IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HONOURALBE SRI JUSTICE G.CHANDRAIAH W.P. No.10630 of 2004 Between: Bandla Parandhamaiah … Petitioner And The Andhra Pradesh Forest Development Corporation Limited And others. … Respondents THE HONOURALBE SRI JUSTICE G.CHANDRAIAH W.P. No.10630 of 2004 ORDER: This writ petition has been filed by the petitioner, who is an Ex- Deputy Plantation Manager in Andhra Pradesh Forest Department, a Government undertaking, seeking for issuance of Writ of Mandamus, declaring the office order No.77/2003, dated 10.09.2003 removing the petitioner from service with immediate effect and treating the suspension period from 29th September, 2000 to 3rd October, 2002 and from 7th October, 2002 to 31st August, 2003 regularising as leave due/E.O.C. as per availability by the 2nd respondent and confirmed in Ref.No.PD/637/2071/773, dated 27.02.2004 by the 1st respondent, as arbitrary, illegal, unjust, contrary to law in violation of principles of natural justice, contrary to the A.P. Forest Development Corporation Limited Staff Regulations, 1975, (for short ‘the Regulations’) not bona fide and also in violation of Articles 14 and 21 of the Constitution of India and consequently set aside the same. The facts that led to the filing the present writ petition are as under: Based on a complaint given by one Sri P. Raj Gopal Reddy, a retired Forest Range Officer, a criminal case was registered against the petitioner vide C.C. No.333 of 2001 for the offences punishable under Sections 420 and 468 IPC on the file of the Judicial First Class Magistrate, Satyavedu. On the ground that a criminal case is registered against the petitioner, he was placed under suspension by proceedings dated 29.08.2000. Questioning the same, the petitioner earlier filed W.P. No.6307 of 2001, and while pendency of the writ petition, the criminal case registered against the petitioner, ended in his acquittal, by virtue of order dated 03.01.2002 passed in Lok Adalath. Thereafter, W.P. No.6307 of 2001 was also disposed of by this Court, vide order dated 13.08.2002 directing the respondents therein to consider the representation of the petitioner by taking into the consideration the substantial order of acquittal passed in C.C. No.333 of 2001. The respondents having considered the representation of the petitioner, vide orders dated 04.10.2002, reinstated the petitioner into service. Again vide office Order No.52 of 2002 dated 07.10.2002, the petitioner was placed under suspension on the allegation for breach of the Regulations, particularly Regulation Nos. 37(A), 41R 61(2). Questioning the same, the petitioner filed W.P. No. 20362 of 2002. Along with the said writ petition, he filed W.P.M.P. No.25532 of 2002, and this Court on 30.04.2003, granted interim suspension as prayed for. Praying to vacate the said order, the respondents filed vacate stay petition, and this Court by order dated 27.08.2003 made the interim order dated 30.04.2003 absolute, with a liberty to the respondents to complete the enquiry and pass appropriate orders in disciplinary proceedings. Pending the writ petition, as there was no stay of enquiry, the department proceeded with the enquiry into the charges leveled against the petitioner. On 20.01.2003 the 3rd respondent issued enquiry notice fixing the date for enquiry as 03.02.2003. The said notice was marked to three witnesses i.e. Sri. N.Krishnaah S/o. Raj Gopal, Sri G.Krishnaiah W/o. Munu Swamy and Sri P.Eashwaraiah S/o. Gopal, who were residents of Gollavari Kandriga village, T.P. Palem Panchayat, Nagulapuram Mandal, Chittoor District. On 03.02.2003, the petitioner could not attend the enquiry due to his domestic problems. On the said date, the 3rd respondent himself conducted enquiry and obtained the statements of three witnesses. Thereafter, the 3rd respondent issued another notice, fixing the date of enquiry as 17.02.2003, on which date also the petitioner did not attend the enquiry due to ill- health of his mother. Once again, the 3rd respondent issued notice fixing the date of enquiry as 10.03.2003, on which date the petitioner attended the enquiry and gave his statement. The petitioner submits that the 3rd respondent has not given him reasonable opportunity to cross examine the three witnesses, and the same is not only violative of the principles of natural justice, but also violative of the Regulations governing the procedure of enquiry. Contending that enquiry conducted by the 3rd respondent is vitiated by the violation of the principles of natural justice and the Regulations governing the procedure of enquiry, and as such, based on such vitiated enquiry, the 2nd respondent could not have passed orders dated 10.09.2003, removing him from service, the petitioner preferred appeal before the 1st respondent, who by orders dated 27.02.2004 rejected the same. Assailing the same, the petitioner filed the present writ petition. On behalf of the respondents, counter affidavit has been filed, inter alia, contending that the petitioner was acquitted in the criminal case only in view of the conciliation to compound the offence as observed in the orders dated 15.06.2002 of the Lok Adalath but he was not acquitted on merits of the case after full fledged trial. Even though the petitioner was acquitted, the act of his involvement in the criminal case constitutes misconduct and therefore, he is liable for disciplinary action in terms of the Regulations, and as in the departmental enquiry, the charges leveled against him stood proved, he was removed from service, and no interference is warranted therewith. The learned counsel for the petitioner submits that the impugned order passed by the 1st respondent confirming the order of the 2nd respondent, is illegal and arbitrary. He submitted that since the petitioner was acquitted in the criminal case, initiating disciplinary action for the very same charge as framed against him in the criminal case, is bad. At any rate, he submitted that the enquiry conducted against the petitioner is vitiated, and suffers from the violation of principles of natural justice, inasmuch as, no opportunity was given to the petitioner to cross-examine the witnesses of the Department, and as such, the order passed by the 1st respondent confirming the order of the 2nd respondent, removing him from service, based on such vitiated enquiry report is bad. In support of this argument, he placed reliance on the judgment of the Supreme Court reported in ASSOCIATED CEMENT CO. LTD. V. THE WORKMEN AND ANR.[1] On the other hand, the learned counsel appearing for the respondents submitted that the petitioner did not ask the Enquiry Officer to give him opportunity to cross-examine the witnesses of the Department, and therefore, the petitioner should be deemed to have waived off his right to cross-examine the witnesses of the Department. He submitted that in the conduct of the enquiry against the petitioner, the respondent authorities have followed the procedure contemplated under the Regulations, in that they have provided every opportunity to the petitioner, and as the petitioner did not appear before the enquiry officer to cross-examine the witnesses of the Department, the respondents proceeded further with the matter, and there is no violation of any law, much less principles of natural justice. In support of this contention, the respondents placed reliance on the judgment of the Supreme Court in BIECCO LAWRIE LTD. v. STATE OF WEST BENGAL[2]. Hence, the order passed by the 1st respondent, confirming the order passed by the 2nd respondent, removing the petitioner from service, based on the enquiry report, cannot be said to be illegal or arbitrary, warranting interference by this Court. Heard the learned counsel on either side and perused the material on record. Based on the complaint given by one Sri P. Rajagopal Reddy S/o. Sri Ponnuswamy Reddy, a retired Forest Range Officer, a criminal case was registered against the petitioner, which eventually ended in his acquittal. Consequent to the acquittal, the petitioner was reinstated into service, but thereafter, the respondents, on the ground that the petitioner had undertaken private business while in service, which is violative of the Service Regulations, placed him under suspension, pending enquiry into the charges. The 3rd respondent, having conducted the enquiry, submitted report holding that the charges leveled against the petitioner are proved. Based on the enquiry report, the 2nd respondent passed orders, removing the petitioner from service. Questioning the removal order, the petitioner filed appeal before the 1st respondent, who passed orders, confirming the order of removal, passed by the 2nd respondent. Assailing the said order, the petitioner filed the present writ petition contending that the enquiry conducted against him is vitiated, inasmuch as, the same was conducted in violation of principles of natural justice, in that no opportunity was given to him to cross- examine the witnesses of the Department, and therefore, the order passed by the 2nd respondent, as confirmed by the 1st respondent, removing him from service, based on the vitiated enquiry report, is arbitrary and illegal, and is liable to be set aside. However, it is the contention of the respondents that the petitioner by not attending the enquiry, has waived off his right to cross-examine the witnesses, and therefore, the 3rd respondent proceeded further with the enquiry and submitted report holding that the charges leveled against the petitioner are proved, and based on such report, the 2nd respondent passed orders removing the petitioner from service, which was confirmed in appeal by the 1st respondent by the impugned order, and no interference is called for therewith. As can be seen from the stand taken by the respondents, they have examined three witnesses on behalf of the Department. Admittedly, the petitioner did not cross-examine them, because he did not attend the enquiry on two occasions. The petitioner has submitted his explanation for not attending the enquiry on the two occasions, and the reason assigned by him, is that his mother was seriously ill. This apart, it is the case of the petitioner that the three persons, whom the Department examined as witnesses on their behalf are set up by Sri. P. Raj Gopal Reddy, who is inimical to him and at whose instance, the criminal case was registered. The petitioner, admittedly, attended the enquiry on the third occasion, and when the petitioner attended the enquiry, it was incumbent upon the 3rd respondent to put the petitioner on notice and ascertain from him whether he intends to cross-examine the witnesses of the Department or lead evidence on his behalf. Admittedly, the 3rd respondent did not put the petitioner on notice, with regard to his right of cross-examining witnesses of the Department. When it is the specific case of the petitioner that the witnesses examined by the Department are set up by the person, who is inimical to him, and based on whose complaint, a criminal case was registered, it was all the more necessary for the 3rd respondent to provide an opportunity to the petitioner to cross-examine them, and not providing opportunity to the petitioner to cross-examine the witnesses of the Department, based on whose evidence, the Enquiry Officer, held that the charges leveled against the petitioner are proved, had certainly prejudiced the petitioner. In conducting disciplinary enquiry, the rule is that the employer should first lead the evidence, provide opportunity to the delinquent to cross- examine the witnesses of the employer and thereafter, the delinquent employee should be asked to lead evidence. In Associated Cement Co. Ltd. v. The Workmen and Anr. (1 supra), the Supreme Court held that “in domestic enquiries, the employer should firstly lead evidence against the workman charges, give him an opportunity to cross- examine the witnesses and then the workman should be asked to give an explanation if he so desires in regard to the evidence led against him”. In the case on hand, as noted above, the petitioner was not provided any opportunity to cross-examine the witnesses of the Department, nevertheless was informed about his right to cross-examine the witnesses of the Department by the 3rd respondent. Though the respondents placing reliance on the judgment of the Supreme Court in Biecco Lawrie Ltd. v. State of West Bengal (2 supra) contend that the petitioner by not attending the enquiry, has waived off his right to cross-examine the witnesses of the Department, and therefore, the enquiry cannot be said to have been vitiated, I am unable to agree with such a contention, having regard to the facts of the present case, which are distinguishable with the facts appearing in the case before the Supreme Court. The facts of the present case are totally different from the facts in the case before the Supreme and distinguishable. In the case before the Supreme Court, the petitioner did not appear for the enquiry on the ground that he was denied legal representation, and considering the fact that the Regulations did not provide for taking legal assistance and the presenting officer also not being a legal expert, in such circumstances, the Supreme Court held that the delinquent therein, had waived off his right to cross-examine the witnesses of the Department, but that is not the case on hand, and in the instant case, as noted supra, the petitioner did not appear for enquiry because his mother was seriously fell ill and thereafter, on the third occasion, he attended the enquiry. In the above view of the matter, I am of the considered opinion that the enquiry conducted against the petitioner is vitiated by violation of principles of natural justice. As the enquiry conducted against the petitioner is vitiated by violation of principles of natural justice, the order passed by the 2nd respondent, removing the petitioner from service, which is confirmed by the 1st respondent in the appeal, cannot be sustained and is liable to be set aside. Accordingly, the writ petition is allowed. The impugned order 27.02.2004 passed by the 1st respondent, confirming the order dated 10.09.2003 passed by the 2nd respondent, removing the petitioner from service, is set aside. Consequently, the respondents are directed to reinstate the petitioner into service. This order, however, does not preclude the respondents from conducting enquiry by providing proper opportunity to the petitioner to cross-examine the witnesses of the Department, and passing appropriate orders, in accordance with law, based on the enquiry report to be submitted by the Enquiry Officer, if they so choose. _________________________ JUSTICE G.CHANDRAIAH Date: 11.03.2011 LSK [1] 652 SUPREME COURT REPORTS (1964) [2] AIR 2010 SC 142