S.B.Sinha, C.J. - (1.) How far and to what extent the Doctrine of Procedural Ultra Vires shall be applicable is the question involved in this reference. FACTS:
(2.) The petitioner was appointed as a Reader in the Copying Section of the Court of Metropolitan Sessions Judge, Hyderabad. She was subsequently promoted to the post of L.D.C. A Disciplinary Proceeding was initiated against her in relation whereto the following charges were framed on 15-12-1993: "1. When the Presiding Officer Sri P. Venugopala Rao, VIII Metropolitan Magistrate orally directed you to prepare and get it typed the consolidated report of the old criminal cases in which accused were absconding, you refused to prepare and get it typed the same and further stated even if a written direction is given you will tear it off and go on leave; and 2. When the Presiding Officer stated that he will not grant leave for the employees who avoid work then you threatened the Presiding Officer as "..............................." and thereby you exhibited gross misconduct, dereliction of duty, indiscipline, lack of sense of propriety and behaved in a manner unbecoming of a Government servant and thus violated Rule 3 clauses (1) and (2) of the Andhra Pradesh Civil Services (Conduct) Rules, 1964." An Enquiry Officer was appointed. The petitioner took part in the enquiry proceedings without any demur whatsoever. In the disciplinary proceedings, the petitioner was found guilty of the misconduct alleged against her. Upon issuance of a 2nd show-cause notice and perusing the explanation submitted by her, the Metropolitan Sessions Judge, Hyderabad - 2nd respondent herein has removed her from service by an order dated 24-09-1998 stating: "For the reasons aforesaid, I cannot take a lenient view in this case. The continuance of the delinquent in employment would endanger the career of several male employees, and it is also not in public interest to continue her in service." An appeal was preferred by the delinquent before this Court, which was dismissed by an order dated 30-07-1999. The writ petition was filed by the petitioner wherein a question was raised that although Civil Services (Classification, Control and Appeal) Rules, 1963 ('the 1963 Rules' for brevity) was repealed and replaced by new set of Rules known as A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, ('the 1991 Rules' for brevity) proceedings were initiated against her under the old rules. REASON FOR REFERENCE:
(3.) The writ petition came up for hearing before a Division Bench of this Court (Coram: Mr. Bilal Nazki and Mr. E. Dharma Rao, JJ.). The attention of the Division Bench was drawn to a judgment dated 12-4-2001 delivered by another Division Bench of this Court (Coram. Mr. S.R. Nayak and S. Anand Reddy, JJ) in W.P.No. 4931 of 1998 (2001 (5) ALT 228) wherein a similar question has been considered, and the said Division Bench while upholding the disciplinary action of the respondents held that no prejudice was caused to the writ petitioner of that case and that he has not made any complaint with regard to the grievance that the enquiry was being conducted under the repealed rules. The Division Bench (Coram: Mr. Bilal Nazki and Mr. E. Dharma Rao, JJ), however, was of the opinion that when an enquiry was conducted against non-existent and repealed Rules, the punishment given on the basis of such an enquiry would basically be without jurisdiction and thus the question of any prejudice may be irrelevant. In the order of reference, the Division Bench observed: Heard the learned Counsel for the parties, disciplinary action against the petitioner has been taken after initiation of disciplinary proceedings against him in terms of the provisions of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963. When the disciplinary action was taken, the 1963 Rules were not in existence, they had been repealed and replaced by a new set of Rules known as "Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. The action of the authorities to initiate an enquiry under the repealed Rules was prima facie without jurisdiction. While hearing the matter, Mr. C.V. Nagarjuna Reddy, learned Standing Counsel appearing for the High Court has drawn our attention to the judgment of a Division Bench of this Court in W.P.No. 4931 of 1998, dt. 12-4-2001 in which this question has been considered. The Division Bench was of the view after comparing the two sets of Rules that no prejudice had been caused to the writ petitioner in that case and that the petitioner had not made any complaint with regard to his grievance that the enquiry was being conducted under the Repealed Rules, therefore upheld the action of the respondents. With respects we are of the prima facie,view that an enquiry conducted under the non-existent and repealed Rules and the punishment given on the basis of such an enquiry is basically without jurisdiction. Prejudice or no prejudice, if an enquiry is conducted against non-existent and repealed Rules, the punishment cannot be sustained. Since we do not find ourselves in agreement with the law laid down by the Division Bench in the judgment delivered in W.P.No. 4931 of 1998, we refer this matter to a Full Bench. Let the matter be placed before the Hon'ble the Chief Justice for constitution of an appropriate Bench. SUBMISSIONS: Submissions of the Petitioner;;