HON’BLE SRI JUSTICE R. SUBHASH REDDY AND HON’BLE SRI JUSTICE A.V. SESHA SAI Writ Petition No.21969 of 2010 Date: 22nd April 2014 Between:
The Govt. of A.P., and others … Petitioners And Vetapalem Srinivasa Rao and another … Respondents Order: (Per Justice R. Subhash Reddy) The respondents in O.A.No.11472 of 2009 before the A.P. Administrative Tribunal, Hyderabad (for short “the Tribunal”) have filed this Writ Petition challenging the order dated 20.04.2010 passed by the Tribunal allowing the said O.A., filed by the 1st respondent herein, under Section 19 of the Administrative Tribunals Act, 1985. By the aforesaid order, the Tribunal has set aside the order dated 23.09.2009 passed in G.O.Ms.No.1002-Revenue (Vigilance.IV.2) Department, by which the 1st respondent- applicant was dismissed from service by the disciplinary authority, in exercise of powers under Rule 9(X) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short “the APCS (CCA) Rules”).
2. The 1st respondent herein was working as Mandal Deputy Surveyor in the office of the Mandal Revenue Officer, Giddalur, Prakasam District. The authorities of the Anti-Corruption Bureau registered a case in Cr.No.15/RCT-NPK/2005 against him and one Sri Chinna Satyanarayana, the Panchayat Secretary of Gadikota village, alleging that they have demanded and accepted illegal gratification for showing official favour. On complaint made by the complainant, a trap was arranged and the 1st respondent-applicant was placed under suspension. Thereafter, he was reinstated. The authorities have not proceeded with criminal prosecution on the ground that sanction orders were not issued by the competent authority. Criminal case was closed on 26.02.2007. The Government referred the matter to the Tribunal for Disciplinary Proceedings to conduct enquiry by framing necessary charges in the departmental proceedings. In the departmental proceedings, the Tribunal for Disciplinary Proceedings registered case against the 1st respondent-applicant as TEC.No.10 of 2007 and against Sri Chinna Satyanarayana, i.e., Panchayat Secretary, as TEC.No.11 of 2007 and framed the following charge:
“That you, Sri V. Srinivasa Rao, while working as Mandal Deputy Surveyor, O/o. the MRO, Giddalur and Sri Chekka Chinna Satyanarayana, Panchayat Secretary, Gadikota village, Giddalur Mandal, Prakasam District (Charged Officer in TEC.No.11/2007) were actuated by corrupt motive and in abuse of your official position demanded and accepted on 24.8.2005 at 12.30 hours at your office and illegal gratification of Rs.20,000/- from the complainants (1) Sri Guttpati Pedda Hussainaiah, S/o. Maddi Saheb and (2) Sri Chagalamarri Nedipi Peeraiah, S/o. Fakeraiah, both residents of Devangaram village, Giddalur Mandal, Prakasam District, for doing official favour, i.e. to process applications in getting pattas on their names and on the names of their relatives which were pending with you and the Charged Officer in TEC No.11/2007 and that thereby you are guilty of misconduct within the meaning of rule 3 of A.P. Civil Services (Conduct) Rules, 1964 read with Rule 2(b) of the framed under the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 as amended in 1993.”
3. The Tribunal for Disciplinary Proceedings, after, recording oral and documentary evidence, came to the conclusion that the allegation against the 1st respondent- applicant is proved and accordingly sent its report dated 16.08.2007 to the Government. Thereafter, the 1st petitioner issued show-cause notice to the 1st respondent on 01.06.2009, enclosing a copy of the report of the Tribunal for Disciplinary Proceedings and called for explanation. The 1st respondent-applicant filed his explanation to the show-cause notice on 05.08.2009. In the explanation filed by him, while disputing the findings recorded by the Tribunal for Disciplinary Proceedings, he requested to drop the proceedings. After receipt of the explanation, the 1st petitioner herein passed order dated 23.09.2009 in G.O.Ms.No.1002, imposing punishment of dismissal from service on the 1st respondent-applicant. Challenging the said order, the 1st respondent-applicant filed O.A.No.11472 of 2009, under Section 19 of the Administrative Tribunals Act, 1985.
4. The Tribunal, by the impugned order, allowed the application filed by the 1st respondent-applicant on the ground that the disciplinary authority has not consulted the Andhra Pradesh Public Service Commission (APPSC) as required under Regulation 17(1)(V)(a) of Andhra Pradesh Public Service Commission Regulations, 1963 and did not consider the various objections raised by the 1st respondent-applicant in the explanation dated 05.08.2009 filed by him to the show-cause notice issued by the disciplinary authority. Further, the Administrative Tribunal, referring to the findings recorded by the Tribunal for Disciplinary Proceedings, has held that though witnesses, i.e. PWs.1 and 2 have not supported the charge, adverse findings are recorded against the 1st respondent-applicant based on the statements prepared under Section 161 Cr.P.C. The Tribunal also has taken the view that as no orders are passed against Sri Chinna Satyanarayana, 1st respondent-applicant was treated in a discriminatory manner.
5. We have heard learned Government Pleader for Services II for the petitioners and Sri Kowturu Pavan Kumar, learned counsel for the 1st respondent-applicant and perused the material on record.
6. It is contended by the learned Government Pleader appearing for the petitioners that the Tribunal exceeded the scope of the jurisdiction and passed the impugned order. It is submitted that in view of Regulation 17(2)(h) of the APPSC Regulations, 1963, it is not necessary to consult the APPSC before passing final orders in disciplinary proceedings, in which enquiry has been held by the Tribunal for Disciplinary Proceedings. It is further submitted that with regard to the objections raised by the 1st respondent-applicant to the show-cause issued by the 1st petitioner, the said issue has already been considered by the Tribunal for Disciplinary Proceedings during the enquiry; as such it is not necessary to record further reasons while passing final orders when the findings of the Tribunal for Disciplinary Proceedings are accepted by the disciplinary authority. It is further submitted that, while considering the validity of the order of dismissal passed by the Government, the Tribunal fell in error in re-appreciating the evidence on record and found fault with the findings of the Tribunal for Disciplinary Proceedings. It is further submitted that even against the Panchayat Secretary, orders of dismissal were passed; as such it cannot be said that there is any discrimination as pleaded by the 1st respondent-applicant. In support of his submissions, learned Government Pleader relied on the decisions of the Hon’ble Supreme Court in High Court of Judicature at
[1]
Bombay v. Shashikant S. Patil and anr. and Union of
[2]
India and others v. Alok Kumar .
7. On the other hand, it is submitted by the learned counsel for the 1st respondent-applicant that the disciplinary authority has passed orders in a casual manner, without due consultation with the A.P. Vigilance Commission/Director General of Vigilance and Enforcement and the order dismissing the 1st respondent-applicant from service was passed without considering the explanation filed by him. It is further submitted that such order passed is contrary to the provisions under Rule 6(2)(b) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989, framed under Section 10 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960. It is further submitted that though the independent witnesses did not support the charge in the disciplinary proceedings, the Tribunal for Disciplinary Proceedings has given credence to the statements prepared under Section 161 Cr.P.C., and recorded its findings in support of the charge; as such, they are perverse and illegal. It is further submitted that when the disciplinary authority has issued show-cause notice along with the findings recorded by the Tribunal for Disciplinary Proceedings, objections were filed by way of explanation; in spite of the same, the 1st petitioner, without considering such objections, passed order dismissing the 1st respondent-applicant from service, in a routine manner. Lastly, it is submitted that no error is committed by the Tribunal, which warrants interference in this petition under Article 226 of the Constitution of India. Learned counsel for the 1st respondent-applicant has placed reliance on several judgments and we will refer the judgments, which are relevant for the purpose of disposal of this Writ Petition, at the appropriate stage.
8. The A.P. Public Service Commission Regulations, 1963 are framed vide G.O.Ms.No.489, G.A.D., dated 23.04.1963 in exercise of powers conferred under Article 318 and proviso to clause (3) of Article 320 of the Constitution of India. As per Regulation 17(1)(V)(a) of APPSC Regulations, 1963, it is made necessary for the disciplinary authority to consult the APPSC before passing order of dismissal. However, by virtue of the provision under Regulation 17(2)(h) of the Regulations, wherever enquiry is conducted by the Tribunal for Disciplinary Proceedings, the applicability of the provision under Article 17(1) is excluded. A reading of Regulation 17(2)(h) of the Regulations makes it clear that when an enquiry is conducted by the Tribunal for Disciplinary Proceedings, the application of provision under Regulation 17(1) is excluded. Hence, the finding of the A.P. Administrative Tribunal that non-consultation vitiated the order of dismissal, is not correct. To that extent, the finding of the Tribunal is fit to be set aside. Though the ground is not raised before the A.P. Administrative Tribunal, but, during the course of hearing of this Writ Petition, learned counsel has brought to our notice that under proviso to Rule 6(2) (b) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989, it is mandatory to consult the Director General of Vigilance and Enforcement and take his advice into consideration before final orders are passed. On instructions, it is submitted by the learned Government Pleader that no such advice is taken. It is to be noticed that such ground was not raised before the Tribunal, as such, there was no occasion for the Tribunal to deal with the same. At the same time, an identical provision was considered as regards consultation with the APPSC before passing final order by the disciplinary authority by the Hon’ble Supreme Court in State of U.P., [3] v. Manbodhan Lal Srivastava , wherein it is held that such consultation is only directory but not mandatory. In view of the said judgment, argument advanced by the learned counsel for the 1st respondent-applicant cannot be accepted so as to invalidate the order of dismissal on that ground. While considering identical provision under Article 320 (3) (c) of the Constitution of India, in the aforesaid judgment, the Hon’ble Supreme Court has held that such consultation is not mandatory and non- compliance with those provisions, does not afford a cause of action to civil servant in a Court of law. The further ground on which the order of the disciplinary authority is set aside is that the Tribunal for Disciplinary Proceedings has based its findings on surmises and presumptions though independent witnesses, i.e. P.Ws.1 and 2 did not support the prosecution case. A copy of the enquiry report is placed on record. A perusal of the same indicates that the prosecution examined seven witnesses – P.Ws.1 to 7 and marked Exs.P.1 to P.17 and exhibited M.Os.1 to 5. On behalf of the 1st respondent-applicant, Exs.D.1 to D.4 were marked. From a reading of the enquiry report, it is clear that P.Ws.1 and 2 have not supported the prosecution case when they were cross- examined. Other witnesses are official witnesses. In this case, it is to be noticed that, even according to the case of the prosecution, the tainted money was seized from the rack of the charged officer situated in his office room in his absence. Because the tainted money was found in the office room of the charged officer, presumption is drawn that he accepted the money towards illegal gratification. It is also to be noticed that, at the time of inspection, the charged officer was not available in the office and the money was recovered from his office in his absence. In the absence of independent witnesses supporting the charge and only based on the statements made by the official witnesses, findings are recorded by the Tribunal for Disciplinary Proceedings. P.Ws.1 and 2 who appeared in the enquiry stated that the charged officer has never demanded any amount and they have never paid any amount to him and both of them were declared hostile.
9. In the case of Yoginath D. Bagde v. State of [4] Maharashtra and another , relied on by the learned counsel for the 1st respondent-applicant, the Hon’ble Supreme Court has held that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court to interfere in the matter. A Division Bench of this Court in the case of M. Abdul Lateef v. Govt. of Andhra [5] Pradesh and another , as relied on by the learned counsel for the 1st respondent-applicant, has held that in a departmental proceedings if the decision is arrived at in the absence of any relevant evidence or if such evidence is unreliable, such an order is to be treated as perverse. But, at the same time, in the judgment relied on by the learned Government Pleader appearing for the petitioners in the case of High Court of Judicature at Bombay v. Shashikant S. Patil (1 supra), the Hon’ble Supreme Court, while considering the scope of judicial review in a disciplinary matter, has held that if there is some legal evidence on which findings are based, then adequacy or even reliability of that evidence is not a matter to be canvassed before the High Court. Further, in the judgment in the case of Union of India (2 supra), as relied on by the learned Government Pleader for the petitioners, the Hon’ble Supreme Court has held that, to interfere in the disciplinary proceedings, employee must show that prejudice has actually been caused to him and there is violation of principles of natural justice. In a matter of departmental proceedings, when the enquiry report is prepared and if the findings recorded are based on no evidence or total irrelevant evidence, it is always open to this Court to examine the correctness of findings. A reading of the enquiry report makes it clear that it is a case where there is no evidence of payment or acceptance of the bribe by the 1st respondent-applicant directly as alleged. Admittedly, the tainted money was recovered from the almirah of the office of the charged officer in his absence. The complainants have not supported the case and findings are recorded just based on the evidence of other officers and there is no independent evidence. Even from the evidence of P.Ws.3 to 7, it is not possible ordinarily for a prudent person to arrive at the findings which are arrived at by the Tribunal for Disciplinary Proceedings against the charged officer. In absence of substantiating the charge by the independent witnesses, i.e. P.Ws.1 and 2, and in view of the fact that tainted money was recovered from office of the charged officer, but not from him, this Court is of the view that findings recorded are erroneous, perverse and based on no legally acceptable evidence. Hence, it is a case to be treated as a case of no evidence in support of the charges or the Tribunal for Disciplinary Proceedings has recorded findings based on irrelevant evidence. Therefore, we are of the view that the aforesaid judgments on which the learned Government Pleader for the petitioners relied on would not support the case of the petitioners. On the other hand, the judgment in the case of Yoginath D. Bagde (4 supra) supports the case of the 1st respondent- applicant. In that view of the matter, we confirm the findings of the Tribunal. It is also to be noticed that the order of dismissal is set aside on the ground that disciplinary authority has not considered the explanation.
The disciplinary authority has recorded findings in the absence of any direct evidence but only based on the evidence of the official witnesses and based on the same when show-cause notice was issued to the charged officer, he submitted explanation on 15.08.2009 disputing the findings recorded by the Tribunal on several grounds. It is categorically stated in the explanation that witnesses examined in the enquiry proceedings did not support the case of the prosecution and the Tribunal for Disciplinary Proceedings relied on the statements made by the witnesses during the investigation and came to an erroneous conclusion. In spite of such detailed explanation, no reasons are recorded in the order of dismissal and simply the Government issued order dated 23.09.2009 passed in G.O.Ms.No.1002-Revenue (Vigilance.IV.2) Department, stating that explanation offered by the 1st respondent-applicant is not convincing and decided to confirm the decision taken by the Government to dismiss the 1st respondent-applicant from service. The Tribunal has set aside the order of dismissal on the ground that the order of dismissal is not supported by reasons. The Tribunal, relied on the judgment of the Hon’ble Supreme Court in S.N. Mukherjee v. Union of India[6] and a judgment of a Division Bench Mir Sabir Ali v. Commissioner of Police[7] in which the Division Bench has disapproved the final orders passed in the disciplinary proceedings in the absence of recording reasons. Further, in the case of Roop Singh Negi v.
[8]
Punjab National Bank , the Hon’ble Supreme Court has held that in a departmental enquiry, while considering the duty to record reasons in the departmental enquiry held that orders of disciplinary authority and appellate authority entails civil consequences; as such orders must be based on reasons. In paragraph 23 of the said judgment, it is held as under:
“Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”
10. The Hon’ble Supreme Court, in the case of
[9]
Managing Director, ECIL v. B. Karunakar , while considering several aspects with regard o the effect of non-furnishing of copy of the enquiry report and other related issues in disciplinary proceedings, has held that after submission of enquiry report by the enquiry officer, before the disciplinary authority comes to its own conclusions, the delinquent employee should have a liberty to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, report of the enquiry officer and the representation of the employee against it. Further, in the judgment in the case of Valli Kumari v. Andhra Education Society and others[10] the Hon’ble Supreme Court disapproved the order passed by the disciplinary authority removing the employee from service without recording reasons by simply referring to the findings of the enquiry officer. It was held that such an order is to be held as vitiated due to violation of natural rules and the principles of natural justice. The aforesaid judgments relied on by the learned counsel for the 1st respondent- applicant would support the findings recorded by the Tribunal that the disciplinary authority has not recorded any reasons before passing order of dismissal. In view of the authoritative pronouncement referred above, we are of the view that the Tribunal has rightly set aside the order of the disciplinary authority on the ground that the said order is passed without recording any reasons in spite of detailed explanation offered by the 1st respondent-
applicant to the show-cause notice after completion of enquiry by the Tribunal for Disciplinary Proceedings. Hence, the finding of the Tribunal to that effect is to be confirmed.
11. For the foregoing reasons, we do not find any ground to interfere with the impugned order of the Tribunal.
12. Writ Petition is accordingly dismissed. As a sequel, miscellaneous petitions, if any pending in the Writ Petition, stand closed. No order as to costs.
R. SUBHASH REDDY, J A.V. SESHA SAI, J 22nd April, 2014 MRR
[1] (2000) 1 SCC 416
[2] (2010) 5 SCC 349
[3] AIR 1957 SC 912(1)
[4] (1999) 7 SCC 739
[5] 2005 (2) ALD 752
[6] AIR 1990 SC 1984
[7] 1999 (5) ALD 123
[8] (2009) 2 SCC 570
[9] AIR 1994 SC 1074
[10] (2010) 2 SCC 497