HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD W.P.No. 2671 of 2008 % 18.02.2010 # The State of A.P. represented by its Principal Secretary to Government, Transport, Roads and Buildings Department , Secretariat, Hyderabad ..... PETITIONER AND S. Venkateswara Rao and one another .....RESPONDENT(S) < GIST: > HEAD NOTE: !Counsel for petitioner : Government Pleader for Services-II ^Counsel for Respondents: Sri J.R.Manohar Rao. ? Cases referred -nil- IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 2671 of 2008 Between: The State of A.P. represented by its Principal Secretary to Government, Transport, Roads and Buildings Department , Secretariat, Hyderabad ..... PETITIONER AND T. Venkateswara Rao and one another .....RESPONDENT(S) ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed in the nature of Writ of Certiorari calling for the records relating to the orders dated 27.7.2006 passed in O.A.No. 6196 of 2004 and quash the same as illegal. Brief facts of the case are that the respondents-applicants herein were put under disciplinary proceedings on the allegation that they paid Rs. 259.50 ps per 4” dia PVC Pipes, without approved rates by the Superintending Engineer, and further on allegation that the rate is not ascertained from the Superintending Engineer’s Office, and the third allegation that they have failed to show the evidence of rate of Rs. 250/- and the fourth allegation is that the Superintending Engineer has approved a rate of Rs. 113.25 paise for the same item in 1996 and as such the rate in a previous year could not be higher. Respondents- applicants submitted their explanation to the Charge Memo. The Government vide Memo dated 5.12.1997 appointed Sri K. Ramulu, Member, Commissionerate of Inquiries, as Enquiry Oficer, to conduct departmental enquiry against several other persons. The Enquiry Officer conducted a detailed enquiry and submitted his report on 29.5.2000. Meanwhile, the respondents-applicants attained the age of superannuation and stood retired. Thereafter, a show cause notice dated 17.4.2001was issued proposing recoveries of Rs. 32,180.05 paise and Rs. 1,15,340.43 paise besides imposing suitable punishment. The respondents-applicants submitted their explanation on 31.5.2001 and the petitioners have passed the impugned orders dated 4.10.2004 inflicting the punishment of 2% cut in pension besides recoveries of amounts, which reads as under: “Orders were issued in the G.O 1st read above, inflicting the punishment of 2% cut in pension permanently besides recovery of Rs. 32,180.15 ps., against Sri S. Venkateswara Rao, EE(R&B) Retd., for the loss caused to Government in purchase of PVC pipes at excess rates, after following the due procedure of conducting departmental enquiry and after issuing a notice to him duly supplying a copy of the E.O’s report and also notifying the disagreement with the findings of the EO and after taking into account the submissions made by him and after taking the concurrence of the A.P.Public Service Commission. Against the said orders of imposition of the punishment, Sri S. Venkateswara Rao, along with Sri M. Surender, another EE(R&B) Retd., (who is also similarly involved and against whom a similar punishment is awarded) filed O.A No. 6470/2002 on the file of the A.P. Administrative Tribunal (APAT). The APAT set aside the impugned orders issued in the G.O first read above as arbitrary and illegal, while finding that one of the points raised by the applicants have not been considered and that Government has not applied its mind. However, it has been made clear therein that the orders of the APAT does not preclude the Govt. to pass a fresh order after examining the reply submitted by the applicants in accordance with law. (2) Sri S. Venkateswara Rao, in his reply has stated that the Enquiry Officer (E.O) held that the Charge against him as not proved, that the decision of the Govt. to impose cut in his pension and to recover the sum of Rs. 32,180.05 as ultra vires of Rule 9(1) of A.P Revised Pension Rules, 1980, that with regard to powers and responsibilities of Executive Engineer under para 45 of APPW ‘D’ Code he has stated that the adoption of rates in estimates by the AEE/DEE will be from that of the SSR and if the same is not an SSR item, the rate adopted is as approved by Superintending Engineer, that the Govt. have not proved that he has adopted a rate which was not in existence prior to 1995, that the rates adopted by Superintending Engineer contains full of mistakes in calculations etc., that it did not indicate whether the rate for ISI pipe or non-ISI pipe was taken into consideration, that it is absurd and baseless to compare the inaccurate rate of 1995 with that of the rate approved by the Superintending Engineer prior to 1995, that rate fluctuates on principles of supply and demand and hence comparing the rate approved during 1995 with that of 1993-94, 1994-95 etc, is against all cannons of justice and more over the enquiry officer has clearly stated that it is not appropriate to emphasize the loss with the rate said to have been approved in 1995 and that he has not violated Para 45 of APPW ‘D’ Code, that the EO has clearly stated without any ambiguity that the tenders are called for and it is seen that the tender rates received are equal to or higher than the estimate rates, thus what is stated by the Government that the payment of Rs. 250/- was without approval of the Superintending Engineer and without calling for tenders is baseless and that the data rate once approved by the Superintending Engineer will be common and to be adopted in the estimates and tenders can be decided thereon, that he has not acted in any way to sacrifice the financial interests of the Government, that the E.O found that it has been established in the Addendum report that the rate of Rs. 250/- existed in the relevant period i.e., till the end of 1994, that there is no violation of Rule4 of APFC as he has called for the tenders and approved the estimates based on the rate of Rs. 250/- as approved by the Superintending Engineer and that thus, he has not violated Para 45 of APPW ‘D’ Code or Rule 3(1) of APCS (Conduct) Rules, 1964. (3) Government after careful consideration of the above aspects, is of the considered view that Para 45 of APPW ‘D’ Code is very clear that Sri S. Venkateswara Rao, who worked as EE and prepared/approved the estimates is responsible for the ‘Engineering features of designs and the rate in the estimates prepared or sanctioned by him’ and he cannot absolve himself of the responsibility under the guise of adopting the rates that were existing or approved by the Superintending Engineer in the Circle. His further plea that rate fluctuates on principles of supply and demand and hence comparing the rate approved during 1995 with that of 1993-94, 1994-95 etc., is against all commons of justice has no force, so long as the fact remains that no independent exercise has been done by him for adopting the rates in the estimates prepared/approved by him especially when he is the authority competent and responsible under Para 45 of APPW ‘D’ Code. In view of this, Government is of the opinion that his representation is not at all convincing and deserves no consideration. Therefore, it is decided to award the punishment of imposition of 2% cut in pension permanently besides fecovery of Rs. 32,180.15 ps on him.” Aggrieved by the same, respondents-applicants filed O.A and the Tribunal after taking into consideration all the relevant material made available on record allowed the O.A. Being aggrieved by the same, the State of A.P. represented by its Principal Secretary to Government, Transport, Roads and Buildings Department, Secretariat filed the present Writ Petition. The learned Government Pleader for Services-II vehemently contended that the Tribunal has committed serious error in allowing the O.A inasmuch as the Executive Engineer without calling for the tenders and without any authority sanctioned the rate at the rate of 250/- per 4” dia PVC Pipes whereas previously the Superintending Engineer has approved the rate of Rs. 113.25. He also contended that the Enquiry Officer held the charges not proved but the disciplinary authority gave reasons for disagreeing with the report of the Enquiry Officer on certain grounds even then the Tribunal has committed serious error in allowing the O.A. On the other hand Sri J. R. Manohar Rao, learned counsel appearing for the respondents-applicants contended that the charges are very simple and in the light of the categorical findings of the Enquiry Officer it is rather astonishing that the disciplinary authority is disagreeing with the finding of the Enquiry Officer on the ground that they did not obtain the approval from the Superintending Engineer and the Tribunal rightly allowed the O.A by setting aside the orders passed by the Government in GORT Nos. 866 and 867 , Transport, Roads and Buildings (Vig.I) Department, dated 4.10.2004 and there are no grounds to interfere with the order passed by the Tribunal and the Writ Petition is liable to be dismissed. We have heard the learned Government Pleader for Services-II appearing for the petitioners and also Sri J.R. Manohar Rao, learned counsel appearing for the respondents. We have perused the order impugned. The Tribunal has considered the matter in a proper perspective. As seen from the record, the disciplinary authority held that the Enquiry Officer in unmistakable terms gave a finding that the allegations are treated as not proved. To which, the disciplinary authority issued a Memo dated 17.4.2001 explaining the points on disagreement with the findings of the Enquiry Officer, which reads as under: “3) The Enquiry Officer has held that the charges against the charged officers are treated as not proved. The Government have examined the report and disagree with the findings of the Enquiry Officer on the following grounds:- That the most of estimates were sanctioned in the division offices itself for supply and fixing of PVC Pipes. As per para 45 of A.P. Public Works “D” Code, the EE (R%&B) is responsible for the rates in the estimates prepared and sanctioned. The EE (R&B) adopted higher rate for supply of PVC Pipes paying Rs. 250/- without the approval of the SE (R&B) and without calling for Tenders causing loss to the Government. Sri S. Venkateswara Rao, E.E (R&B) has not taken any precaution for protecting financial interest of the Government and paid higher amounts.” The Tribunal while allowing the O.A as regards the applicants adopting higher rates observed as under: “On a perusal of the aforesaid para, the reason for disagreeing with the Enquiry Officer’s report is that the applicants adopted higher rate for supply of PVC Pipes paying Rs. 250/-, without approval of Superintending Engineer, and approved the rates in the circle office. Further, it is evidence from the report that the Superintending Engineer’s Office retained the rate of Rs. 250/- for the pipes and it corrected the rates for the bends from Rs. 200/- to Rs. 250/-. This goes to show that the applicants had obtained the approval from the Superintending Engineer. In the light of this categorical finding of the Enquiry Officer, it is rather astonishing that the disciplinary authority is disagreeing on the ground that they did not obtain the approval from the Superintending Engineer.” The Tribunal with regard to violation of Article 4 of APFC Rules at the time of passing of final orders observed as under: “It is rather surprising to notice another contradiction at the stage of passing of final orders. The reason that weighed with the disciplinary authority to come to the conclusion that there is violation of Article 4 of APFC Rules, is totally on different ground. The disciplinary authority gave reasons for disagreeing with the report of the Enquiry Officer on certain grounds, which in the opinion of this Tribunal I contrary to the record available before the Enquiry Officer, and passed the impugned orders by assigning different reasons, alleging that the applicant have independently followed the rates approved by the Superintending Engineer.” The Tribunal further clarified as regards the disagreement of findings of the Enquiry Officer and reasons for allowing the O.A, which reads as under: “So, the disciplinary authority according to the provisions contained in AP Civil Services (CC&A) Rules, have got every right to differ with the Enquiry Officer’s report. At the time of differing, cogent reasons are to be recorded for disagreement. As pointed out herein above, the reasons for disagreeing with the report of the Enquiry Officer is contrary to the evidence available on record, which was collected during the course of enquiry. Therefore, in the opinion of this Tribunal, the applicants have not been dealt with fairly by the disciplinary authority. I have perused the orders passed by this Tribunal in O.A.No. 6936/2001 with VMA NO. 769/2003, dated 4.10.2005. The reasoning given in the matter of fixation of price will also hold good in the case of applicant herein. In fact, in the said case, this Tribunal had interfered at the stage of show cause notice, and further, in the operative portion, it made it very clear that the applicant therein retired way back in the year 1994 and already 11 years have elapsed and the impugned order of show cause notice was set aside in that case. Having regard to the foregoing decision, I am inclined to set aside the impugned orders passed in G.O.Rt.Nos. 866 and 867, Transport, Roads & Buildings (Vig.I) Department, dated 4.10.2004, by the Government, and they are accordingly set aside. The O.A is allowed.” As seen from the order, the Enquiry Officer conducted a detailed enquiry and submitted his report on 29.5.2000 stating that the charges against the charged officers are treated as not proved. The Government have examined the report and disagree with the findings of the Enquiry Officer on certain grounds and finding was recorded in the final order, and the Tribunal after going through the entire material made available on record allowed the O.A by setting aside the order dated 4.10.2004. This Court, in case where the punishment imposed is highly excessive and there are procedural irregularities while conducting the enquiry and the principles of natural justice have not been followed, may invoke the doctrine of proportionality. Therefore in our view, the Tribunal has not committed any illegality or irregularity so as to dislodge the finding of the Tribunal. The Tribunal has gone through the evidence and rightly allowed the O.A by setting aside the impugned order passed in G.O.Rt. Nos. 866 and 867, Transport, Roads & Buildings (Vig.I) Department dated 4.10.2004. Therefore, we find no illegality or irregularity in the order impugned warranting interference by this Court. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. GHULAM MOHAMMED, J ______________________________ SANJAY KUMAR , J Dt. 18.02.2010 KA L.R.copy to be marked. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 2 CD copies