IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 2889 of 2009 Between: Md.Raheemuddin S/o.Md. Zainuddin Grampanchayat, Sarapaka, Khammam District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, rep. by its Principal Secretary, Panchayat Raj & Rural Development (VIG.III/A) Department, Secretariat Buildings, A.P., Hyderabad. 2 The Commissioner of Panchayat Raj & Rural Employment, Urdu Hall Lane, Himayathnagar, A.P., Hyderabad. 3 The District Panchayat Officer, Khammam District. .....RESPONDENT(S) 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 to issue a writ in the nature of Certiorari or any other appropriate writ, order or direction by calling for records relating to the proceedings of the 1st respondent bearing G.O.Ms.No.402, Panchayat Raj & Rural Development (Vig.III/A) Department, dt. 25.8.2007 and orders of Hon'ble A.P. Administrative Tribunal, dt. 27.11.2008, in O.A.No.6829 of 2007 and quash the same with all consequential benefits by declaring the same as illegal, arbitrary and erroneous and to pass such other order or order. Counsel for the Petitioner:MR.S.GOPAL RAO Counsel for the Respondent No.: GP FOR SERVICES II The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed with the following prayer: “For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon’ble Court may be pleased to issue a writ in the nature of Certiorari or any other appropriate writ, order or direction by calling for records relating to the proceedings of the first respondent bearing G.O.Ms.No. 402, Panchayat Raj and Rural Developnet (Vig.III/A) Department, dated 25.8.2007 and orders of Hon’ble A.P. Administrative Tribunal dated 27.11.2008, in O.A.No. 6829 of 2007 and quash the same with all consequential benefits by declaring the same as illegal, arbitrary and erroneous and to pas such other order or orders as this Hon’ble court may deem fit and prosper in the circumstances of the case.” O.A. was filed by the petitioner-applicant under Section 19 of the Administrative Tribunals Act, 1985 calling for the records relating to the proceedings dated 25.8.2007 of the first respondent and to set aside the same by declaring the same as illegal. Brief facts of the case are that the petitioner-applicant while he was working as Executive Officer, Gram Panchayat, Siriput (T), Adilabad District, was implicated in ACB case falsely though he neither demanded nor accepted any bribe amount during the month of December 2001. Subsequently, the matter was referred to the Tribunal for disciplinary proceedings, Hyderabad in TDP Tribunal Enquiry Case No. 115 of 2004 and the following charge was framed against the petitioner-applicant: “CHARGE: That you Sri Mohd Raheemuddin, while working as Executive Officer, Gram Panchayat Sirpur (T) Adilabad District were actuated by corrupt motive and in abuse of your official position demanded and accepted bribe of Rs. 500/- on 1.12.2001 at your office from the complainant Sri Abdul Jameel, resident of Sirpur (T), Adilabad District for doing official favour i.e., for issuing permission letter for the tap connection and that there by you are guilty of misconduct under Rule 3 of A.P. Civil Service (Conduct) Rules, 1964 r/w Rule 2(b) of A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989 framed under the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act 1960 as amended in 1993.” It is submitted that the complainant, who is not a trustworthy person developed grudge against the petitioner-applicant as he opposed grant of permission for construction of House in Plot No. 29 Survey No. 538 as it was not acquired by him or his predecessors. On 1.12.2001, the complainant came to the petitioner-applicant and kept the amount in his pocket forcibly and caught hold the hands of the applicant-petitioner, so that a positive result could be achieved for phenolphthalein test. In spite of denial by the petitioner-applicant with regard to demand and acceptance of the bribe amount, the matter was referred to the Tribunal for Disciplinary Proceedings, Hyderabad and without conducting an enquiry in proper manner a report has been submitted with a finding that the charges are held proved, on mere presumptions and assumptions, though it is settled law in a disciplinary matter that a finding must be given based on evidence, but the enquiry authority cannot come to conclusion that the charge is so perverse, since it is clearly mentioned in the report that witnesses might have committed some mistake in recollecting the evidence which happened long back and the mistakes would naturally occur while giving evidence. It is further submitted that the Tribunal for Disciplinary Proceedings had went beyond its jurisdiction and indicated the punishment of dismissal. Subsequently, the first respondent issued the impugned proceedings bearing G.O.Ms.No. 402 PR & Rd(Vig. III/A) Department dated 25.8.2007 dismissing the applicant from service basing on the recommendations made by the Enquiry authority, without considering the representation filed by the applicant. The respondents filed their counter stating that the officials of ACB received a compliant against the applicant that he has demanded an amount of Rs. 500/- as bribe for doing official favour i.e., for issuing permission order for the tap connection to the house of one Sri Abdul Jameel, resident of Sirpur town. On the above complaint, the officials of ACB have registered a case in Crime No. 9/ACB—NKR/2001 under Section 7 of Prevention of Corruption Act 1988 on 1.12.2001 in the presence of the accompanying witness and the phenolphthalein test conducted on the fingers of accused officer proved positive. The bribe amount was recovered from the shirt pocket from the accused officer and the accused officer also admitted that the complainant paid the amount to him. The Director General, ACB has recommended the matter to be placed before the Tribunal for disciplinary proceedings and furnished the part-B report to Government . The matter was referred to the Tribunal for disciplinary proceedings and the applicant was reinducted into service vide proceedings dated 6.5.2004 pending finalization of the disciplinary proceedings/criminal case against him. The Government have examined the report of the Tribunal for disciplinary proceedings and while furnishing a copy of the enquiry report to the applicant, the Government directed the applicant to submit his explanation to the Memo dated 12.4.2007. The applicant submitted his representation to the said Memo. After careful examination of the explanation of the applicant and the report submitted by the Tribunal for disciplinary proceedings, the Government decided to impose the penalty of dismissal from service and accordingly issued orders vide G.O.Ms.No. 402 PR & RD (Vig. III/A) Department dated 25.8.2007. The Tribunal for Disciplinary Proceedings after examining the several witnesses and also conducting detailed enquiry came to the conclusion that the applicant was guilty of the charge. Heard the learned counsel appearing for both sides and also perused the impugned order. The learned Government Pleader produced the record. We have perused the same and the letter dated 29.3.2007 viz., the letter addressed by Vigilance Commissioner to the Principal Secretary to Government, Panchayat & Rural Development Department , A.P. Secretariat, Hyderabad , the contents of which, reads thus: “The department’s file bearing C.No. 42591/Vig.III/A/2001 is returned. Having considered the material made available in the file, Commission accepts the report of the Tribunal for Disciplinary Proceedings dated 20.12.2006 in TEC No. 115 of 2004 and advises the department to take further action under Rule 6(2)(b) of APCS (DPT) Rules, 1989. Commission further advises the department to consider the representations of the CO, if any, on the findings of the TDP and dismiss him from service. Receipt of the letter together with file may please be acknowledged and action taken in the matter may be intimated to the Commission.” The learned counsel appearing for the petitioner vehemently contended that the Tribunal for Disciplinary Proceedings has committed serious infirmity and it went beyond its jurisdiction and indicated the punishment of dismissal and subsequently, the first respondent issued impugned proceedings dated 25.8.2007 dismissing the petitioner from service basing on the recommendations made by the enquiry authority without considering the representation filed by the applicant. He further contended that the disciplinary authority merely acted on the advice tendered to it and the punishment suggested by the Enquiry Officer was accepted without application of mind independently exercising his powers though there is duty cast upon him to act independently taking into account the totality of the circumstances and impose the award of punishment. In this case, it is lacking. He has drawn our attention to the judgment of the Supreme court reported in STATE OF UTTARANCHAL AND OTHERS VS. KHARAK SINGH[1], wherein it was held as under: “Though there is no specific bar in offering views by the enquiry officer, in the case on hand the enquiry officer exceeded his limit by saying that the officer has no right to continue in government service and he has to be dismissed from service with immediate effect. Awarding of appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon nature and gravity of proved charge/charges and other attended circumstances. The officer who inspected and noted shortfall of trees, himself conducted enquiry arrived at a conclusion holding the charges as proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the principles of law on the subject.” Though there is specific bar, the learned Government Pleader contended that the factual matter in this particular case is not applicable to the facts of the present case where the applicant has demanded and accepted a bribe of Rs. 500/- from the compliant on 1.12.2001 in the presence of the accompanying witness and the phenolphthalein test conducted on the fingers of accused officer proved positive. In our considered view, the witness should not be the enquiry officer but in the present case, apart from the Tribunal for Disciplinary Proceedings had went beyond its jurisdiction and indicated the punishment of dismissal, matter was referred to the Vigilance Commissioner under Rule 6(2)(b) of APCS (DPT) Rules , 1989. Thereafter, the Tribunal for Disciplinary Proceedings independently exercised its power with regard to the nature and gravity of the charge, which was held, proved by the Enquiry Officer viz., the Tribunal for Disciplinary Proceedings. In the circumstances, we do not find any procedural irregularities or any error of jurisdiction warranting our certiorari jurisdiction so as to nullify the finding arrived at by the Tribunal. The finding arrived at by the Tribunal is just and reasonable and the Writ Petition fails and is liable to be dismissed. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ SANJAY KUMAR , J Dt. 05.03.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, rep. by its Principal Secretary, Panchayat Raj & Rural Development (VIG.III/A) Department, Secretariat Buildings, A.P., Hyderabad. 2 The Commissioner of Panchayat Raj & Rural Employment, Urdu Hall Lane, Himayathnagar, A.P., Hyderabad. 3 The District Panchayat Officer, Khammam District. 4. 2 CCs to G.P. for Services-II, High Court of A.P. Buildings, Hyderabad. 5. 2 CD copies [1] (2008) 8 SUPREME COURT CASES 236