HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 8943 OF 2010 Between: The Government of Andhra Pradesh represented by its Principal Secretary, Transport, Roads and Buildings Department, Secretariat, Hyderabad and one another ………….Petitioner AND G. veerraju s/o Hanumantha Rao and one another ………….Respondents ORDER: (Per Hon'ble Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Certiorari calling for the records relating to orders dated 13.10.2009 passed in O.A.No. 9768 of 2009 by the Andhra Pradesh Administrative Tribunal and quash the same as illegal. Brief facts of the case are that the applicant in O.A.No. 9768 of 2009 is working as Motor Vehicle Inspector. While so, a charge memo was issued to him on 5.8.2002 framing three charges, which are as under: “1. That he was indifferent while checking the vehicles when the transport constables attached to him/his private driver was indulging in the collection of illegal gratification from the drivers of the lorries to allow them free passage without check report being made out in respect there of. 2. That he is indirectly responsible for the collection of illegal gratification from the drivers of the lorries passing though the Toll gate point at Kanakadurgamma Varadhi. 3. that his conduct while checking the vehicles is unbecoming of a public servant and violative of the provisions laid down in rule 3(1) and (2) of A.P. Conduct Services (Conduct) Rules 1964.” It is stated that pursuant to the charge memo, the applicant submitted his explanation on 10.8.2002 and thereafter, an enquiry officer was appointed who submitted his report on 16.5.2003 holding the charges 1 and 2 as not proved and the third charge as proved. Basing on the enquiry report, the second petitioner-Transport Commissioner herein issued a show cause notice to the applicant-first respondent on 25.5.003 calling for his explanation as to why the punishment should to be imposed and in turn the applicant also submitted his explanation on 27.5.2003. After that the second petitioner issued another show cause notice on 22.8.2005 stating that he is differing with the findings of the Enquiry Officer for charges 1 and 2 and called for the explanation of the applicant-first respondent. For that the applicant also submitted his explanation on 3.12.2005 and a final order was issue on 8.8.2007 imposing the punishment of three increments with cumulative effect. Hence, the applicant filed an appeal before the first petitioner on 5.10.2007 and the same was rejected by the first petitioner-Government on 10.10.008 and subsequently he filed a mercy petition and the same was also rejected on 27.2.2009. Hence, the applicant-first respondent filed the OA challenging the action of the petitioners herein and the Tribunal allowed the O.A with the following observation: “In these circumstances, no reliance can be placed on the video graph evidence without examining the person who took the videography. In these circumstances, for the reasons mentioned above, the impugned orders dated 10.10.2008 of the first respondent wherein the proceedings of the second respondent dated 8.8.2007 imposing the punishment of stoppage of three increments with cumulative effect, are liable to be set aside. Accordingly, both the impugned orders of the first respondent and the second respondent dated 10.10.2008 and 8.8.2007 respectively are set aside. In view of setting aside of the punishment against the applicant, the applicant is also entitled for the consequential benefits and the respondents are directed to consider the case of the applicant for promotion to the post of RTO, if he is otherwise eligible, suitable and comes within the zone of consideration. With threes directions, the O.A is allowed.” The learned Government Pleader for Services- II, appearing for the petitioners submits that the charges are vogue and there is no list of witnesses as well as documents. Apart from that, the videographer who took video was not examined and the entire procedure including filing of charge sheet is not in accordance with the rules. He relied upon the judgment of the Supreme Court reported in M.V. BIJLANI VS. UNION OF INDIA AND OTHERS[1], wherein the Supreme Court at paragraph 25 observed as under: “25. it is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” On the other hand, the learned counsel appearing for the first respondent submits that the order of the Tribunal is quite legal an there are no grounds to interfere with the order. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. This Court while disposing of the Writ Petition viz., Writ Petition No. 12084 of 2008, taken into consideration the observation made by the Apex Court in CENTRAL BANK OF INDIA VS. P.C. JAIN[2], wherein the Supreme Court held that domestic tribunals, like an enquiry officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged, are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. The relevant portion of the judgment relating to the facts and conclusions, is extracted as under: “9. However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer were perverse. The Tribunal gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified. The first and third elements of the charge relating to payment of the sum of Rs.30,400 to the respondent by Nand Kishore and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N.N.Vazifdar, but the latter could not give any direct evidence, as he was not present at the time when money was paid to the respondent or when the respondent left Muzaffarnagar. He proposed to prove these elements of the charge by depending that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs.30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons. The Enquiry Officer accepted this evidence of Vazifdar, but ignored the fact that Vazifdar’s evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nan Kishroe which, as rightly held by the Tribunal, would amount to hearsay evidence. Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive evidence, he made no statement that this sum of Rs.30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the company of some persons to retire the bills drawn by M/s Gupta Iron Industries. In fact, Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar. The Enquiry officer was, of course, titled to form his own opinion and to believe Vazifdar in preference to Nand Kishore; but on this basis, the only finding that the domestic tribunal could record was that Nand Kishor’s statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar. Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge. It is in this connection that importance attached to the views expressed by this Court in the cases cited above where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to put out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its finding on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.” (Emphasis added) As seen from the record, the Tribunal clearly observed that the person who took the videos, on which the disciplinary authority have placed reliance, was not produced before the Enquiry Officer though he was available and the video tapes were not made available to the applicant. Further, the Tribunal has given a very clear finding with regard to show cause notice. It is on record that the first show cause notice was issued on the applicant-first respondent on 25.5.2003 and he also submitted his explanation on 27.5.2003 but when the matter is still pending consideration, the second petitioner once again issued the second show cause notice for the very same charges stating that he is disagreeing with the report of the Enquiry Officer and called for the explanation of the applicant-first respondent. Even in the second show cause notice issued by the second petitioner dated 22.8.2005, it only makes a reference as Ref.No. 5 about the first show cause notice and it is no where stated that the first show cause notice was cancelled or any action is taken against the first show cause notice. Hence, the Tribunal has considered the matter in proper perspective and there is no jurisdictional error committed by the Tribunal so as to interfere with the order passed by the Tribunal. The Tribunal has rightly set aside both the impugned orders of the first petitioner and the second petitioner dated 10.10.2008 and 8.8.2007 respectively and directed the petitioners to consider the case of the first respondent-applicant for promotion to the post of RTO, if he is otherwise eligible, suitable and comes within the zone of consideration. Hence, 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 _____________________ K.G. SHANKAR, J DATE: 14.02.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (2006) 5 SCC 88 [2] AIR 1969 SC 983