* THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD + WRIT PETITION No.4582 of 2009 %10-03-2010 #1. The Government of Andhra Pradesh and others. ….Petitioners Vs. $ P.V. Satyanarayana Murthy. …. Respondent !Counsel for the Petitioner: Government Pleader for Services II Counsel for the Respondent: Sri P. Rajasekhar. <Gist : >Head Note: ? Cases referred: 1. AIR 1959 SC 536 2. AIR 1962 SC 1135 3. AIR 1996 SC 1669 4. (1984)1 SCC 43 5. AIR 1994 SC 1074 6.2006(1) ALD 349 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.4582 of 2009 ORDER: (Per GMJ) This writ petition is filed seeking to quash the order dated 17.12.2008 passed by the Andhra Pradesh Administrative Tribunal (‘the Tribunal’ for short), Hyderabad, in O.A.No.7576 of 2007, whereby the Tribunal allowed the O.A. The case of the petitioners is that while the respondent was working as Senior Assistant on deputation in the office of the second petitioner, on the complaint given by one N. Madhusudhan Rao, husband of Smt. B.M.S.Ratnabai, Hostel Welfare Officer, Krishna District, the respondent was caught red-handed in the act of accepting bribe of Rs.1,000/- from Madhusudhan Rao to issue proceedings of joining order to Ratnabai (wife of Madhusudhan Rao), Hostel Welfare Officer, Krishna District, after she availed sick leave. The Director General, Anti Corruption Bureau, Hyderabad, had recommended in his final report dated 05.07.2003 to place the respondent and another – K.Rama Krishna Rao, District B.C. Welfare Officer, Krishna, on their defence before the Tribunal for disciplinary proceedings, fourth petitioner herein, and the same was done by the Government, vide Memo dated 18.08.2003. The fourth petitioner, submitted report vide letter dated 27.06.2006 stating that since there was evidence to show the act of respondent accepting the bribe was established and accordingly the respondent was liable for major punishment. The Government, after examination of the report of the fourth petitioner, issued show cause notice, dated 15.11.2006, to the respondent to explain as to why a major punishment of dismissal from service should not be imposed against him within fifteen days, to which the respondent filed his explanation dated 10.01.2007. The Government, after careful examination of the case and after following Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (‘1991 Rules’ for short) and as per G.O.Ms.No.2 dated 04.01.1999, imposed major punishment of dismissal from service, vide G.O.Ms.No.27 dated 18.09.2007 furnishing a copy to the respondent. As the respondent refused to take the dismissal order, the same was published in the District Extraordinary Gazette, Krishna District on 24.10.2007. However, aggrieved by the said punishment, the respondent approached the Tribunal by filing O.A.No.7576 of 2007 and the Tribunal, while allowing the O.A., vide judgment dated 17.12.2008, set aside the show cause notice dated 15.11.2006 and G.O.Ms.No.27 dated 18.09.2007. The case of the respondent is that the petitioners initiated disciplinary proceedings on the basis of a false complaint given by the husband of Ratnabai, Hostel Welfare Officer, Krishna District. During the enquiry, though the mediator and the investigating officer deposed that the respondent was not involved, the fourth petitioner, on erroneous view of the matter, sent report against the respondent and in pursuance of the same, the show cause notice dated 15.11.2006 and the consequential G.O.Ms.No.27 dated 18.09.2007 came to be passed, which were challenged in O.A.No.7576 of 2007 filed by the respondent. The Tribunal on the grounds that the fourth petitioner has no jurisdiction to recommend for imposition of major penalty as per Section 7 of the of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 (‘the Act’ for short) read with Rule 6(2)(a) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989 (‘1989 Rules’ for short); that indication of major penalty of dismissal in the show cause notice amounts to prejudging the issue and that the consequential G.O.Ms.No.27 dated 18.09.2007 on the basis of recommendation of the fourth petitioner was non- application of mind; rightly allowed the O.A. Heard the learned Government Pleader for Appeals appearing for the petitioners and the learned counsel for the respondent- applicant. The learned Government Pleader for Services II submitted that the Tribunal has committed a serious error and exceeded its discretion while directing reinstatement of the respondent into service. In support of his submission, the learned Government Pleader relied on the following decisions of the Apex Court: (i) Hukum Chand Malhotra vs. Union of India[1], whereby the Apex Court, while dealing with the scope of Article 311(2) of the Constitution, observed as under: “There is no wrong in principle in punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him.”; (ii) Nilkanth Prasad vs. State of Bihar[2], to the effect that recommendations of the disciplinary authority are not binding for the proposed punishment; (iii) State Bank of Patiala v. S. K. Sharma[3], to the effect that the infractions in the show cause does not invalidate the proceedings; (iv) K.L. Tripathi vs. State Bank of India[4], whereby the Apex Court held as under: “The concept of fair play in action, which is the basis of natural justice, must depend upon the particular lis between the parties. Where there is no lis regarding the fats, no real prejudice would be caused to a party by absence of any formal opportunity of cross-examination and that per se would not invalidate or vitiate the decision arrived at fairly. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for an there was no dispute about the veracity of the statements.“ On the other hand, the learned counsel for the respondent contended that the Tribunal has not committed any error or exceeded its discretion, so as to dislodge its findings by this Court. In fact, the Tribunal, after considering all aspects of the matter in a proper perspective, rightly set aside the show cause notice and the consequential dismissal order and ordered reinstatement of the respondent. He has drawn our attention to the decision of the Apex Court in Managing Director, ECIL vs. B. Karunakar[5], in particular, to the following observations of the Apex Court: “When the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. It cannot, therefore, be gainsaid that the seeds of the law on the subject were laid by S. 240(3) of the Government of India Act, 1935 (the 'GOI Act,). It stated that the civil servant shall not be dismissed or reduced in rank until he had been given "reasonable opportunity to show cause against action proposed to be taken in regard to him". The expression "against action proposed to be taken" was uniformly interpreted by the courts to mean the stage at which the disciplinary authority had arrived at its tentative conclusion with regard to the guilt of and the punishment to be awarded to the employee. The expression "reasonable opportunity to show cause" was accordingly interpreted to mean an opportunity at that stage to represent to the authority against the tentative findings both with regard to the guilt and the proposed punishment. It was therefore, held that in order that the employee had an effective opportunity to show cause against the finding of guilt and the punishment proposed, he should, at that stage be furnished with a copy of the findings of the inquiring authority. It is in this context that the furnishing of the Inquiry Officer's report at that stage was held to be obligatory. It is, however, necessary to note that though the provisions of S. 240(3) of the Government of India Act stated that they would apply only when the employee was sought to be dismissed or reduced in rank which were the major punishments, the same were interpreted to mean that they would also apply when the employee was sought to be removed. These provisions of S. 240(3) of the GOI Act were incorporated bodily in Art. 311(2) of the Constitution with a specific addition of the case of "removal" of the employee to the cases of dismissal and reduction in rank. This addition did not make any difference to the prevailing law, since, as stated earlier, the Courts had already interpreted the provision to include the case of the removal of the employee as well. Probably the specific addition was on account of the interpretation placed by the courts. Article 311(2), however, underwent change with the Constitution (15th Amendment) Act of 1963 which came into force from 6th October, 1963. It explained and expanded the scope of "reasonable opportunity". For the original expression "until he has been given reasonble opportunity of showing cause against the action proposed to be taken in regard to him", the provision "except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry" was substituted. Consequent upon this Amendment, necessary changes were made in the proviso to clause (2) of Art. 311 which changes need not detain us here. It would thus be apparent that the 15th Amendment for the first time in terms provided for holding of an inquiry into the specific charges of which information was given to the delinquent employee in advance and in which he was given reasonable opportunity to defend himself against those charges. The Amendment also provided for a second opportunity to the employee to show cause against the penalty if it was proposed as a result of the inquiry. The courts held that while exercising his second opportunity of showing cause against the penalty, the employee was also entitled to represent against the findings on charges, as well. What is necessary to note for our present purpose is that in spite of this change, the stage at which the employee was held to be entitled to a copy of the report, was the stage at which the penalty was proposed, as was the case prior to the said Amendment. The provisions of clause (2) of Art. 311 were further amended by the Constitution (42nd Amendment) Act of 1976. It came into force from 1st January, 1977. It expressly stated that "it shall not be necessary to give such person any opportunity of making representation on the penalty proposed". The words "such person" of course meant the person who was to be dismissed or removed or reduced in rank. In other words, the 42nd Amendment of the Constitution while retaining the expanded scope of the reasonable opportunity at the first stage, viz., during the inquiry as introduced by the 15th Amendment of the Constitution, did away with the opportunity of making representation against the penalty proposed after the inquiry. It is this Amendment to Art. 311(2) which has given rise to the controversy as to whether when the Inquiry Officer is other than the disciplinary authority, the employee is entitled to a copy of the findings recorded by him, before the disciplinary authority applies its mind to the findings and the evidence recorded, or whether the employee is entitled to the copy of the findings of the enquiry Officer only at the second stage, viz., when the disciplinary authority had arrived at its conclusions and proposed the penalty. Upon answer to this question depends the answer to the other question flowing from it, viz., whether the employee was entitled to make representation against such finding before the penalty was proposed even when Art. 311(2) stood as it was prior to the 15th Amendment of the Constitution.” It is submitted by the learned counsel for the respondent that as no reasonable opportunity was provided to the respondent before taking the decision of removal from service and also in view of the fact that the fourth petitioner has suggested the measure of punishment, the Tribunal rightly set aside the penalty and there are no grounds to interfere with the same. The Tribunal, in the facts and circumstances of the case and the evidence on record, vide order dated 17.12.2008 in O.A.No.7576 of 2007, held as under: “In a decision reported in 2006 (1) ALD 349, in the case of D. Raja Ram V. Divisional Electrical Engineer, Nandyal and another, the Hon’ble High Court of A.P., held that the Charge Memo/Show Cause Notice indicating ultimate punishment to be given is bad, and also, held that indication of punishment, even while calling for explanation, amounts to prejudging the issue and would have its own impact on entire proceedings and the charge memo issued to the petitioner is vitiated in law and liable to be set aside. In the present case also, as the show cause notice indicated imposition of major penalty and the final order was issued confirming the indication of imposition of major punishment of dismissal from service on the Applicant, it clearly shows that the show cause notice and final orders were issued with a predetermined mind, and hence, both the show cause notice and the final orders are liable to be set aside.” I n D. Raja Ram vs. Divisional Electrical Engineer, Nandyal[6], this Court held as under: “The petitioner was required to show-cause as to why the said punishment shall not be imposed. It is true that the ultimate action was taken, only after considering the explanation of the petitioner. But, the indication of punishment, even while calling for the explanation, would have its own impact on the entire proceedings. This issue was considered by this Court in M. Chinnappa Reddy v. State, AIR 1969 AP 234. After referring to the judgments rendered by this Court, as well as Supreme Court, on the issue, it was held as under: ‘It is now fairly settled that at the initial stage when charges are framed and served upon the delinquent officer, the punishing authority or the inquiring officer should not propose what punishment ultimately he is to be given. This is not the stage when any opinion can either be formed or expressed. It amounts to prejudging the issue, which is always likely to create misapprehension in the mind of the delinquent officer. It is only at the stage when after a proper enquiry the punishing authority forms an opinion that the accused officer has committed the offence that he could propose the punishment and ask the delinquent officer to explain as to why that punishment should not be imposed. At the initial stage, if the charge framed indicates the proposed punishment, it vitiates the proceedings. The above said decision clearly decide that point, and with respect, I follow those decisions.’ “ The fourth petitioner in his report dated 27.06.2006, observed as under: “On the afore said reasoning, I hold that there is overwhelming evidence both oral and documentary and circumstantial to show that the C.O. demanded and accepted bribe of Rs.1,000/- from the complainant for handing over the joining orders. Though the C.O. is not a superior officer capable of influencing the orders, he acted like a post-man who withholds the Money Order for want of payment of mamool. Under these circumstances, I hold that the Charged Officer is guilty of the charge levelled against him and the charge against the C.O. is established and the C.O. is liable to major punishment.” Thereafter, based on the above said report, the Government issued the show cause notice dated 15.11.2006. The relevant observations made in the show cause notice read as under: “Government, after careful examination of the Report furnished by the Tribunal for Disciplinary Proceedings, provisionally decided to impose a “major punishment of dismissal from service” as per the first proviso of Rule 9 of APCS (CCA) Rules, 1991 and as per the orders issued in G.O.Ms.No.2, G.A.(Ser.C) Department, dated 4.1.1991 against Sri P.V. Satyanarayana Murthy, Senior Assistant, O/o. the District B.C. Welfare Officer, Krishna District. The Report in Tribunal Enquiry Case No.98 of 2004 is enclosed herewith. Sri P.V. Satyanarayana Murthy, Senior Assistant, Office of the District B.C. Welfare Officer, Krishna District is, therefore, directed to show cause as to why a “major punishment of dismissal from service” should not be imposed against him, as per the first proviso of Rule 9 of APCS (CCA) Rules, 1991, and, as per the orders issued in G.O.Ms.No.2, G.A.(Ser.C) Department, dated 4.1.1991, within (5) days from the date of receipt of this Memo.” Rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, reads as under: “Rule 9. Penalties:- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely- Minor Penalties: (i) censure; (ii) withholding of promotion (iii) omitted; (iv) withholding of increments of pay without cumulative effect; (v) (a) suspension, where a person has already been suspended under Rule 8 to the extent considered necessary; (b) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. Major penalties: (vi) withholding of increments of pay with cumulative effect; (vii) (a) save a provided for in clause (v)(a), reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (b) reduction to lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions, regarding conditions of restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (viii) compulsory retirement; (ix) removal from service which shall not be a disqualification for future employment under the Government; (x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government: Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in [clause (ix) or clause(x)] shall be imposed; Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed.” Rule 6 (2)(a) and (b) of the 1989 Rules reads as under: “(2)(a) In all cases after the enquiry has been completed, the Tribunal shall send its report of findings to the Government within thirty days. However, in cases in which exoneration of Government Servant charged is recommended by the Tribunal, it shall specify, whether the charged officer is “fully exonerated”, for purposes of Fundamental Rule 54(A). Where the Tribunal does not express any such opinion, it shall be presumed by the Government that the Charged Officer is not fully exonerated by the Tribunal. (b) The Government, after receipt of the report from the Tribunal for Disciplinary Proceedings, shall supply a copy of the report of the Tribunal to the charged Government servant and shall pass final orders after taking into consideration any representation made by him thereto within a reasonable time, ordinarily not exceeding one month. However, it shall not be necessary to give to the person charged any opportunity of making representation on the penalty proposed to b imposed: Provided that the Government shall consult the Andhra Pradesh Vigilance Commission in regard to the course of further action to be taken and take the advice into consideration, before orders are passed; Provided further that where the Government disagree with the whole or any part of the Tribunal’s findings, the point or pints of disagreement together with a brief statement of the grounds therefore shall, in case where it affects the Government servant charged adversely or prejudicially be communicated along with the enquiry report of the Tribunal. The above Rule 6(2)(a) and (b) of 1989 Rules is analogous to that of Rule 21(2) and (3) of 1991 Rules. Rule 21 deals with action on the inquiry report.” Section 7 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960, reads as under: “Sec.7. Tribunal to report to Government:- On the conclusion of any inquiry, the Tribunal shall report its findings to the Government servant. Provided that where a single member of the Tribunal holds an inquiry into a case provided in sub-section (1) of Section 6, he alone shall report his findings and his report to the Government in this regard shall be deemed to be the report of the Tribunal for the purposes of this Act: Provided further that where such single member does not examine any witness and record evidence but only hears argument in such an inquiry and reports his findings, the hearing of arguments alone by him shall be deemed to be an enquiry under sub-section (1) of Section 6.” Section 8 of the Act reads as under: Sec.8. Order of Government:- The Government shall consider the report of the Tribunal in the prescribed manner and pass such orders thereon as they think fit. From a perusal of the record, it is clear that the respondent- applicant was not given an opportunity and he was not supplied with a copy of the enquiry report. The allegation against the respondent- applicant is that he accepted a bribe of Rs.1,000/- from one Madhusudhan Rao to issue joining order proceedings in respect of his wife Ratnabai, who was working as Hostel Welfare Officer, Krishna District, after she availed sick leave. It is settled proposition of law that denial of enquiry officer’s report before the disciplinary authority takes a decision on the charges to the respondent-applicant is denial of opportunity to prove his innocence and it amounts to breach of principles of natural justice. In the circumstances, we are of the opinion that the respondent was not given proper opportunity to put- forth his case, as per Karunakar’s case (supra 5), while issuing final proceedings of dismissal from service. Accordingly, the show cause notice dated 15.11.2006 and G.O.Ms.No.27 dated 18.09.2007 are set aside. Consequently the order dated 17.12.2008 passed by the Tribunal in O.A.No.7576 of 2007 is also set aside and the matter is remanded to the first petitioner to consider the same