THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD W.P.NO.17139 OF 2000 %18.01.2010 #Ch.Anjaiah ...APPELLANT VERSUS $Government of AP, rep. by its Revenue Secretary, Revenue Department, Secretariat, Hyderabad. ...RESPONDENT < GIST: > HEAD NOTE: !Counsel for Appellant: Sri Sudhakar Kulkarni ^Counsel for Respondent: G.P. for Services ? Cases referred THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD W.P.No.17139 of 2000 JUDGMENT: The petitioner who has been working as a Junior Assistant in the revenue unit of the respondent filed this writ petition under Article 226 of the Constitution of India, inter alia, assailing the orders of the Andhra Pradesh Administrative Tribunal in O.A.No.6492 of 1994, dated 10th December 1999, dismissing his application filed under Section 19 of the Administrative Tribunals Act, 1985 wherein he assailed the impugned proceedings issued by the respondent No.1 dated 23-8- 1993 finally confirming in the hierarchy of remedies, the imposition of punishment against him by stoppage of two annual grade increments with cumulative effect. Briefly the facts led to the present proceedings are that the petitioner who is an ex-service man was appointed as Junior Assistant on 29-6-1984 after due selection made through the process of Andhra Pradesh Public Service Commission, and accordingly he was posted as Village Officer. In pursuance of a complaint stated to have been made by the M.L.A of Ramannapet and Sarpanch of Mothkur against the petitioner alleging tampering of the entries in the pahanis, the Revenue Divisional Officer, Bhongir on 1-8-1990 visited the Mandal Revenue Office, Mothkur where the petitioner is working. Thereafter, the said Revenue Divisional Officer addressed a letter dated 6-8-1990 to the Collector observing that entries in the pahanis for the year 1960- 61 to the effect of inclusion of Sri K.Sathaiah son of Chinna Ramulu against the land in Sy.Nos.415 and 460 with different ink and hence there is a tampering of record and sought for an enquiry. Thereupon, the Collector, Nalgonda appointed the then Grain Purchasing Officer, Nalgonda as Enquiry Officer on 28- 8-1990. The petitioner was placed under suspension pending enquiry on 12-10-1990. The enquiry officer vide Memo No.GP-2/22-90, dated 9-4-1991 framed two charges viz., Charge No.1 that the petitioner submitted a note on the application filed by Kalvala Narsimhulu son of Sathaiah stating that as per the revenue records in the pahanis for the years 1956-57, 1957-58, 1963-64 and 1967-68 the said applicant’s name is appearing in pattedar column against the land in Sy.Nos.415 and 460, however, as per the pahanis of the said years the name of the application does not find against the said survey numbers. Thus, therefore the petitioner has submitted a misleading note resulting in issuance of copies of the pahanis for the above years to a person who is not entitled to take them, secondly, the Charge No.2 was that there is a failure on the part of the petitioner in the note dated 16-10-1989 pointing out such tampering, and therefore, it clearly indicates that the said tampering was got done in the pahanis by himself or with his knowledge. On 29-4-1991 the petitioner submitted explanation denying all the allegations in the charges. Thereafter, an enquiry was conducted by the said enquiry officer and the said officer submitted a report holding that in respect of charge No.1 since there is no specific denial by the petitioner except trying to throw the responsibility on the higher officers, and therefore, it was his legitimate duty to verify the records properly and submit correct note to his superior which was not done, hence, the said charge stood proved. However, in regard to the second charge, it was observed by the enquiry officer that there is no material evidence to establish that the said tampering was done by the petitioner, and in the absence of any such positive evidence the charge becomes doubtful. Further taking into consideration the inexperience of the petitioner, the enquiry officer gave the benefit of doubt to the delinquent on the said charge. Ultimately, it is only on the charge No.1 the finding was held partially against him. Thereupon, the Collector issued a show-cause notice on 28-7-1991 as to why he should not be removed from the service. The said show cause notice was served on the petitioner on 14-8-1991. On 3-9-1991 the petitioner submitted the explanation and ultimately the Collector by proceedings dated 12-1-1992 passed the orders of punishment of withholding two annual grade increments, one with cumulative effect and the other one without cumulative effect. Challenging the same, the petitioner filed an appeal before the Commissioner of Land Revenue, Hyderabad and the same was dismissed on 29-9-1992. The further appeal preferred by the petitioner to the Government was rejected on 23-8-1993 by the impugned memo which has been assailed before the Andhra Pradesh Administrative Tribunal, in the said O.A.6492 of 1994, which was dismissed. Hence, the writ petition. Heard Sri P.R.Prasad, the learned counsel appearing for the petitioner and the learned Government Pleader for Services-II. On a conspectus of the submissions made from both sides where the main attack on behalf of the petitioner is in regard to the correctness of the procedure adopted in the enquiry and there being a failure on the part of the authorities to provide him the proper opportunity or even to produce any evidence or material in support of the charges, the question which boils down for consideration is as to whether on the facts and circumstances there is a failure, especially, the enquiry officer in holding a proper enquiry as contemplated under the Rules and if there is any denial of proper opportunity to the petitioner? In support of the aforesaid contention the main provision of law, which has been relied is Rule 19 (2) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, which reads as follows: “Rule 19 (2) :- A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (v) of Rule 9 or in Rule 10 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in [clauses (vi to 9x) of Rule 9 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.” The above rule necessarily has to be read along with rule 20 in Part-V of the same Rules, which reads as follows: [Rule 20. Procedure for imposing major penalties :- (1) No order imposing any of the penalties specified in clauses (vi) to (x) of Rule 9 shall be made except after an enquiry held, as far as may be, in the manner provided in this Rule and Rule 21 or in the manner provided by the Andhra Pradesh Civil Services (disciplinary Proceedings Tribunal) Act, 1960 or the Andhra Pradesh Lokayukta and Upa-lokayukta Act, 1983, where such inquiry is held under the said Acts. (2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government Servant, it may itself inquiry into, or appoint under this Rules, as the case may be, authority to enquire into the truth thereof. Explanation:- Where the Disciplinary Authority itself holds the inquiry, any reference to the Inquiring Authority shall be considered as a reference to the Disciplinary Authority. (3) Where it is proposed to hold an inquiry against a Government Servant under this Rule and Rule 21, the Disciplinary Authority or the Cadre Controlling Authority who is not designated as Disciplinary Authority and who is subordinate to the Appointing Authority can draw up or cause to be drawn up- (i) The substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge. (ii) A statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) A Statement of all relevant facts including any admission or confession made by the Government Servant. (b) A list of documents by which and a list of witness by whom, the articles or charge are proposed to be sustained. (4) The Disciplinary Authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and copies of the said documents and statements of the said witnesses and shall require the Government Servant to appear before the Disciplinary Authority on such day and such time not exceeding ten working days and submit a written statement of his defence and to state whether he deserves to be heard in person. (5) (a) On the date fixed for appearance, the Government Servant shall submit the written statement of his defence. The Disciplinary Authority shall ask the government servant whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Disciplinary Authority shall record the plea, sign the record and obtain the signature of the Government Servant thereon. The disciplinary authority shall record findings of guilty in respect of those articles of charge to which the Government servant pleads. Where the Government servant admits all the articles of charge, the disciplinary authority shall record its findings on each article of charge after taking such evidence as it may think fit and shall and shall act in the manner laid down in Rule 21. (b) Where the Government Servant appears before the Disciplinary Authority and pleads not guilty to the charges or refuses or omits to plead, the Disciplinary Authority shall record the plea and obtain signature of the Government Servant thereon and may decide to hold the inquiry itself or if it considers necessary to do so appoint an Inquiring Authority for holding the inquiry into the charges and also appoint a Government Servant or a retired Government Servant or a legal practioner as Presenting Officer to present the case in support of the articles of charge and adjourn the case to a date not exceeding five days. (c) On the day so fixed, the disciplinary authority shall serve copies of the orders appointing the inquiring authority and the Presenting Officer on the Government servant and inform him that he may take the assistance of any other Government servant to present the case on his behalf, but he may not engage a retired Government servant or a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is one such, or, the disciplinary authority, having regard to the circumstances of the case, so permit. Provided that no Government servant dealing in his official capacity with the case of inquiry relating to the person charged or any officer to whom an appeal may be preferred shall be permitted by the inquiring authority to appear, on behalf of the person charged before the inquiring authority. Provided further that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case and for reasons to be recorded in writing, so permits. Note (1) :- The Government Servant shall not take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case and for reasons to be recorded in writing, so permits. Note (2) :- The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the Government from time to time by general or special order in this behalf. (d) The Disciplinary Authority shall inform the Government Servant to submit within five days a list of documents, which he requires to be discovered or produced by Government for the purpose of his defence indicating the relevance of the documents so required. (e) The Disciplinary Authority may for reasons to be recorded in writing refuse to requisition such of the documents as are, in its opinion, not relevant to the case. (f) The Disciplinary Authority shall on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition. (g) On receipt of the requisition referred to in sub-rule (5) (f), every authority having the custody or possession of the requisitioned documents shall produce the same before the Disciplinary Authority. Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any such documents would be against the public interest or security of the State, shall submit the fact to the Head of Department or to the Secretary of the Department concerned for a decision in the matter. Such decision shall be informed to the Disciplinary Authority and where the decision is to withhold production of all or any of such documents, the Disciplinary Authority shall on being so informed communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents and where the decision is against withholding the production of all or any of such documents, every Authority having the custody or the possession or the possession of such requisition documents shall produce the same before the disciplinary authority. (6) Where the Government Servant to whom a copy of the article or charge has been delivered does not submit the written statement or defence on or before the date specified for the purpose or does not appear in person before the Disciplinary Authority or otherwise fails or refuses to comply with the provisions of this rule, the Disciplinary Authority may decide to hold the inquiry ex-parte or if it considers necessary so to do, appoint an Inquiry Authority for the purpose. (7) (a) The Disciplinary Authority shall, where it is not the Inquiring Authority, forward to the Inquiring Authority- (i) a copy of the articles of charge and the statement of the imputation of misconduct or misbehaviour; (ii) a copy of the written statement of defence, if any submitted by the Government Servant; (iii) copies of the Statements of Witnesses, referred to in sub-rule (3); (iv) copies of documents referred to in sub-rule (3); (v) evidence proving the delivery of copies of the documents referred to in sub-rule (3) to the Government Servant; and (vi) a copy of the order appointing the “Presenting Officer’. (b) The Disciplinary Authority shall also forward to the Inquiring Authority documents received under clause (g) of sub-rule (5) as and when they are received.] (8) After receiving the documents mentioned under sub-rule (7) (a), the Inquiring Authority shall issue a notice in writing to the Presenting Officer and also to the Government Servant to appear before him on such day and at such time and place specified by him which shall not exceed ten days. (9) (a) The Presenting Officer and Government and Government Servant shall appear before the Inquiring Authority on the date fixed under sub-rule (8). (b) If the Government Servant informs the Inquiring Authority that he wishes to inspect the documents mentioned in sub-rule (3) for the purpose of preparing his defence, the Inquiring Authority shall order that he may inspect the documents within five days and the Presenting Officer shall arrange for the inspection accordingly. (c) The Inquiring Authority shall 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. (d) The Inquiring Authority shall adjourn the case for inquiry to a date not exceeding ten days for production of evidence and require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charges. [(10) (a) On the date fixed for recording the evidence, the 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. (b) The evidence shall be recorded as far as possible on day-to-day basis till the evidence on behalf of the Disciplinary Authority is completed. (c) The witnesses shall be examined by or on behalf of the Presenting Officer and they may be cross examined by or on behalf of the Government Servant. (d) The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter without the permission of the Inquiring Authority. (e) The Inquiring Authority may also put such question to the witnesses as it thinks fit.] (11) (a) It appears necessary before the closure of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion allow the Presenting Officer to produce evidence not included in the list given to the Government Servant or may itself call for new evidence or recall and re-examine any witness. (b) In such case, the Government Servant shall be entitled to have a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. (c) The Inquiring Authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. Note:- New evidence shall not be permitted or called for and witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. [(12) (a) When the case for the Disciplinary Authority is closed, the Government Servant shall be required to state his defence orally or in writing as he may prefer and to submit a list of witnesses to be examined on his behalf for which purpose the case may be adjourned to a date not exceeding five days. (b) If the defence is made orally, it shall be recorded and the Government Servant shall be required to sign the record. In either case, a copy of the statement of defence and the list of defence witness may be provided to the presenting officer, if any, appointed. (c) The case shall be adjourned to a date not exceeding ten days for production of defence evidence.] (13) The evidence on behalf of the Government Servant shall then be produced. The Government Servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government Servant shall then be examined and shall be liable to cross examination, re-examination and examination by the Inquiring Authority according to the provisions applicable to the witnesses for the Disciplinary Authority. (14) The Inquiring Authority may after the Government Servant closes his case and shall, if the Government Servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him. (15) The Inquiring Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any appointed, and the Government Servant, or permit them to file written briefs of their respective cases, if they so desire. (16) (a) Where a Disciplinary Authority competent to impose any of the penalties specified in clauses (i) to (v) of Rule 9 and in Rule 10, but not competent to impose any of the penalties specified in clauses (vi) to (x) of Rule 9, has itself inquired into or caused to be inquired into the articles of any charge and that Authority, having regard to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it is of the opinion that the penalties specified in clauses (vi) to (x), of Rule 9 should be imposed on the Government Servant, that Authority shall forward the records of the inquiry to such Disciplinary Authority as is competent to impose the last mentioned penalties. (b) The Disciplinary Authority to which the records are so forwarded may act on the evidence on the record or may if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witnesses and examine, cross examine and re-examine the witnesses and may impose on the Government Servant such penalty as it may deem fit in accordance with these Rules. (17) Whenever an Inquiring Authority after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another Inquiring Authority which has and which exercises, such jurisdiction, the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor, and partly recorded by itself. Provided that if the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in’ the interest of justice, it may recall examine, cross examine and re-examine any such witnesses as herein before provided. (18) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain. (a) the articles of charge and the statement of the imputation of misconduct or misbehaviour, (b) the defence of the Government Servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor. Explanation:- If in the opinion of the Inquiry Authority, the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government Servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (ii) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which; shall include: (a) the report prepared by it under clause (i); (b) the written statement of defence, if any, submitted by the Government Servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer or Government Servant or both during the course of the inquiry; and (e) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry. On a bare reading of the aforesaid provisions, a due procedure has to be followed in respect of the enquiries conducted against a delinquent and there cannot be any dispute to the due steps in the process of an enquiry. However, it has to be seen on the facts of this case whether there is any deviation from the procedure in providing opportunity. As far as the Charge No.1 is concerned, the enquiry officer sought to proceed on the ground that there is no specific denial and the same was taken into consideration by the Tribunal. Even in this Court there is no denial to the fact that the petitioner submitted the said note. The only question is whether there is any lapse on his part in pointing out the tampering