IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 1499 of 2000 Between: Iqbal Ahmed s/o.Mohd. Ghouse, Assistant Director of Horticulture, O/o. Commissioner of Horticulutre, A.P. Hyderabad. ..... PETITIONER AND 1. The Government of A.P.,Agriculture and Cooperation (Hort) Department, rep. By its Principal Secretary, Secretariat, Hyderabad. 2. The Director of Horticulture, A.P., Hyderabad. 3. The Deputy Director of Horticulture/ Enquiry Officer, Government Guardens, A.P., Hyderabad. 4.The Andhra Pradesh Administrative Tribunal, rep. By its Registrar, Puranahaveli, Hyderabad. .....RESPONDENTS 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 issue a writ, order or direction more in the nature of Certiorari calling for the records relating to the impugned G.O.Rt.No.314, Agriculture & Cooperation (Horti), dated 27.3.1996, and the judgment of the Administrative Tribunal in O.A.No.2665 of 1996 dated 11.10.1999 and struck down the same and consequently declare that the petitioner is entitled for promotion to the cadre of Deputy Director of Horticulture with effect from the date on which his immediate juniors were promoted to the said post with all consequential benefits such as pay and allowances, seniority and other attendant benefits. Counsel for the Petitioner: MR.D.Linga Rao Counsel for the Respondents: G.P. for Services I The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) The petitioner, Assistant Director of Horticulture, was imposed punishment of stoppage of two annual grade increments with cumulative effect besides recovery of Rs.26,250/- from him vide order of the Government in G.O.Rt.No.314, Agriculture and Co-operation Department, dated 27.3.1996. Aggrieved by the said order of punishment passed by the Government, the petitioner filed O.A.No.2665 of 1996 before the Andhra Pradesh Administrative Tribunal to set aside order of the Government dated 27.3.1996. The case of the petitioner is that he was originally appointed as Agricultural Officer with effect from 16.12.1968 and subsequently promoted as Assistant Director of Horticulture under the control of Directorate of Horticulture from 1.1.1986 and after working at several places he was posted as Assistant Director of Horticulture, Srikakulam in the month of May, 1988 and he joined the said place in June, 1988. It is stated that he always discharging duties without any blemish. It is stated that consequent on the discontinuance of Multi State Cashew Project, the left over work of Multi State Cashew Project relating to the four defunct officers of Assistant Director of Horticulture (Cashew), Srikakulam, Assistant Director of Horticulture (SMS), Tekkali, Assistant Director of Horticulture (Cashew), Vizianagaram and Assistant Director of Horticulture (SMS), Bobbili were also entrusted to the petitioner and he was given heavy burden of work on account of discontinuance of the scheme besides the regular Horticulture work relating to the two districts of Srikakulam and Vizianagaram. It is stated that though he was entitled for a vehicle he was not given the vehicle and he used to travel by bus in spite of heavy work he had taken steps for disposal of the plant material by issuing suitable instructions to the Horticulture Officer who was incharge of the Farm besides reporting the matter to the Director of Horticulture about the seedling which ought to have been disposed of by his predecessor, when the seedlings attained the age of one year in 1987-88 itself i.e., before March, 1988 earlier to his joining in the said post. It is stated that no steps were taken for disposal of the seedlings at the Farm by the predecessor for the reasons best known to him. After taking over the charge the petitioner explored the possibility of disposing of the seedlings and issued instructions to the Horticulture Officer incharge of the Farm. The petitioner had also taken hectic efforts for disposal of the plant material in every possible manner. It is also stated that even the S.C. beneficiaries, who have to contribute 25% of the cost of the plant material, were not prepared to pay the cost and lift the material though the department had contributed 75% of the cost of the plant material as subsidy. In fact, the petitioner requested the Divisional Forest Officer (Social Forestry Division), Vizianagaram to take over the plant material produced with the departmental funds, but the Divisional Forest Officer expressed his inability to take over the same because of lack of funds. Therefore, the petitioner sent a report, dated 17.2.1989 to the Director of Horticulture indicating the availability of plant material and bringing the facts and circumstances about the Farm Seedlings to the notice of the 2nd respondent. It is stated that the petitioner had arranged for disposal of the plant material and deputed two Sub Assistants to assist the Horticulture Officer in identification of the farmers and distribution of coconut seedlings. However, the Horticulture Officer had never reported about any difficulty in regard to protection of the plant material. While so, a fire accident took place on 16.5.1989 at the Horticulture Farm, Bobbili, which was a natural calamity. The Sub Inspector of Police vide his report dated 24.8.1989 had stated that he had minutely examined the case where fire broke out and it occurred accidentally and the cause was not with any criminal intention and no motive can be attached to the fire accident. However, the Government vide G.O.Rt.No.2586 dated 8.11.1989 appointed the Deputy Director of Horticulture, 3rd respondent herein as enquiry officer to conduct detailed regular enquiry into the fire accident only at the Horticulture Farm, Bobbili held on 16.5.1989 for fixing the responsibility on the officers concerned. Thereupon, the 3rd respondent issued the charge memo dated 28.3.1990 with the following three charges: “1. That he being a superior officer failed to take steps to report the balance plant material at the farm, after handling over the farm to the forest department and failed to seek guidance or instructions from the office of the Director of Horticulture, Hyderabad. 2. That he failed and neglected his duties and responsibility of a controlling officer to guide and advise and steps to be taken by the Horticultural Officer, I/c, Bobbili farm for proper protection disposal of the plant material left over at the farm and miserably failed in discharge of his duties. 3. That by his negligence and failure to take steps for the protection of the plant material at Horticultural farm at Bobbili, Government sustained a loss of Rs.52,250/- for which he is to be held responsible.” Thereafter, the petitioner submitted his explanation to the said charges denying the charges levelled against him. The enquiry officer submitted his report to the Government vide letter dated 29.6.1990. The conclusions arrived in the said enquiry report are as hereunder: “From the verification of the reports of the Fire Officer, Police and also the Watchman of the Forest Department, the fact remains that there was fire accident took place on 16.5.1989 between 12.05 p.m. and 12.30 a.m. at Horticultural Farm, Bobbili. The cause of the fire accident is still remain to be undisclosed. According to the report of the Sub Inspector of Police, Bobbili, dated 24.8.1989 addressed to the Assistant Director of Horticulture, Srikakulam under copy to the Horticulture Officer, Bobbili, he has stated that he minutely examined the place where fire broke out and that it was not with any criminal intention to cause damage and it was occurred accidentally. He has also stated that he contacted the persons residing at Prem Nagar, which is situated adjacent to the Horticultural Farm set fire to the waste plants and thorny bushes. Due to the effect the flames scattered and spread towards the coconut seedlings stocked in the farm, it was happened accidentally. The Horticulture Officer was on tour on 16.5.1989 and he came to know about the fire accident on 20.5.1989 when he reached his house at Vizianagaram through his family members. He proceeded to the farm and issued a telegram to the Director of Horticulture, Hyderabad. Therefore, the first hand information of fire accident of the Horticultural Farm, Bobbili was passed on to the Horticulture Officer, Bobbili on 20.5.1989 i.e., after 4 days of the fire accident took place. The Horticulture Officer after handing over the charge of the farm to the Forest Department has not made any arrangements to protect the plant material available at the farm of the Asst. Director of Horticulture, Srikakulam, has taken steps. As regards the evidence of Sri K.S.Baskaran, Ex.Junior Assistant and presently working in the O/o.CTO, Nidadavolu and Watchmen of the other departmental persons and they need not speak lies and therefore some weightage can be given to their statements and the fact is that the fire accident took place. The fire destroyed 5250 coconut plant as per the count taken by the Horticulture Officer on 20.5.1989 and reported the matter to the Director of Horticulture on 20.5.1989. The Horticulture Officer has furnished the list of S.C. beneficiaries who have contributed their 25% share of the cost of the coconut plants in October, 1989 and also (3) photos of the damaged nursery due to fire accident and also the sketch plan of the site. The backyard of the Leprosy colony which is open space forming foundry of the farm and the coconut nursery damaged in fire accident as indicated in the sketch plan. As seen from the area affected by the fire it was affected in one direction only and adjacent areas were not affected. The fire accident cannot be denied in view of the various evidences, that took place on 16.5.1989 and the Horticulture Officer was not present on the day. He was away from the farm and no departmental person were posted at the farm to safeguard the interests of the plant material left over after handing over the farm to the Forest Department. It is also noticed that the Farm where the Departmental plant material was available, no weeding and cleaning operations have taken place as per the statements of the Watchman of the Forest Department of the Farm. In view of the evidence and other material, available no motive can be attributed to the Horticulture Officer and Assistant Director of Horticulture in so far as fire accident that took place on 16.5.1989 at Horticultural Farm, Bobbili is concerned. However, the Horticulture Officer of the Assistant Director of Horticulture, Srikakulam have not taken any steps to provide at least one watchman to protect the plant material available at the Farm who would have taken steps to weed the weeisides, and keep the plant material properly so that the loss due to fire accident would be minimum if not totally avoided.” Based on the enquiry report, the Government passed orders vide G.O.Rt.No.314, Agriculture and Co-operation (Horticulture) Department, dated 27.3.1996, imposing the punishment of stoppage of two annual increments with cumulative effect besides recovery of Rs.26,250/-. Questioning the said orders, the petitioner filed O.A.No.2665 of 1996 before the Andhra Pradesh Administrative Tribunal and the Tribunal while declining to interfere with the said order of the Government permitted the petitioner to file a review petition before the Government to reconsider its decision and on such representation filed by the petitioner, the 1st respondent is directed to examine the same keeping in view the fact that the Farm stands transferred to the Forest Department during the relevant period and if the Department have not sanctioned the post of Watchman to take care of the plant material of the Horticulture Department and whether the petitioner, who is supervisory officer incharge of various Farms can be held responsible for the loss. Aggrieved by the said order of the Tribunal, this writ petition has been filed by the petitioner. This Court while admitting the writ petition directed the petitioner to file a representation so as to enable the Government to consider and pass appropriate orders in the light of the orders of the Tribunal. The petitioner made a representation which was also rejected by the Government vide Memo No.4077/Vig.II(2)/2004-4, Agriculture and Co-operation Department, dated 6.12.2005. A perusal of the said rejection order goes to show that the Government did not consider the directions issued by the Tribunal about transferring of the Farm to the Forest Department during the relevant period and also not posting the Watchman to take care of the plant material of the Horticulture Department and whether the petitioner, who is the supervisory officer incharge of the various Farms can be held responsible for the loss. The Government only held that even though the fire was accidental, the petitioner being a supervisory officer should have got the plant material shifted from the Horticulture Farm, Bobbili to any other nurseries since the said Farm was transferred to Forest Department and the officials of the Forest Department were not ready to take over the plant material and accordingly rejected the review petition. The petitioner questioned the order of the Tribunal on the ground that the Tribunal ought to have set aside the order of the Government vide G.O.Rt.No.314, dated 27.3.1996, on the conclusions of the enquiry report and the charges against the petitioner were not proved. As per the enquiry report, the fire occurred accidentally. On the date of the fire, the Horticulture Officer was on tour and he came to know about the fire accident on 20.5.1989 when he reached Vizianagaram. Thereafter, he informed the same to the Director of Horticulture, Hyderabad. Even according to the enquiry report from the date of occurring of the fire accident, the Horticulture Officer was not present and he was away from the Farm and no departmental person were posted at the Farm to safeguard the interests of the plant material left over after handing over the Farm to the Forest Department. It is also noticed that the Farm where the Departmental plant material was available, no weeding and cleaning operations have taken place as per the statements of the Watchman of the Forest Department of the Farm. The enquiry officer further stated that no motive could be attributed to the Horticulture Officer and the Assistant Director in so far as the fire accident that took place on 16.5.1989 at Horticultural Farm is concerned. But, however, it is stated that the Horticulture Officer of the Assistant Director of Horticulture, Srikakulam have not taken any steps to provide at least one Watchman to protect the plant material available at the farm, who would have taken steps to weed the weeisides and keep the plant material properly so that the loss due to fire accident would be minimum, if not totally avoided. The contention of the petitioner is that the fire accident was occurred accidentally and according to the enquiry report the fire accident was not attributable to the petitioner and in fact the petitioner was on official duty to attend a meeting in the office of Director of Horticulture on 16.5.1989. The Government issued order in G.O.Rt.No.2586, dated 8.11.1989, appointing the Deputy Director of Horticulture as enquiry officer to conduct a detailed enquiry on the fire accident for fixing responsibility on the officers concerned and admittedly no responsibility was fixed on any of the officers and ultimately concluded that the fire was occurred accidentally. The enquiry officer rightly stated that no motive could be attached to the petitioner with regard to the fire accident. It is also the contention of the petitioner that the enquiry report was submitted the report in 1990 and the Government passed orders after six years i.e., on 27.3.1996 inflicting major penalty without properly considering his explanation. The enquiry officer without fixing the responsibility went beyond the scope of the enquiry suggested that the Horticulture Officer or the Assistant Director have not taken any steps to provide at least one watchman to protect the plant material available at the Farm to weed out the weeisides and keep the plant material properly. It is the contention of the petitioner that the said observations of the enquiry officer are beyond the scope and the terms of the enquiry. It is also stated that there is no negligence on the part of the Horticulture Officer as well as the petitioner and no motives are attributable to the Horticulture Officer as well as the petitioner in respect of the accident that took place on 16.5.1989. In so far as the disposal of the plant material is concerned, the petitioner had issued suitable instructions to the Horticulture Officer incharge besides reporting the matter to the Director of Horticulture vide letter dated 17.2.1989 indicating the number of seedlings handed over to the Forest Department and the number of seedlings produced with the departmental funds under different schemes. However, the Forest Department expressed its inability to purchase the seedlings due to paucity of funds, but, however, provided Watchman and the Forest Range Officer towards maintenance. The petitioner also instructed the Horticulture Officer, Bobbili during his visit to the Farm for immediate disposal of the seedlings and also provided two Sub Assistants to assist the Horticulture Officer for distribution and selling of the seedlings. However, the Horticulture Officer could sell only 1071 seedlings during the year leaving a balance of 5484 seedlings. In fact, different agencies which were entrusted with the Social Forestry Programme were contacted as can be seen vide report dated 31.7.1989 about the availability of plant material and its cost. But, however, except placing indents there was no response from them. Efforts were also made for distribution of the seedlings to the S.C. farmers on 75% subsidy, but, however, they had not come forward. Therefore, in spite of best efforts to protect and dispose of the seedlings by issuing necessary instructions to the Horticulture Officer in time apart from providing two Sub Assistants of Srikakulam District to assist him, no negligence can be attributed to the petitioner on the said fire accident and there are also no lapses on the part of the petitioner. But the enquiry officer having held that the fire accident cannot be attributable to the petitioner, obviously observed that the Horticulture Officer or the Assistant Director of Horticulture, Srikakulam have not taken any steps to provide at least one Watchman to protect the plant material. We are of the opinion that the findings of the enquiry officer and the order passed by the Government imposing the said punishment do not contain any reason showing proper application of mind. In the absence of specific unambiguous findings of the enquiry officer, we are of the opinion that the Government ought not to have imposed the said punishment. Therefore, we are of the opinion that the Tribunal ought to have granted the relief by setting aside the order of the Government vide G.O.Rt.No.314, Agriculture and Co-operation Department, dated 27.3.1996, instead of permitting the petitioner to make a fresh representation. Accordingly, we allow the writ petition setting aside the order of the Government in G.O.Rt.No.314, Agriculture and Cooperation Department, dated 27.3.1996. There shall be no order as to costs. ________________ V.ESWARAIAH, J. ___________________ P.SWAROOP REDDY, J. 12.6.2009 kpr