IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SECOND DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 18640 of 2008 Between: 1 The State of A.P., rep. by its Special Chief Secretary to Government, Social Welfare Dept., Secretariat, Hyderabad. 2 The Commissioner of Social Welfare, A.P., Hyderabad. ..... PETITIONER(S) AND P.Soma Raju Khammam, Khammam District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ order or direction more particularly one in the nature of "Writ of Certiorari" calling for the records relating to the orders of the Hon'ble A.P. Admn. Tribunal, Hyderabad passed in OA.No.3647/2007 dated 06.11.2007 as being erroneous, illegal and unreasonable and quash the same and pass such other order or orders. Counsel for the Petitioner: GP FOR SERVICES II Counsel for the Respondent No.: MR.J.R.MANOHAR RAO The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR Writ Petition No.18640 of 2008 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed by the petitioners-State seeking to issue a writ, order or a direction, more particularly one in the nature of writ of certiorari, calling for the records relating to the orders of the A.P. Administrative Tribunal passed in O.A.No.3647 of 2007, dated 6.11.2007 as being erroneous and to quash the same as the Tribunal by the impugned order has set aside the punishment imposed by the Disciplinary Authority without going into the grounds raised in the O.A and remanded the matter to the Disciplinary Authority to pass orders in accordance with the decision taken earlier i.e to impose a penalty of stoppage of two increments with cumulative effect. The brief facts of the case are that on coming to the notice of the Government that certain officers in Social Welfare Department involved in certain lapses in depositing the decretal amount in sub-Court, Narsipatnam regarding Elamanchili and Pisinikada Villages of Visakhapatnam Land Acquisition case, the Government in Social Welfare Department and Commissioner of Social Welfare, A.P., Hyderabad have framed articles of charges against the respondent- Sri P.Soma Raju, the then Assistant Director (Legal Cell), O/o the CSW, Hyderabad under APCS (CCA) Rules, 1991 who dealt with Land Acquisition cases of Pisinikonda and Yelamanchili Villages of Visakhapatnam. The Deputy Director (LA), Visakhapatnam, submitted a note on 31.8.1995, stating that insufficient amount was deposited resulting in non-compliance of the stay orders granted by the Hon’ble Supreme Court. The respondent has stated that he forwarded the file to the Commissioner, Social Welfare on verifying the facts and subsequent developments. However, in the enquiry conducted by the Commissioner of Inquiries, the presenting officer stated that in fact, the other charged officer Sri Syed Moizuddin, the then Deputy Director (S.W) had not brought out any new developments in the notice dated 31.8.1995, except reproducing the representation made by the Advocates. On this issue, a charge was framed against the respondent and the same was proved in the enquiry. In this regard, a show cause notice was issued to the respondent vide Government Memo No.3981/SW.Ser.1/2000-63, dated 19.6.2001, for his explanation, if any, on the enquiry report. The explanation submitted by the respondent and the enquiry report was examined by the Government and it was decided to impose major penalty of removal from service against the respondent. Accordingly, the orders were issued, vide G.O.Ms.No.44, S.W (Ser.II (2) Department) dated 23.6.2007, imposing the penalty of removal from service on the respondent. The Government has decided to remit the case to inquiring authority for further inquiry into the charge Nos.1 & 2 under the provisions of Rule 9 (1) of the All India Services (D&A) Rules, 1969. Accordingly, in G.O.Rt.No.4934, G.A(SC-D) Department., dated 11.9.2002 Sri R.C.Samuel, IAS, the then Chairman (i/c), Commissioner of Inquiries was appointed as Inquiring Authority for further inquiry in respect of charge Nos.1 & 2. In D.O letter dated 16.9.2003, the Inquiring Authority submitted the inquiry report holding the charges 1 & 2, as not proved. In Memo No.72/SC.D/A2/199-52, dated 5.2.2005, both the inquiry reports have been communicated to the respondent, with a request to submit his explanation, if any, on the findings of the Inquiring Authorities. The respondent, in his letter dated 22.2.2005, submitted his explanation on the findings of the Inquiring Authority. The Government, in the first instance, taken a provisional decision to withhold two increments with cumulative effect as a measure of penalty on the respondent. When the file was referred to Andhra Pradesh Vigilance Commission (APVC), it was advised to impose higher penalty of dismissal/removal from service against the respondent. The Government has carefully thought over the advice rendered by the A.P.V.C., and decided to remove the respondent from service and accordingly orders were issued. Hence, it is clear that the Government has not taken the decision, at the instance of APVC., but after a through re-examination of the matter and also on a careful consideration of the advice of the APVC. In view of the respondent processing the relevant file, he was served with Charge Memo, dated 22.3.2000, wherein the following Article of Charge has been framed, which reads as follows:- “The said Sri P.Soma Raju, Assistant Director (Legal Cell), Office of the Commissioner of Social Welfare, A.P., Hyderabad has circulated a file No.l8371/94 on 15.7.1995 recommending not to agree with the District Collector, Visakhapatnam in his letter dated 19.6.1995 for release of Rs.1.00 crore subject to condition to keep the said amount in the Court deposit till the SLP filed in respect of O.P.No.21 of 1987 of Pisinikada land acquisition case is disposed off. The same was approved by the Commissioner of Social Welfare vide his note orders dated 29.7.1995. On receipt of representation from the advocates from the land owners the said Sri P.Soma Raju again circulated a note dated 31.8.1995 recommending for release of Rs.1.00 crore as requested by the District Collector, Visakhapatnam which is against the earlier decision taken by the Commissioner of Social Welfare on 29.7.1995. Sri P. Soma Raju, Assistant Director (LC) is responsible for recommending for release of Rs.1.00 crore and loss caused to the Government. (basis: File No.8371/94/G1, Office of the Commissioner of Social Welfare at Pages 22 to 29 of the note file).” The Tribunal relied upon the judgment in Nagaraj Shivrao Karjagi v. Syndicate Bank Head Office, Manipal and Another (AIR 1991 SC 1507), which was followed by the Hon’ble High Court as reported in the case of Mubashir Hussain v. Commissioner of Central Excise III, Hyderabad and others (2004 (7) ALT 289 (DB)) wherein it has been held as follows:- “ In S.B.I vs. H.K. Dogra, (1995, (5) SLR 255), the Punjab and Haryana High Court held that the opinion of the CVC is purely advisory in nature and it cannot act as an appellate authority. Yet again In SP Agarwal v. Muncipal Corporation Delhi (1997 (1) SLR 455), the Delhi High Court has clearly held that the advice of the CVC is not binding on the disciplinary authority and it has to apply its own mind independently and arrive at an independent finding appreciating the facts and evidence on record. Even non-consultation with the CVC would not vitiate the disciplinary proceeding. (See State of S.P.V Dr.Rahimuddin Ramal (1997) 2 SCC 505). It may be one thing to say that a disciplinary authority takes into consideration the advice of CVC while issuing an order of punishment on the basis of the materials placed before it and upon application of its won (sic. Wn) mind, but, it is another thing to say that it abdicates its statutory power to the CVC and pass an order of punishment although in its opinion no punishment should be imposed on the delinquent officer. The instant case is a glaring example where the disciplinary authority had abdicated its power in favour of the CVC and acted pursuant to or in furtherance of the advice of the CVC. 14. In the aforesaid situation, the disciplinary authority must be held to have committed a jurisdictional error in passing the order (See Anisminic Ltd. V. Foreign Compensation Commission (1969 (2) AC 147). The impugned order, therefore, cannot be sustained.” and has set aside the order of removal and the matter was remitted to the Disciplinary Authority to pass orders in accordance with the decisions taken earlier i.e., to impose a major penalty of stoppage of two increments with cumulative effect. The learned Government Pleader appearing for the petitioners vehemently contended that the finding of the Tribunal is based on erroneous considerations inasmuch as the Tribunal has over stepped its jurisdiction and it ought not to have suggested for punishment, which is beyond the purview of the Tribunal. The decision relied upon by the Tribunal in Nagaraj Shivrao Karjagi v. Syndicate Bank Head Office, Manipal and Another[1] is not applicable to the facts of the instant case and the factual matrix of that case stands on a different footing. The advice of Central Vigilance Commission is binding on the authorities in view of the directives issued by the successive Chief Executives of the Bank. The learned Government Pleader further contended that the earlier decision of stoppage of two increments with cumulative effect was taken, but the same was not communicated to the respondent, which is an inter departmental correspondence. Unless the order is served and communicated, he cannot rely upon any inter departmental correspondence. It is always open to the department to reconsider the matter and take further advise from the Vigilance Commission. The matter was referred to the Vigilance Commission and ultimately, the Vigilance Commission has suggested for removal of the respondent from his service and that punishment was set aside by the Tribunal erroneously. The learned Government Pleader relied upon the judgment in Sunil Kumar Banerjee v. State of W.B and others[2], wherein the Supreme Court held as follows:- “We think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views on the very same material.” On the other hand, the learned counsel for the respondent Sri J.R.Manohar Rao submitted that under the CCA Rules, the Disciplinary Authority has to take independent decision and the advice of the Vigilance Commission is not contemplated. It is only the Disciplinary Authority which has to take independent action by applying its mind with regard to the alleged misconduct and it is a quasi-judicial function and it has to be based on reasonable criteria. The function of the Vigilance Commission is to inquire into the matter and submit a report, but it cannot suggest what punishment is to be imposed on the employee, which is beyond its purview. The learned counsel for the respondent relied on the judgment of a Division Bench of this Court in Writ Petition No.11548 of 2006 wherein at para No.10, it was held as follows:- “The law laid down by the Apex Court in Nagaraj Shivarao Karjagi and the Division Bench of this Court in Mubashir Hussain (2004 (7) ALT 289 (D.B) is that, where the order of punishment is imposed by the disciplinary authority at the behest of and at the dictates of the Vigilance Commission, such an order is vitiated on the ground that the disciplinary authority had abdicated its powers and had failed to apply its mind independently to the facts and circumstances of the case. The order of the Tribunal, setting aside the order of punishment imposed by the disciplinary authority, does not call for interference.” Now the issue that arises for consideration is whether the Tribunal has committed any jurisdictional error in suggesting the punishment other than the punishment imposed by the Disciplinary Authority. We have perused the record. In this particular matter, no doubt a decision was taken earlier awaiting the report of the Vigilance Commission. But, however, subsequently, the decision was taken pursuant to the advice of the Vigilance Commission for imposing major punishment of removal from service on the respondent. It is need less to mention that the Disciplinary Authority is a quasi-judicial authority and it has to exercise its powers independently without being influenced by the decision of the Vigilance Commission. It may be one thing to say that the Disciplinary Authority had taken into consideration the advice of the Central Vigilance Commission, while issuing the order of punishment on the basis of the material placed before it and upon application of its own mind, but, it is another thing to say that it abdicates its statutory power to the Central Vigilance Commission and has passed the order of punishment. Having regard to the facts and circumstances of the case, it is seen that the Disciplinary Authority taking advice of the Central Vigilance Commission has imposed the major punishment of removal from service. Being a quasi judicial, the Disciplinary Authority has to act and take a decision independently. In the circumstances, we deem it appropriate that the Tribunal has committed a jurisdictional error in suggesting the punishment of stoppage of two increments with cumulative effect instead of dismissal from service. That portion of the order is hereby set aside and the matter is remitted to the Disciplinary Authority to consider the matter afresh within a period of six weeks from the date of receipt of a copy of this order. In the circumstances, the writ petition is allowed-in- part. No order as to costs. _______________________________ JUSTICE GHULAM MOHAMMED __________________________ JUSTICE SANJAY KUMAR Date:02.03.2009 mrb [1] AIR 1991 SUPREME COURT 1507 [2] AIR 1980 SUPREME COURT 1170