IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO : 5150 of 2004 Between: P.Narayana Rao ..... PETITIONER AND The Government of A.P., Rep. By its Principal Secretary, Environment, Forests, Science and Technology Dept., Secretariat, Hyderabad & Another. .....RESPONDENTS The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No. 5150 OF 2004 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioner obtained a rule from this Court calling upon the respondents to show cause as to why a writ in the nature of certiorari should not be issued under Article 226 of Constitution of India calling for the records in O.A.No.381 of 1998, dated 01.12.2003 on the file of A.P. Administrative Tribunal, Hyderabad in upholding the validity of the enquiry officer’s report and to quash the same. Petitioner-P.Narayana Rao while working as Forest Range Officer was served with two charge sheets with the following allegations: Charge sheet No.1: (R.C.No.15512/78/M8, dt.28.11.1987) “(i) Acquiring disproportionate assets to his legal income non-obtaining permission from the competent authority required under Rule 9 of A.P. Civil Services (Classification, Control and Appeal) Rules, 1991; (ii) Ill-treating his subordinate abusing their (sic. them) and thereby misusing his official position; (iii) Demanding and accepting bribe amount from private persons for issuing permits while he was Forest Range Officer, I/c Govt. Timber and Bamboo Depot, Koyyalagidem which is against the conduct rules and leaving moral and vertical value.” Charge Sheet No.2: (Rc.No.2261/91/M2, dt.27.4.1992) “Neglect of duty resulting to destruction of Teak Plantation and other timber trees in Polavaram Range of Eluru Division.” The Conservator of Forests, Rajahmundry, who was appointed as enquiry officer submitted his report to the Disciplinary Authority- Principal Chief Conservator of Forests, Hyderabad on 10.5.1994 holding that all the charges contained in charge sheet No.1 were held not proved. With regard to the allegation contained in charge sheet No.2, which is the subject-matter of the present writ petition, the enquiry officer keeping in view of the evasive tendency of the petitioner and his non- cooperation in participating in the enquiry, submitted his report with ex parte findings that for all practical purposes the charges levelled against the petitioner are proved beyond reasonable doubt. However, the Disciplinary Authority-Principal Chief Conservator of Forest disagreed with the findings of the enquiry officer on charge sheet No.1. The petitioner submitted his explanation to the first charge sheet while he was in service, but failed to submit explanation to the second charge sheet. The Principal Chief Conservator of Forest as well as the Government held these allegations as proved and thus, they disagreed with the findings of the enquiry officer on charge sheet No.1. The Government after examining the matter and the report of the enquiry officer, provisionally decided to cut 35% pension and directed the Principal Chief Conservator of Forests to issue show-cause notice to the petitioner vide G.M.No.6649/For.IV/91-10, dated 25.6.1996. Accordingly, the Principal Chief Conservator of Forests issued a show- cause notice to the petitioner on 5.7.1996 indicating the provisional decision of the Government, pursuant to which, the petitioner submitted his explanation on 14.9.1996. On examining the explanation of the petitioner and after consulting the A.P. Public Service Commission, the Government through G.O.Ms.No.119, Environment, Forests, Science & Technology (FOR.IV) Department, dated 27.09.1997 ordered punishment of 35% cut in the pension payable to the petitioner be imposed on permanent basis. Challenging the said G.O., the petitioner filed an appeal in O.A.No.381 of 1998 before the A.P. Administrative Tribunal, Hyderabad. The Tribunal by the impugned order with regard to the charges contained in the charge sheet No.1 held that the entire record shows that the Disciplinary Authority as well as the Government held the allegations contained in charge sheet No.1 as proved by disagreeing with the findings of the enquiry officer but failed to furnish the statement of reasons on what basis the Disciplinary Authority disagreed with the findings of the enquiry officer as contemplated under Rule 21(2) of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 and thus failed to follow the mandatory provision. The Tribunal observing that the Disciplinary Duthority failed to furnish the basis for the disagreement with the findings of the enquiry officer while holding that the allegations contained in the first charge sheet were held proved, held that the first set of allegations contained in the first charge sheet are not at all proved and accordingly set aside the same. Coming to the second charge sheet which deals with the alleged negligence on the part of the petitioner in performing his duties which allegedly resulted in causing loss to the Government to a tune of Rs.7,49,069.35 ps., a detailed observation was made by the Tribunal. It was observed that the Conservator of Forest, Social Forestry Circle, Vijayawada in his report, dated 10.5.1994 submitted to the Principal Chief Conservator of Forest, Hyderabad stated that a charge sheet was issued to the petitioner on 27.4.1992 which was acknowledged by him on 11.5.1992 and by letter, dated 1.6.1992 petition sought permission for perusal of the records on 4.6.1992 and on 5.6.1992. Accordingly, the petitioner was permitted to peruse the record on 4.6.1992 and 5.6.1992 and later the petitioner submitted a certificate to the effect that he had perused all the records available in connection with the charge sheet on 4.6.1992 and 5.6.1992 and no further record is required for perusal, and therefore, he was directed to submit his explanation. But, the petitioner in his letter, dated 16.6.1992 requested the enquiry officer that he wants to go through some more records and accordingly, permission was granted and he attended the office of Conservator of Forests on 30.6.1992 and gave letter to the effect that he had perused all the records available in connection with the charge sheet and he did not require any more records for perusal. Thereupon, the petitioner submitted his explanation on 10.7.1992 duly filling in the prescribed questionnaire form and he was directed to bring his defence witnesses, if he so chooses. On 7.8.1992 the petitioner submitted his explanation which is preliminary in nature and therefore, he was again permitted to attend the office of the Chief Conservator of Forests on 18.8.1992 for taking copies of the relevant records, but the petitioner did not attend the office on the said date and therefore, he was given another opportunity to attend the office on 19.9.1992 for taking relevant records, however, even on that date, he did not appear before the enquiry officer, but submitted another preliminary explanation on 16.10.1992. Later the petitioner did not turn up for enquiry on the prescribed dates nor did he choose to bring any defence witnesses. In spite of that, the enquiry officer provided another opportunity to the petitioner to appear for the enquiry at Jangareddygudem on 17.8.1993 and though the petitioner acknowledged the receipt of notice on 9.10.1993 did not turn up for enquiry. Another opportunity was given to the petitioner to attend the enquiry on 20.10.1993 at Vijayawada, but the petitioner addressed a letter on 19.10.1993 requesting the enquiry officer to conduct the enquiry at Jangareddygudem, to which, the petitioner was informed that the enquiry would be held only at Vijayawada on 15.11.1993 and he was called upon to attend the same. Therefore, the enquiry officer having felt that in spite of giving sufficient opportunity the petitioner failed to participate in the enquiry, after going through the record, submitted his report holding that the preliminary explanation submitted by the petitioner contain only irrelevant issues and he failed to utilize the opportunity given to defend his case and with ex parte findings held that the allegations in the second charge sheet were proved against the petitioner. On receipt of both the reports on charge sheet Nos.1 and 2, Principal Conservator of Forests on 5.7.1996, as directed by the Government, proposed 35% cut in the monthly pension of the petitioner stating that both the charges were proved and while furnishing the show- cause notice, the petitioner was also given a copy of the report of the enquiry officer regarding the two charges, to which, the petitioner submitted his explanation on 14.9.1996. Considering the said circumstances, the Tribunal held that the petitioner was given more than adequate opportunity to defend himself, but he had not utilized the number of opportunities and therefore, the second charge is established. However, as the impugned orders were issued based on the conclusion of the Government that the charges levelled in both the charge memos were held proved, the Tribunal remanded the matter to the Government to reconsider the matter in the light of the findings arrived by it with regard to the allegations levelled in charge sheet No.1 which were held not proved and only the second charge sheet relating to the negligence of the petitioner is proved and accordingly, directed the Government to issue revised orders proportionate to the guilt of the petitioner established regarding the allegation made in the second charge sheet only. Accordingly, the O.A. was partly allowed by order, dated 1.12.2003. It is that order which is challenged in the present writ petition by the petitioner to the extent of the findings of the Tribunal confirming the charge levelled in the second charge sheet. Learned counsel for the petitioner would contend that the findings of the enquiry officer holding the allegations in the second charge sheet were proved is based on no evidence and the said findings were arrived by the enquiry officer only on the ground that the petitioner failed to attend the enquiry. Absolutely, no findings were recorded on the basis of which the second charge sheet was held proved and therefore, the finding of the enquiry officer suffers from surmises and conjectures. The disciplinary authority as well as the Government simply accepted the said findings and the Tribunal also committed the same error in confirming the said findings and therefore, the impugned order is liable to be set aside to that extent. The learned Government Pleader for Services-I sought to sustain the impugned orders and prayed for dismissal of the writ petition. Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 prescribes the procedure for imposing major penalty which requires an elaborate procedure to be followed. Rule 20 (9) (c) requires the inquiring authority to call upon the Government Servant whether he admits the genuineness of any of the documents copies of which have been furnished to him and if he admits the genuineness of any document it may be taken as evidence without any proof by the concerned witness. Rule 20 (10) (a) provides that on the dates fixed for recording the evidence, oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority; and as per Rule 20 (10) (b), such evidence shall be recorded as far as possible on day- to-day basis till the evidence on behalf of the Disciplinary Authority is completed. Rule 20(10)(c) adumbrates examination of witnesses by the Presenting Officer and their cross-examination by the Government Servant. In the entire record of the Disciplinary Authority as well as the findings recorded by the Tribunal, it is nowhere stated that the documents were produced by the Presenting Officer on behalf of the department, on which basis the enquiry officer concluded the second charge held proved. In his report, dated 10.5.1994, the enquiry officer only referred about the steps taken by him on being appointed as enquiry officer to hold enquiry against the petitioner, however, there was an observation that in view of the evasive tendency and non-cooperation of the petitioner, he did not think that the petitioner would give a final and proper explanation to the charges and in his opinion, there are no prospects of getting the relevant explanation from the petitioner. The circumstances of petitioner not submitting his explanation to the charges and also not attending the enquiry made the enquiry officer to believe that the charges levelled against him had been proved and accordingly, he submitted his report with ex parte findings holding that for all purposes, the charges levelled against the petitioner were proved beyond reasonable doubt and submitted records numbering 23. It is nowhere stated that the petitioner was informed that his failure to attend the enquiry, the enquiry officer would proceed with the enquiry ex parte nor the report discloses about the recording of evidence and marking of the documents by the Presenting Officer on which basis the charges were held to be proved. Though the petitioner specifically pleaded in para 6(g) of the application before the Tribunal that the enquiry officer’s report was not furnished in full and it was incorporated with the show- cause notice and failure to furnish the documents on which basis the enquiry officer concluded that the charge held proved amounts to denial of reasonable opportunity and he was prevented from submitting his explanation, the same has not been denied specifically in the counter affidavit except stating that the remarks put forth in previous paras would hold good. But the remarks in previous paras in the counter affidavit does not deal with the aspect of non-supply of material documents. Further in the entire report of the enquiry officer, nowhere it is stated that the charges were held proved on the basis of the documents that were marked and produced by the Presenting Officer on behalf of the Disciplinary Authority, but the enquiry officer simply concluded that the petitioner failed to submit final explanation and failed to attend the enquiry and held the charge proved on the presumption that the petitioner had no explanation to offer. The charges framed against a delinquent officer cannot be held proved on the basis of mere presumptions drawn but on the basis of material produced and proved by the Presenting Officer on behalf of the Disciplinary Authority. In view of the same, the impugned order passed by the Disciplinary Authority as well as the Government holding the charges contained in second charge sheet as proved and as confirmed by the Tribunal is not supported by any evidence and the same is accordingly set aside. In the result, the writ petition is allowed. No order as to costs. _________________ (A. GOPAL REDDY, J.) ____________________ (SAMUDRALA GOVINDARAJULU, J.) NOVEMBER 24, 2009 TSR