S.R. Nayak, J.
1. Both the writ petitions are directed against the order of the Government in G.O. Rt. No.699, Education (CE-II) Department, dated 22-6-1996.
2. WP No, 12785 of 1996 is filed by the Management, while WP No. 15262 of 1996 is filed by the Charged Officer.
3. The background facts leading to the filing of these writ petitions may briefly be noted as under:
4. The Charged Officer was appointed as Lecturer in Commerce in V.V. Education Society on 12-9-1972. When he was serving as such, on 25-5-1985 he was transferred to V.V Day College from Evening College and he was relieved from the Evening College on 31-5-1985 and accordingly he reported to duty at the Day College. When he was serving as Lecturer in Day College, he absented himself with effect from 19-11-1985 and it appears that in the meanwhile, the Charged Officer filed WP No.2916 of 1986 assailing the Transfer Order dated 25-5-1985 transferring him from V.V. Evening College to V.V. Day College and that writ petition was dismissed by this Court on 20-3-1989.
5. According to the Management, the Charged Officer had been absenting from duty unauthorisedly with effect from 19-11-1985 and therefore, they issued a Charge Memo on 2-9-1989 attributing unauthorised absence constituting misconduct against the Charged Officer. The Charged Officer submitted his explanation on 25-9-1989 to the said Charge Memo. The Management not being satisfied with the explanation Offered by the Charged Officer, thought it necessary to conduct a regular departmental enquiry against him. Accordingly Sri Prabhakar Rao, Kulkarni, advocate was appointed as an Enquiry Officer by the Management on 8-1-1990. The Enquiry Officer issued necessary notices to the Charged Officer on 14-6-1990, 27-6-1990 and 24-7-1990 directing him to appear before him for the purpose of enquiry. Admittedly the Charged Officer did not participate in the said enquiry. The Enquiry Officer conducted ex parte enquiry and submitted his report on 10-12-1990 holding that the charge framed against the Charged Officer is proved. The Management considered the finding recorded by the Enquiry Officer and on 28-6-1991 the management resolved to dismiss the Charged Officer from service as a disciplinary measure. At that stage, the Charged Officer filed WP No. 10508 of 1991. It appears that writ petition was initially dismissed for non-prosecution on 22-10-1991 and subsequently it was restored to file at the behest of the Charged Officer vide orders of this Court dated 30-3-1992 made in WPMP No. 13264 of 1991 and on the same day this Court passed an interim order permitting the charged officer to join duty. The petitioner accordingly reported to duty on 3-4-1992. When WP No. 10508 of 1991 filed by the Charged Officer was pending, that the Management by its proceedings dated 14-7-1992 dismissed the Charged Officer from service in pursuance of its resolution dated 28-6-1991 after obtaining necessary permission from the competent authority under Section 79 of the A.P. Education Act. The charged officer being aggrieved by the said order, sought amendment of the writ petition in WP No.10508 of 1991 so as to assail the validity of the dismissal order dated 14-7-1992 passed by the Management. Ultimately that writ petition was allowed in part by this Court on 23-11-1992 setting aside the dismissal order passed by the Management dated 14-7-1992 mainly on the ground that after receipt of the Enquiry Report, the Management did not issue show-cause notice indicating the proposed penalty of removal from service to the Charged Officer.
The relevant portion of the order reads as under:
"It is clear from the above rule that there is a statutory obligation on the first respondent to issue a show-cause notice to the petitioner about the proposed punishment. In the instant case, it is not borne out by record that such a notice was issued to the petitioner. Therefore, it must be held that the proceedings dated 14th July, 1992 of the first respondent dismissing the petitioner from service and the approval accorded by the Joint Director of Higher Education vide proceedings Rc No.1923/PC III-1/91, dated 7th July, 1992 are bad. Accordingly, they are set aside.
It is admitted by the petitioner mat he did not attend the college since 19th November, 1985 without obtaining sanction of leave. Therefore, he is not entitled to claim any salary for the period prior to the date of his dismissal.
But, in view of my findings that his dismissal is bad, there shall be a direction to the first and third respondents to reinstate the petitioner into service and pay his full salary with effect from 14th July, 1992. However, it is clarified that this decision may not preclude the first respondent from reviving and continuing the disciplinary proceedings against the petitioner in accordance with the law, from the stage of issue of show-cause notice with regard to the proposed punishment.
The writ petition is accordingly, allowed to the extent mentioned above. The first respondent shall pay a sum of Rs. 500/- to the petitioner towards the costs of this petition."
6. As permitted by this Court in the above order dated 23-11-1992, in WP No. 10508 of 1991, the Management issued the show-cause notice on 21-5-1993 proposing penalty of dismissal as a disciplinary measure for the mis-conduct committed by the Charged Officer. The charged officer submitted his reply and on consideration of the reply, the Management passed the order dismissing the Charged Officer from service. Being aggrieved by the said action of the Management, the Charged Officer filed WP No. 8549 of 1993 on 22-6-1993 in this Court and that writ petition was disposed of by this Court on 25-10-1993 directing the Charged Officer to avail statutory appeal remedies provided under the Act by granting three months time to the Charged Officer. Accordingly, the Charged Officer preferred an appeal before the Regional Joint-Director, Higher Education, the 1st appellate authority, under Section 80 of the Act, and that appeal was dismissed by the Regional Joint Director by his order dated 5-11-1994. The Charged Officer then preferred a second appeal under Section 81 of the Act to the Government. The Government by its order dated 22-6-1996 impugned herein, allowed the second appeal on the ground that the appointment of an advocate as an Enquiry Officer is contrary to Rule 7(2) of the A.P. Private Institutions Employees (Disciplinary Control) Rules, 1983 (for short 'the Rules'). At the same time, the Government having regard to the serious allegations made against the Charged Officer, permitted the Management to take disciplinary action by following the prescribed procedure. Hence, the writ petitions both by the Management as well as by the Charged Officer.
7. Sri H.C. Upadhyaya, the Charged Officer has argued his case in person. The Charged Officer would contend that the appointment of an advocate as an Enquiry Officer is fatal to the enquiry proceedings and vitiates the disciplinary action taken against him. He would contend that an advocate can never be treated as a superior officer in rank to him who is a charged person in the disciplinary proceedings. In that view of the matter, he would maintain that no exception can be taken to the impugned order of the Government insofar as it set-aside the dismissal order passed by the Management. At the same time, the Charged Officer would contend that the Government has seriously erred in allowing the Management to conduct a de novo enquiry against him on the alleged unauthorised absence particularly at this distance of time.
8. Sri Y. Venkat Sastri, learned Standing Counsel for the Management, on the other hand, would contend that the ground on which the Government thought it appropriate to set at naught the disciplinary action taken by the Management for the unauthorised absence of the Charged Officer for a number of years was not at all taken at any point of time by the Charged Officer The learned Standing Counsel would maintain that, if the appointment of the advocate as the Enquiry Officer was irregular and violative of Rule 7(2) of the Rules, the Charged Officer, without any loss of time should have objected for his appointment at the earliest point of time. The learned Standing Counsel would point out that the Charged Officer has failed to take this plea not only before the Management, but also before this Court in earlier writ proceedings and before the 1st appellate authority also. Alternatively, the learned Standing Counsel would maintain that on account of the fact that an advocate was appointed as Enquiry Officer, no prejudice was caused to the Charged Officer and in fact such a plea was also not taken at any stage and even otherwise there is no proof that on account of appointment of the advocate as Enquiry Officer, the Charged Officer has suffered any substantive prejudice warranting interference with the disciplinary action. Sri Venkat Sastri placing reliance on an unreported judgment of a learned single Judge of this Court dated 7-4-1995 in WP No. 4177 of 1995, contend that appointment of an advocate as an Inquiry Officer would not violate provisions of Sub-rule (2) of Rule 7 of the Rules. The learned Counsel would point out that in that judgment the learned single Judge of this Court has held that an advocate cannot be treated as an inferior in rank to a Reader serving in an educational institution.
9. Sub-rule (2) of Rule 7 of the Andhra Pradesh Private Institutions Employees (Disciplinary Control) Rules, 1983 reads:
"(2) In every case, where it is proposed to impose any of the penalties specified in Sub-section (1) of Section 79, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances, which it is proposed to take into consideration in passing, orders in such case. He shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires an oral enquiry or only to be heard in person. For the purpose of preparing his defence, the charged person may be permitted to inspect and take extract, from such records as he may specify, provided that the Management may, for reasons to be recorded in writing, refuse such permission, if in its opinion, such records are not relevant for the purpose or it is against the interests of the institution to allow access thereto.
If an oral enquiry is desired by the person charged, the Management shall appoint an inquiring authority who shall be superior in rank to the charged person, to conduct the enquiry, oral evidence may be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish provided that the authority conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness".
Sub-rule (2) enables the Management to appoint an Inquiry Authority to conduct the enquiry if the charged person desires an oral enquiry, but such Inquiring Authority that may be appointed by the Management shall be superior in rank to the charged person. The question is whether an advocate can be considered to be an authority who is superior to the Charged Officer is this case or for that matter any charged employee serving in the establishment of V.V. Education Society represented by the 1st respondent. When Sub-rule (2) speaks about an authority superior in rank to the charged person, it clearly means an officer or a teacher in the establishment of the education society concerned who is superior in rank to the charged person. By no stretch of imagination, it can be said that an advocate who is undoubtedly a stranger to the Management could be considered to be an authority superior in rank to the Charged Officer. Comparison between an advocate and the Charged Officer would never arise in the context of Sub-rule (2) of Rule 7. In that view of the matter, we do not find any force in the contention of the learned Counsel for the Management that an advocate can be an Inquiring Authority for he is superior in rank to the charged officer. Similarly, with great respect, we are not in a position to accept the reasoning of the learned single Judge in the order dated 7-4-2001 in WP No. 4177 of 1995 who held that an advocate can be an Inquiring Authority because he can be considered to be superior in rank to the Charged Officer in that case holding the official status of a Reader in an educational institution, is not acceptable to us. As could be seen from that judgment, the following is the only reason for the learned Judge to conclude as above.
"I propose to consider them in seriatim. One Sri G. Suryam, a practicing advocate has been appointed as the Enquiry Officer in the present case. His competency is questioned on the strength of Rule 22 of the Sultan-Ul-Uloom Education Society Services (Classification, Control and Appeal) Rules, which provides that the Enquiry Officer shall be superior in rank to the Charged Officer. Sri Sastri contends that the Enquiry Officer, a practicing advocate cannot be regarded as superior in rank to the petitioner, who is a reader. I am unable to accept this contention as no material is placed to show that a practicing advocate with sufficient standing at the bar is inferior in rank to that of a reader working in an educational institution. Therefore, this part of the first ground must fail."
10. In G. Chandrakantha v. Guntur District Milk Producers' Union Limited rep. By its General Manager, Sangam Dairy, , bye-law 27(2)(b) of the Milk Producers Union Limited fell for interpretation before this Court. Bye-law 27(2)(b) reads:
"27(2) Initiation of Disciplinary Proceedings:
(b) The Competent Authority under Clause (a) above may itself conduct enquiry in accordance with the provisions of Rule 29 or subject to the order of the Managing Director or any other authority superior in rank to the employee charged, to conduct an enquiry".
Interpreting that bye-law and speaking for the Court, one of us (S.R. Nayak, J) held:
"Bye-law 27(2) does not permit appointment of an outside as an Enquiry Officer. Domestic enquiry may be held either by the appointment authority or any other authority superior in rank to the employee charged, subject to the order of the Managing Director. Therefore, the submission of the learned Counsel for the respondent that since Bye-law 27(2) is unintelligible and does not make sense it should be ignored totally and if that is ignored it is always open to the disciplinary authority to appoint even an outsider as an Enquiry Officer, is not acceptable to the Court."
11. In that view of the matter, appointment of an advocate to conduct a regular departmental enquiry against the petitioner would not be in conformity with the requirement of Rule 7(2) of the Rules. Undoubtedly, appointment of the Advocate as an Inquiry Authority is a procedural irregularity. But the question to be considered is whether on the count of that irregularity, the Government is justified in setting at naught the disciplinary action taken against the petitioner particularly at this distance of time. We proceed to consider that aspect of the matter. Although numerous facts are pleaded and documents are placed before this Court, we are of the considered opinion that the plea taken by the Charged Officer regarding appointment of an advocate as the Enquiry Officer should fail, if not for any other reason, at least for two formidable reasons. When the Charged Officer received charge memo dated 2-9-1989 understandably he had no occasion to oppose the appointment of the advocate as Enquiry Officer in his explanation dated 25-9-1989 submitted to the Charge Memo because by that time the Enquiry Officer was not appointed. However, after his appointment, the Enquiry Officer issued as many as three notices dated 14-6-1990, 27-6-1990 and 2-7-1990 calling upon the Charged Officer to participate in the enquiry. If the Charged Officer had any reason to oppose the appointment of the advocate as the Enquiry Officer, he should have without any loss of time opposed his appointment and should have called upon the Management to appoint an officer in the Management who is superior in rank to the petitioner as Enquiry Officer. That is the first serious lapse on the part of the Charged Officer. It is pertinent to notice that even after disposal of the Writ Petition No. 10508 of 1991 when the Management issued show-cause notice on 21-5-1993 to the Charged Officer, he did not raise this plea, though admittedly he chose to file his reply to that show-cause notice. Further the Charged Officer did not raise this plea in WP No. 10508 of 1991 and number of applications he filed in that writ petition though the Charged Officer was quite aware of the appointment of the advocate as Enquiry Officer by that time. The Charged Officer also did not raise this plea before the Regional Joint Director, the 1st appellate authority. This technical plea was taken for the first time before the Government, the second appellate authority.
12. In almost similar fact situation, this Court in D. Nageswara Rao v. Guntur District Milk Producers, Co-op. Union Limited, Vadlamudi, Tenali, Guntur District and another, , to which one of us (S.R. Nayak, J) was a party in Para 8 of the above judgment, observed as under:
"Let us first dispose of the argument relating to the appointment of the Enquiry Officer. It is true that the petitioner has placed some material before us to show that the Enquiry Officer was, at the relevant point of time, placed at serial No. 51 whereas the petitioner was placed at serial No. 2 in the common cadre seniority list of Managers Grade-I. It is also true that Rule 27 (2) provides that departmental enquiry be held either by the disciplinary authority himself or by an officer or authority superior to the delinquent in question authorized by the disciplinary authority. Undoubtedly, in appoint the Enquiry Officer, the disciplinary authority has committed an irregularity. But, the question for us to consider is whether on that count, we should nullify the disciplinary action taken by the disciplinary authority. After necessary reflection and though, we are not persuaded to interfere with the disciplinary action only on that ground. We say this because the petitioner did not raise this plea at all at any point of time nor the contention that on account of this irregularity he suffered any prejudice. He slept over the matter. As already pointed out supra, he did not participate in the enquiry also. Therefore, at this belated stage, the petitioner cannot be permitted to advance this technical plea while assailing the impugned disciplinary action."
13. It is quite often stated and reiterated that the principles of natural justice are intended to promote justice and they are not meant to thwart justice. If disciplinary action is otherwise grounded on the proved mis-conduct, such an action cannot be set at naught, on a purely technical plea, particularly when such plea was not raised at the earliest permissible or possible point of time by the delinquent. It is not that the Charged Officer had no occasion to raise such a plea when he came to know about the appointment of an advocate as the Enquiry Officer. The Charged Officer for the reasons best known to him when he assailed the disciplinary action before this Court as well as before the Statutory authorities did not raise that plea as a ground of attack and he chose to raise plea as the only desperate plea in the second round of litigation before the 2nd appellate authority for the first time. Further, it is also relevant to note that except raising this technical plea, the Charged Officer has neither pleaded nor proved that on account of the appointment of the advocate as Enquiry Officer, he has suffered any prejudice. Not a word is said in the pleading of the Charged Officer to satisfy ourselves that on account of appointment of the advocate as Enquiry Officer, the Charged Officer was subjected to some prejudice nor the Government in its impugned order has recorded any such finding warranting interference. Above all, there is a formidable reason for not allowing this plea in our considered opinion, because, it is hit by the principle of constructive res judicata. The Charged Officer filed WP No. 10508 of 1991, when the Management on consideration of enquiry report, by a resolution dated 28-6-1991 resolved to dismiss him from service as a disciplinary measure. By that time the Charged Officer was pretty well aware that the entire enquiry was conducted by the Advocate-Enquiry Officer appointed by the Management. Therefore, that plea was very much available to the Charged Officer to assail, when he assailed the apprehended disciplinary action. Be that as it may, by the time the Writ Petition No. 10508 of 1991 was disposed of on 23-11-1992, the Charged Officer was dismissed by the Management by its proceedings dated 14-7-1992 and though the Charged Officer sought amendment of the prayer so as to assail the validity of the dismissal order dated 14-7-1992, he did not press into service the above technical plea. It is well settled that res judicata as well as constructive res judicata equally apply to the writ proceedings. The plea which was available to the Charged Officer, but which was not raised, cannot be permitted to be raised subsequently for such plea is hit by explanation (IV) of Section 11 of the Civil Procedure Code. In that view of the matter, we do not find any justification for the Government to set at naught the disciplinary action taken against the Charged Officer by the Management for the proved mis-conduct on such a technical plea.
14. As regards Writ Petition No. 12785 of 1996 filed by the Management, suffice it to state that if the impugned disciplinary action cannot be sustained on technical plea, it goes without saying that, that action cannot be faulted because the Charged Officer has not advanced any arguments touching the merits of the matter. Since we find that the ground on which the second appeal of the Charged Officer is allowed, is untenable, it goes without saying that the Management is entitled to succeed in the writ petition filed by it.
15. In the result, and for the foregoing reasons, WP No. 12785 of 1996 filed by the Management is allowed and WP No. 15662 of 1996 filed by the Charged Officer is dismissed. The resultant position is that the disciplinary action taken by the Management dismissing the Charged Officer from service as a disciplinary measure by its order dated 22-6-1993 stands. In the facts and circumstances of the case, parties are directed to bear their own costs.