IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT: THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION Nos. 13183 of 2006, 13194 of 2006, 13856 of 2006, 13859 of 2006, 13862 of 2006, 13863 of 2006 and 13926 of 2006 1)WRIT PETITION NO : 13183 of 2006 Between: The Government of Andhra Pradesh, rep. by Secretary to Government, Irrigation & CAD Department, AP Secretariat, Hyderabad ..... PETITIONER AND P.Raghurama Bhadrudu, Executive Engineer(Retd), YRPC Division, Yeleswaram, East Godavari District .....RESPONDENT 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 particularly one in the nature of writ of certiorari calling for the records relating to and connected with the order dated 28.9.2004 of the A.P. Administrative Tribunal, Hyderabad in OA.No.7599/99 to declare it as unjust arbitrary, illegal, and contrary to law and set aside the same and pass Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent : MR.P.BALA KRISHNA MURTHY 2) WRIT PETITION NO : 13194 of 2006 Between: 1 The Government of Andhra Pradesh, Rep. by Secretary to Government, Irrigation & C.A.D. Department. 2 The Engineer -in-Chief (Administration) Erramanzil, Hyderabad. ..... PETITIONERS AND P. Raghurama Bhadrudu Dy. Executive Engineer (Retd.), I & CAD Department, East Godavari District. .....RESPONDENT 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 particularly one in the nature of a writ of Certiorari calling for the records relating to and connected with the order dt. 28-9-2004 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad in O.A.No. 5780/2000 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same and pass such other order or orders as this Hon'ble Court deem fit and proper in the circumstances of the case. Counsel for the Petitioners: THE ADVOCATE GENERAL Counsel for the Respondent : MR.P.BALA KRISHNA MURTHY 3) WRIT PETITION NO : 13856 of 2006 Between: The Govt of A.P., rep. by its Secretary to Government, Irrigation and CAD Dept., Secretariat, Hyderabad. ..... PETITIONER AND M.S. Gopala Krishna Raju, VNP Section, Rajahmundry, under Godavari, Central Division, Irrigation Circle, Dowlaiswaram, E.G.District. .....RESPONDENT 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 particularly one in the nature of a writ of Certiorari calling for the records relating to and connected with the order dt. 28.9.2004 on the file of the A.P. Administrative Tribunal, Hyderabad in O.A.No.7595/99 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same. Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent : MR.P.BALA KRISHNA MURTHY 4) WRIT PETITION NO : 13859 of 2006 Between: The Govt of A.P., Rep by its Secretary to Government, Irrigation & CAD Department, Secretariat, Hyderabad. ..... PETITIONER AND V.Venkateswara Rao, Irrigation Circle, Dowlaiswaram, E.G. District. .....RESPONDENT 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 particularly one in the nature of a Writ of Certiorari calling for the records relating to and connected with the order dated 28-9-2004 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad in O.A.No.7596/1999 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same. Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent : MR.P.BALA KRISHNA MURTHY 5) WRIT PETITION NO : 13862 of 2006 Between: The Govt. of A.P,. Secretary to Govt. Irrigation and CAD Dept,. Secretariat, Hyderabad. ..... PETITIONER AND M.Pattabhi Ramaiah,(Retd), Irrigation Department, PBI Circle, Rajahmundry, E.G.District. .....RESPONDENT 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 of Certiorari calling for the records relating to and connected with the order dt. 28.9.2004 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad in O.A.no.7598/1999 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same. Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent: 6) WRIT PETITION NO : 13863 of 2006 Between: The Government of Andhra Pradesh, Rep. by its Secretary to Government, Hyderabad. ..... PETITIONER AND N.Ch. Veera Reddy Retd. by Dy. Exe. Engineer, Godavari Head Works .....RESPONDENT 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 particularly one in the nature of a writ of Certiorari calling for the records relating to and connected with the order dt. 28-9-2004 on the file of the A.P. Administrative Tribunal, Hyderabad in O.A.No. 7597/99 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same and pass such other order or orders as this Hon'ble Court deem fit and proper in the circumstances of the case. Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent : 7) WRIT PETITION NO : 13926 of 2006 Between: The State of A.P., rep. by its Secretary Govt., Irrigation and CAD Department, Secretariat, Hyd. ..... PETITIONER AND U, Narasimha Murthy, Assistant Engineer ( Retd.), Irrigation Department, Irrigation Circle, Dowlaiswaram, E.G.District. .....RESPONDENT 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 particularly one in the nature of a writ of Certiorari calling for the records relating to and connected with the order dt. 28.9.2004 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad in O.A.No.2095/2000 to declare it as unjust, arbitrary, illegal and contrary to law and set aside the same. Counsel for the Petitioner: THE ADVOCATE GENERAL Counsel for the Respondent : The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 13183 of 2006, 13194 of 2006, 13856 of 2006, 13859 of 2006, 13862 of 2006, 13863 of 2006 and 13926 of 2006 COMMON ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) 1. The present Writ Petitions are filed challenging the common order, dated 28.9.2004 in O.A. Nos. 7595 of 1999 and batch, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’), whereunder and whereby the O.As. were allowed setting aside the impugned proceedings with regard to recovery of certain amounts. 2. The brief facts that are necessary for disposal of the present Writ Petitions may be stated as follows: Cyclone damage repair works were taken up under Cyclone Emergency Reconstruction Project (for short, ‘CERP’) in East Godavari district to repair and restore the minor irrigation sources damaged during cyclone of May, 1990. Some irregularities were detected in execution of 261 works. It seems certain excess payments were made, which included the amounts paid to the contractors as well as amounts billed but not paid or measurements recorded but not billed. A detailed enquiry was conducted by the Chief Technical Examiner of the Government, and a Commissioner of Enquiries was also appointed to enquire into the grave irregularities in execution of the CERP in Rajahmundry sub-division. The petitioners were placed under suspension. The Commissioner of Enquiries submitted his report on 27.12.1993. He found that charges levelled against some of the petitioners except one, were proved. Thereupon, punishment was imposed on the respondents as per G.O. No.1405, Irrigation & Command Area Development (CAD Ser.II) Department, dated 22.12.1995. Besides the punishment, it was also stated in the G.O. that separate orders would be issued in respect of recovery of certain amounts of loss caused to the Government. Thereafter, proceedings dated 30.10.1999 were issued for recovery of amounts in respect of each of the respondents in separate Government Orders. One of the delinquent officers by name M.Adbutha Rao filed O.A. No.5606 of 1997 to quash the order of punishment issued in G.O. Rt. No.1405, dated 22.12.1995. The Tribunal, by its order dated 13.8.1999, opined that there was no valid grounds to question the impugned punishment. Challenging the same, he filed Writ Petition No.26998 of 1999 before this Court. By its order, dated 26.6.2001, this Court allowed the Writ Petition, by setting aside the order of punishment issued in G.O. Rt. No.1405, dated 22.12.1995. Thereafter, the present respondents filed the respective O.As. before the Tribunal. The Tribunal, after considering the material on record and following the judgment in the aforementioned Writ Petition, allowed the O.As. Challenging the same, the present Writ Petitions are filed. 3. The learned Special Government Pleader contended that all the respondents herein have not challenged the original order of punishment dated 22.12.1995, which was in accordance with Rule 25 (i) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for brevity, ‘the Rules’), but challenge was made only in respect of consequential orders, and therefore, on this ground alone, the applications filed by the respondents are liable to be dismissed. He further contended that though an enquiry was conducted in respect of all the respondents, including Mr. M.Adbutha Rao, the charges are not common and the facts of M.Adbutha Rao’s case cannot be equated with that of the petitioners; that from the report of the Commissioner of Enquiries, it is clear that the respondents caused heavy loss to the Government by using malpractices and indulging in irregularities. He further contended that the applicant in O.A. No.5780 of 2000 challenged the Order after lapse of 5 years and no application to condone the delay was filed, therefore, it is barred by limitation under Section 21(1)(a) of the Administrative Tribunals Act, 1985, and on that ground also the said O.A. is liable to be dismissed. Hence, he prayed to allow the Writ Petitions, by setting aside the impugned order. 4. On the other hand, the learned counsel appearing for the respondents in all the Writ Petitions contended that there was no substantial evidence adduced in respect of the accuracy of the assessment made; that the charges are vague. It is further contended that in M.Adbutha Rao v. Government of A.P. & others[1] case, a Division Bench of this Court quashed the G.O. Rt. No.1405, Irrigation & Command Area Development (CAD Ser.II) Department, dated 22.12.1995, inter alia, holding that it was unfortunate that the departmental enquiry on such serious charges had been conducted in such a casual and cavalier manner, and therefore there was no legal basis for the disciplinary authority to issue the order of punishment and the order not only suffers from total non-application of mind on the part of the disciplinary authority, but also suffers from the vice of unreasonableness; that the said order has become final, inasmuch as the Civil Appeal No. 2649 of 2005 arising out of SLP (C) No.19208 of 2001, filed by the Government against the Order, was dismissed by the Apex Court. He further contended that after the orders of the Tribunal, the Government issued orders in the month of September, 2006, dropping further action of recovery, and therefore filing of the present Writ Petitions became in fructuous since the Government had already dropped further action of recovery. It is his further contention that in view of attainment of finality of the order in M.Adbutha Rao’s case (1 supra), this Court cannot take a different view inasmuch as the enquiry in respect of all the officers is one and the same and the report of the enquiry officer is common in respect of all the delinquent officers. He further contended that even as per the enquiry report, the Government, in the first instance, has to proceed against the contractors for recovery of the loss caused to the Government, and if the Government failed to recover the amount from the contractors then only question of liability of payment of any amounts by the respondents would arise; that the Government has not proceeded against the contractors for recovery of the amount by invoking the provisions of the Revenue Recovery Act. Therefore, he prayed to dismiss all the Writ Petitions. 5. It is not in dispute that cyclone damage repair works were taken up under the CERP in East Godavari district, so as to repair and restore minor irrigation sources damaged during cyclone of May, 1990. In total, 261 works were taken up under the said programme in Rajahmundry sub-division of Godavari Central Division, Dawlaiswaram at an estimated cost of Rs.3.256 crores. A House Committee of Andhra Pradesh Legislative Assembly was appointed to enquire into certain irregularities in execution of these works, and a detailed exercise was carried out as a part of investigation wherein it was found that an excess payment with respect to 255 works was quantified at Rs.136.46 lakhs. The said excess payment included the amounts paid to the contractors as well as the amounts billed but not paid or measurements recorded but not billed. The respondents along with one M.Adbutha Rao were suspended. A Commissioner of Enquiries was appointed vide G.O. Rt. No.896, I & CAD (CAD Ser.II) Department, dated 17.9.1991, and the Commissioner submitted report on 27.12.1993. As per his report, certain charges were proved against various officers. In respect of P.Raghurama Bhadrudu, D.E.E., U.Narasimha Murthy, A.E., N.Ch.Veera Reddy, A.E., M.S.G.K. Raju, A.E. and N.Pattabhiramaiah, A.E., the charge with regard to failure to execute the CERP works to the standards, specifications and agreement conditions, was found to be established. Whereas, in respect of M.Adbutha Rao, E.E., benefit of doubt was given to him in respect of the said charge, and though another charge was found to be established, a benefit of doubt was given in that also. In respect of P.Venkateswara Rao, A.E., charge of manipulation of pre-level working levels for the works and failure to execute the works to the standards and specifications and agreement conditions, was found to be established. 6. The Commissioner of Enquiries/Enquiry Officer, in his report dated 17.12.1993, observed, inter alia, thus: “… there is definitely some excess payment and much of the levelling and check-measurement appears unreliable. As no substantial evidence is adduced in favour of accuracy of the assessment made, the accused officers are entitled to benefit of doubt to the extent of 75% which is considered reasonable in all types of works executed. Thus, the loss can be tentatively put at Rs. 29 lakhs which is recoverable, if it cannot be made good from the contractors. The apportionment among the departmental officers can be as per the following proportion: AEE/AE-initial recording officer - 30% DEE -who is check measuring and is responsible for accuracy - 40% EE - who is overall incharge of work and should be in the know of the goings on - 25% SE - who is administrative head and has to direct the operations - 5% ” 7. No doubt, a common enquiry was conducted and witnesses were examined and documents were marked, but separate and individual findings have been given by the enquiry officer in respect of each of the respondents/delinquent officers. It is not the case of giving common findings in respect of all the delinquent officers. Though some of the charges are common in respect of the delinquent officers, at the same time, it cannot be said that all the charges are one and the same in respect of all the delinquent officers. The case of said M.Adbutha Rao cannot be equated with that of the other delinquent officers as some of the charges levelled against him are not attributed to the other delinquent officers viz. assigning DR Nos. to the works without actually receiving the estimates for the same in the division; awarding works on nomination without actually according sanction to the estimates/clearance from the SE; splitting up the works to enable awarding them on nomination, without approval of competent authority. 8. I n M.Adbutha Rao’s case (1 supra), this Court quashed the punishment imposed on Mr. M.Adbutha Rao alone because charges were not proved against him. In the said case, a Division Bench of this Court observed as follows: “From the above, it is evident that the petitioner had been made liable to pay a huge amount in the event the same could not be recoverable from the contractors although no charges against were found to be proved. In any event, there does not appear to be any reasonable basis whereupon the extent of loss had been fixed. Such a finding, ex facie, based on surmises and conjectures, cannot be accepted in law. It is unfortunate that the departmental enquiry on such serious charges had been conducted in such a casual and cavalier manner. It also stands admitted that this Court, having regard to the stand taken by the state in several writ petitions filed by the contractors, directed payment of the amount due to them, wherefrom, it can safely be inferred that even according to the state, no over-payment had been made to the contractors, and in fact, the State owed much amount to the contractors at the relevant point of time. It is, therefore, clear that there was no legal basis for the disciplinary authority to issue the order of punishment. The said order, thus, not only suffers from a total non-application of mind on the part of the disciplinary authority but also suffers from the vice of unreasonableness. In this view of the matter, the impugned order of punishment dated 22.12.1995 cannot be sustained.” 9. Basing on the above said observation of this Court, it is vehemently contended by the learned counsel for the respondents that as this Court quashed the impugned order of punishment dated 22.12.1995, the same principle would apply to the present facts of the case. We are unable to accept the said contention because the charges are not one and the same in respect of the delinquent officers herein and the said Adbutha Rao, and that separate and distinct findings are recorded by the enquiry officer in respect of the charges framed against each of the delinquent officers, though some charges are common. Basing on the material available on record in respect of said Adbutha Rao and because the charges levelled against him, were not proved, the Division Bench of this Court came to the conclusion that the impugned order of punishment dated 22.12.1995 suffers from vice of unreasonableness. Whereas some of the charges levelled against the present respondents have been established in the enquiry. Therefore, the judgment rendered by the Division Bench of this Court in M.Adbutha Rao’s case is judgment in personam and the observations made therein cannot be taken as binding precedent in respect of the present respondents/delinquent officers. 10. Further more, the order of punishment dated 22.12.1995 in respect of the respondents/delinquent officers is not challenged either before the Tribunal or before this Court. Therefore, it would be a futile exercise to go into the correctness of the findings of the enquiry officer in respect of the respondents in the absence of any challenge to the original order of punishment dated 22.12.1995. Hence, we are of the clear opinion that the order of punishment dated 22.12.1995 is still staring at the respondents/delinquent officers. In the absence of any challenge to the order of punishment, dated 22.12.1995, by the respondents, we hold that the decision in M.Adbutha Rao’s case (1 supra) is not applicable to the case of the respondents/delinquent officers. 11. No doubt, one of the delinquent officers, by name R.Raghurama Bhadruru, who is applicant in O.A. No.5780 of 2000 before the Tribunal and respondent in Writ Petition No.13194 of 2006, has not challenged directly the original order of punishment, but he has indirectly sought before the Tribunal the relief of payment of pension and other retirement benefits and also regularize the period of suspension from 17.9.1991 to 28.9.1994. The said challenge was made after lapse of five years of the order of punishment. 12. Section 21(1)(a) of the Administrative Tribunals Act, 1985, reads as follows: “A Tribunal shall not admit an application, - (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;” It is not the case of the respondent in W.P. No. 13194 of 2006 that he made application for condonation of the delay. Thus, he had not approached the Tribunal within the prescribed period under the Act. Therefore, the said O.A. No. 5780 of 2000 is liable to be dismissed on this score also. This aspect of the case has not at all been considered by the Tribunal. 13. In so far as the relief claimed in the O.As., a challenge was made with regard to the Government Orders quantifying the recovery of certain amounts in pursuance of the original Order of punishment issued in the year 1995. Therefore, for all practical purposes, the proceedings impugned before the Tribunal are only consequential proceedings, issued in pursuance of the original final order made by the Government in the year 1995. 14. It is vehemently contended by the learned counsel for the respondents that nothing survives in these Writ Petitions because the Government, after the impugned orders of the Tribunal, issued proceedings dropping the recovery of the amounts from the respondents/delinquent officers. The learned Special Government Pleader contended that under threat of contempt proceedings, the said Government orders have been issued dropping recovery proceedings, but the same were kept in abeyance subsequently. No doubt, the said G.Os. dropping the recovery of the amounts from the delinquent officers have been issued in pursuance of the impugned order of the Tribunal, i.e. in the month of October, 2005. Thereafter, the present Writ Petitions were filed by the Government challenging the said order. Those orders appear to have been passed in pursuance of the order of the Tribunal, which is under challenge before this Court. The Tribunal, simply following the judgment of this Court in M.Adbutha Rao’s case (1 supra), allowed the O.As. without assigning any reasons. The Tribunal has not given any reasons as to how and in what manner the judgment of this Court in M.Adbutha Rao’s case (1 supra) is directly applicable to the facts of the present case. As we have already pointed out, the charges in respect of the said Adbutha Rao and the present delinquent officers are different and distinct, and separate findings have been given by the enquiry officer though a common enquiry was conducted. Further more, in the case filed by the said Adbutha Rao, he challenged the original order of punishment issued in the year 1995, whereas the present respondents did not challenge the original order of punishment dated 22.12.1995 in any manner. In these circumstances, judgment of this Court in M.Adbutha Rao’s case (1 supra), cannot be said to be a judgment in rem. Further, the charges levelled against said Adbutha Rao were not established, but still punishment was imposed, and so, in those circumstances, this Court quashed the order of punishment in respect of the said employee. Whereas, some of the charges levelled against each of the respondents/delinquent officers have been established in the enquiry. Without adverting to these aspects and the issue involved in each of the O.As., quashing of the impugned order basing on the judgment of this Court in M.Adbutha Rao’s case (1 supra), is wholly unsustainable. Therefore, the impugned order in the present Writ Petitions is liable to be set aside. 15.