THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE G.CHANDRAIAH W.P.No.5439 of 2004 Date of Order: 16-11-2009 Between: 1.The Commissioner of Prohibition & Excise, Andhra Pradesh, Hyderabad and others. …Petitioners And G.Prakash …Respondent The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE G.CHANDRAIAH W.P.No.5439 of 2004 Oral Order: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. By means of filing this writ petition under Article 226 of the Constitution the petitioners herein obtained a Rule from this Court against the respondent to show cause why the order dated 24-09-2003 made in O.A.No.1513 of 1993 on the file of Andhra Pradesh Administrative Tribunal be not quashed. 2. The respondent/applicant was promoted as Excise Sub- Inspector in 1981. While working as Arrack Depot Manager at Utnoor from 26-03-1983 to 15-04-1985, basing on the audit report of the Accountant General of Andhra Pradesh for the years 1984-85 and 1985-86, it was alleged that he did not account for two consignments of arrack received at his depot on 15-12-1984 and 16-02-1985 to the tune of 3,100 and 3,600 bulk liters respectively. Basing on the said allegation the Excise Superintendent, 3rd petitioner herein, framed two charges against the applicant on 09-01-1988 and also lodged a compliant to the police for taking action against him for misappropriation of liquor. On which basis a case in Crime No.19 of 1988 was registered by the Station House Officer, Utnoor. On receipt of the charge memo, the respondent/applicant submitted his explanation on 09-02-1988. 3. When the departmental enquiry is pending, the Excise Superintendent—3rd petitioner passed an order of recovery of the amount from the applicant under the provisions of Revenue Recovery Act. Due to domestic problems, the respondent/applicant proceeded on leave from 01-04-1988 after submitting leave application in the office of the Inspector of Excise, Bellampally. The Deputy Commissioner of Excise—2nd petitioner, based on the complaint of the Excise Superintendent—3rd petitioner, by proceedings dated 12-04-1988 placed the applicant under suspension. The said suspension order was challenged before the Andhra Pradesh Administrative Tribunal where the Tribunal directed the authorities to review the order. While so, the Excise Superintendent—3rd petitioner framed a third charge against the applicant by proceedings dated 05- 05-1988 for unauthorized absence without applying leave. After conducting an enquiry into the charges levelled, the Deputy Commissioner of Excise—2nd petitioner issued a show cause notice as to why the applicant should not be dismissed from service for misappropriation. While issuing the show cause notice, the 2nd petitioner directed the 3rd petitioner to take steps for recovery of the amount. On service of show cause notice when the applicant renewed his request for supply of copies of statements recorded by the 3rd petitioner on 01-03-1988, he (applicant) was asked to make a representation to the 2nd petitioner, being the disciplinary authority. The applicant made a detailed explanation on 06-03-1989. Being not satisfied with the explanation offered by the applicant, he was dismissed from service. Therefore, he filed O.A.No.625 of 1989 which was rejected by the Tribunal stating that the respondent/applicant has not exhausted the remedy of appeal available under Rule 20 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. On rejection of O.A. he filed appeal before the Commissioner of Excise—1st petitioner herein, who by order dated 26-10-1991 partly allowed the appeal, ordering that the respondent/applicant be permanently reverted to the post of Junior Assistant in which post he will continue till his retirement. By the same order the Commissioner directed the Deputy Commissioner of Excise—2nd petitioner to issue charge memo to N.Rajanna, Excise Sub-Inspector and also to Sarweshwarnath for recovery of the amount. 4. Questioning the said order respondent/applicant filed the above O.A. The Tribunal after an elaborate discussion into the charges, explanation offered by the respondent/applicant and also the evidence adduced during the course of enquiry held that the report of the Enquiry Officer discloses that the Officer mainly rely on the fact that the audit party of the Accountant General conducted audit of records of Government Arrack Depot, Utnoor for the years 1984-85 and 1985-86 and found that two consignments dated 15-12-1984 and 16-02-1985 of 3,100 and 3,600 bulk liters respectively sent to Government Arrack Depot, Utnoor by Government Distillery, Kamareddy have not been accounted for and delinquent all along been complaining that he has not been furnished copies of relevant documents nor the audit report on which basis charges were framed, but local audit report of the receipt account of the Government Arrack Depot, Utnoor for the years 1984-85 and 1985-86 under the signatures of Deputy Accountant General has been furnished towards the end of the hearing in the Tribunal. The Tribunal after going through the Enquiry Officer’s report, which discloses that the above two consignments were not accounted for in the stock account of 1984-1985 and the total cost of such arrack has been mentioned as Rs.44,220/-. The report further states that when the said omission was brought to the notice, it was replied that detailed investigation would be conducted; it is obvious that the documents examined by the auditors were the correspondence between the Distillery at Kamareddy and the Arrack Depot which reveals that the said arrack was dispatched from the distillery and that stock was not disclosed when review of the accounts of the arrack depot was taken up. Further, the admission of successor of the delinquent, Rajanna, that he has received the stocks which are in dispute and he has attested the entries in respect of all these stocks in the registers produced by the delinquent, clearly discloses that stock was handed over to Rajanna who acknowledged receipt of the same. But the Enquiry Officer dismissed his admission stating that it seems Rajanna has tried in vain to build up a false record to save the delinquent officer for which action has to be taken separately against Rajanna, which clearly discloses that the respondent/applicant was not given an opportunity to defend him during the course of enquiry. Holding so the Tribunal allowed the O.A. setting aside the order passed by the appellate authority. Questioning the correctness of the same the present writ petition has been filed. 5. We have heard the learned Government Pleader for Services for the petitioners and the learned counsel for the respondent. 6. Learned Government Pleader failed to prove the infirmities in appreciation of evidence by the Tribunal. The Tribunal has rightly held that the delinquent officer was not provided sufficient opportunity during the course of enquiry. Once the delinquent officer handed over the charge to Rajanna, who received the stock said to have been dispatched to Government Arrack Depot, Utnoor by Government Distillery, Kamareddy which is not accounted for and audit report also discloses that a detailed investigation will be conducted and final report will be submitted. But curiously, the said final report has not seen the light of the day about non-receipt of two consignments dispatched through Government Distillery. If that be the case, there is no sufficient evidence to establish the case about non-receipt of two arrack consignments. The entire conclusion reached is based on the correspondence between the Government Distillery, Karmareddy and the Arrack Depot, Utnoor showing that the stock dispatched from the Government Distillery, Kamareddy was not disclosed when the review of the accounts of arrack depot was taken up. 7. In view of the same, the impugned order passed by the Tribunal do not suffer from any manifest illegality in appreciation of the findings recorded by the disciplinary authority and also any infirmities warranting interference by this Court under Article 226 of the Constitution. 8. The writ petition fails and it is accordingly dismissed. No costs. _________________ A.GOPAL REDDY, J. _______________ G.CHANDRAIAH,J. 16-11-2009 Murthy