,525/- of the
Corporation.  On behalf of the prosecution PWs 1 to 12 were
examined and Exs.P-1 to P-13 were marked, while portions of 161
Cr.P.C statements of PWs 3 & 4 were marked as Exs.D-1 & D-2.  
After considering the entire evidence and placing reliance upon the
evidence of PWs 1 & 3 and P.W.12, the Trial Court had come to the
conclusion that the prosecution has proved the guilt of the accused
for the offences under Section 420 and 468 read with 34 I.P.C
against A-1 & A-2 and also for the offence under Section 409 I.P.C
against A-1 & A-2 beyond all reasonable doubt. P.W.3 has spoken
about the factum of verification of the registers and records which
revealed that fraudulent entries with regard to 434 service
connections running to an amount of Rs.1,70,000/- and odd has
come to be detected. The Trial Court convicted the writ petitioner
for the offence of Section 420 I.P.C and sentenced her to undergo
six months imprisonment and imposed a fine of Rs.5,000/- and
similarly for the offence under Section 468 I.P.C imprisonment for
six months and fine of Rs.5,000/- was imposed. A-1 & A-2 were
sentenced to undergo simple imprisonment for six months for the
offence punishable under Section 409 I.P.C and also to pay fine of
Rs.2,500/- each.  All the sentences were ordered to run
concurrently. It is no doubt true that entertaining criminal appeal
No.62/2012, the learned special Judge for ACB cases-cum-III
Additional District Judge, Visakhapatnam and Full Additional
Charge IV Additional District and Sessions Judge by his order
dated 24.08.2012 suspended the sentences of imprisonment till
disposal of the appeal and the writ petitioner has paid the fine
amount of Rs.5,000/- already.

        From the above, it becomes clear that the disciplinary
proceedings have been initiated against the petitioner for the
irregularities committed by her and for her failure to maintain
integrity and devotion to duty, apart from causing loss of revenue
to the first respondent corporation. It may be noted that the said
conduct may have also amounted to dishonesty, cheating and
forgery which are recognized as offences under the Indian Penal
code. It is for this reason that the writ petitioner was also
simultaneously subjected to prosecution before the competent
criminal court. I am therefore, of the opinion that the contention
canvassed by Sri Vedula Srinivas that the petitioner is sought to be
penalized for the same set of misconduct twice all over is without
any merit. It is the conduct of the writ petitioner which has
attracted proceedings of two divergent nature, one visiting civil
consequences and the other penal consequences. Unless a  
particular human conduct is recognized by law as offence, no
person can be subjected to prosecution lawfully. A particular
conduct, if it attracts both civil consequences and penal
consequences, there is no bar to proceed simultaneously or one
after the other.

        It will be appropriate to notice that the Andhra Pradesh
Transmission Corporation Limited made revised conduct
regulations and published the same through BPMs No.647
Management Service dated 10.07.1978.  These revised conduct
regulations have been adopted by the first respondent corporation
and applied them to the employees. There is no dispute raised on
this account with regard to the applicability of these revised
conduct regulations. Regulation (4) of these conduct regulations
listed out various acts/deeds which are liable to be treated as
misconduct on the part of the employees of the enumerated list,

Item (xxxvii) of the enumeration thereof reads as under:

Conviction in any Court of Law for any criminal
offence involving moral turpitude

        It is not in dispute, therefore, that conviction of a criminal
offence involving moral turpitude is treated as a misconduct by the
Corporation. It will also be appropriate to notice that Item (xxx) of
this enumeration reads as under:

to neglect work
Item (xxvi) reads as under:

to commit theft, fraud or act dishonestly in
regard to the Transcos business or property

Item (xLi) of this enumeration reads as under:

Breach of rules and regulations of the Transco

It will be significant to note that the charge-sheet dated
15.09.2008 proceeded to deal with the petitioner with regard to the
misconduct enumerated at Regulation 4, Serial No. xxvi, xxx and
xLi of Regulation 4 of the Conduct Regulations. Whereas, the
petitioner is now sought to be proceeded against for the
misconduct enumerated at Serial No. xxxvii of Regulation 4.  A
careful analysis of the conduct regulation No.4 makes it very clear
that the conviction of an offence involving moral turpitude without
anything more on the part of an employee of the corporation itself
is considered as a misconduct by the Corporation. It is not difficult
to realize why conviction of an offence involving moral turpitude is
treated as a different component and separately enumerated
misconduct by the corporation. All employees of the corporation
are required to maintain good and decent conduct even when they
are not physically performing duties at that hour or even when
they are granted leave of absence from duty. Therefore, the
employees of the respondent corporation are required to maintain
an absolute integrity and devotion to duty while they perform
duties and when they are off duty they are required maintain
decent conduct and to stay clear of committing any offence
involving moral turpitude. As is too well known, all offences may
not carry moral turpitude. There can be host of offences, described
as such not only in the Indian Penal Code, but also by various
other enactments such as Motor Vehicles Act, Prevention of
Cruelty to Animals Act and also various local enactments
concerning local bodies such as gram panchayat or municipalities,
recognizing therein certain conduct as an offence. But, such
offences may not carry with them the moral turpitude. Not all
offences described under the Indian Penal Code also carry moral
turpitude. In this view of the matter, since the offences for which
the petitioner herein has been sentenced to undergo imprisonment
are involving moral turpitude, the petitioner has rendered herself
liable to be proceeded independently for the misconduct
enumerated under Regulation (4)(xxxvii) of the Conduct
Regulations. In this view of the matter, I have no hesitation to
reject the contention of Sri Vedula Srinivas that the respondents
have exhausted the power of disciplinary control over the
petitioner, since she was already penalized once before by imposing
the punishment of stoppage of increments with cumulative effect.
The petitioner is sought to be proceeded now for an altogether
different misconduct than the one which fetched her the
punishment of stoppage of two annual grade increments with
cumulative effect. The present one arose out of conviction suffered
by her involving offences carrying moral turpitude.

        The principle enunciated under Article 20 of our
Constitution is a very salutary one. No person shall be penalized
twice for the same offence. But, if a person has committed various
acts of misconduct either jointly or severally and each of them
constitute a separate offence or misconduct by itself, such a
person renders liable to be proceeded against for each such count
and hence, the contention canvassed by Sri Vedula Srinivas in that
respect lacks any merit.

        However, Sri Vedula Srinivas has urged that no notice or
opportunity of hearing has been accorded by the Superintending
Engineer (Operations), the second respondent herein before he has
imposed the punishment of dismissal from service through the
impugned order dated 05.01.2015.  It is, therefore, urged that
principles of natural justice have been violated in the process by
the second respondent.

        Sri Rachakatla Krishna could not neutralize this plea of the
petitioner. Though the second respondent has entered caveat by
filing a detailed affidavit, he has not adverted as to whether any
notice or opportunity of hearing has been provided to the writ
petitioner before he passed the impugned order. Further, the
impugned order makes a reference to four earlier proceedings
dated 15.02.2006, 26.07.2006, 15.09.2008 and 30.12.2013.  From
the order of punishment imposed on the petitioner dated
15.09.2008, I could gather that by proceedings dated 15.02.2006,
the first of the references in the impugned order, the General
Manager (Internal Audit) of the Corporation has been appointed as
an Enquiry Officer to enquire into the allegations leveled against
the writ petitioner. Charges have been framed against the
petitioner through proceedings dated 28.06.2007 and ultimately by
proceedings dated 15.09.2008 a show cause notice was issued
proposing to reduce the pay of the petitioner to the minimum of
the time scale besides treating the period of suspension as
Extraordinary Leave limiting it to the subsisting allowance already
received by her. There is no reference in the impugned order to any
prior notice issued. It is therefore clear that the second respondent
has not provided any notice or opportunity of hearing to the writ
petitioner before he imposed the punishment of dismissal from
service.

        When once conviction suffered by an employee of an offence
involving moral turpitude is treated as a misconduct by the
Corporation, which will fetch the punishment of dismissal of
service from the Corporation, it is incumbent upon the competent
authority to provide an opportunity of hearing by issuing a notice
to the individual concerned. That would be in accord with the
fundamental principles of natural justice which required that no
man should be condemned unheard. It is not for the disciplinary
authority to assume that the delinquent has no manner of any
defense to offer for the proposed action. As is often times recalled,
even God has not condemned Adam for having eaten the forbidden
fruit without providing him an opportunity to explain his conduct.
Therefore, it is a fundamental requirement of every valid exercise
which is likely to impact any other person with grave consequences
to provide him before hand an opportunity of hearing. The failure
to afford an opportunity of hearing to the petitioner herein before
inflicting on her the punishment of dismissal from service,
therefore, cannot but be described as the one which is passed in
derogation of the principles of natural justice.

        In this context, it would be appropriate to deal with another
facet of the argument of Sri Vedula Srinivas that the dismissal
from service being a major punishment, provided for under
Regulation (5)(viii) of A.P. Transco Employees Discipline and
Appeal Regulations, which are adopted by the first respondent
Corporation, which also incidentally enumerate conviction in a
Court of Law for any criminal offence involving moral turpitude as
a misconduct, it is incumbent for the Corporation to follow the
procedure prescribed under those regulations before imposing the
punishment of dismissal from service. If, for a misconduct
committed by an employee of the Corporation, if the punishment of
dismissal from service is likely to be imposed, then, the
Corporation cannot but follow the procedure prescribed under the
aforementioned regulations. But however, if an employee of the
Corporation has already been proceeded against by a competent
criminal court which has convicted him of an offence involving
moral turpitude duly providing every opportunity for establishing
his defense, what is being viewed subsequently by the Corporation
is only the conduct of the employee concerned which fetched him
the conviction. The conduct which fell foul of law having already
been established in a competent Criminal Court of law, after a full-
fledged trial in her presence, the question of requiring it to
establish the same conduct all over would not simply arise.
Therefore, for purposes of reckoning or taking into account the
conduct of the employee of the Corporation which led to the
conviction of an offence involving moral turpitude, the Corporation
was not required to follow the procedure prescribed under the
regulations all over again. Any such attempt or requirement would
tend to dilute the effect of conviction imposed by a competent
criminal Court. Further, any such conviction can only be modified
or altered either by an Appellate or Revisional Court but not by
another institution.  Therefore, I have no hesitation to reject the
contention of Sri Vedula Srinivas that since the discipline and
control regulations also enumerate the conviction in any Court of
Law for any criminal offence involving moral turpitude as a
misconduct, the Corporation is required to conduct an elaborate
and detailed enquiry all over again for establishing the very same
foul conduct on the part of the employee. Hence, the impugned
order is not vitiated on that score.

        However, since I have come to the conclusion that the
impugned order dated 05.01.2015 is vitiated for sheer failure to
comply with the principles of natural justice, I consider it
appropriate to direct the respondents to treat the order dated
05.01.2015 as purely provisional in nature and content and
provide the writ petitioner thirty (30) days time from today for
drawing an appropriate representation bringing out as to why the
punishment of dismissal from service cannot still be imposed on
her. It is for the second respondent, thereafter to take the same
into account and pass appropriate order either confirming the
punishment or withdrawing the same. Till such time, further order
is passed by the second respondent, the order dated 05.01.2015
shall be treated as not visiting the petitioner with any evil
consequences which is otherwise intended. In other words, the writ
petitioner be continued to be treated as a member of the service of
the first respondent Corporation and is entitled to all benefits that
normally flow there from.

        With this, the writ petition stands disposed of.

        Consequently, miscellaneous applications pending if any
shall stand closed. No costs.

_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
06.03.2015

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