Lankey Dhono Raju, Vs State of Andhra Pradesh

LANKEY DHONO RAJU, S/O. LALE GURU MURLHY, AGE 61 YEARS, WORKING AS FOREST RANGE OFFICER, RAJANRIAHENDRAVARAM RANGE, RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT, ANDHRA PRADESH

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...PETITIONER

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AND

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STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, ENVIRONMENT, FOREST, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT.

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THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF FOREST FORCE, STATE OF ANDHRA PRADESH, MANGALAGIRI, GUNTUR DISTRICT, A.P.

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THE CONSERVATOR OF FORESTS, RAJAHMUNDRY CIRCLE, RAJAHMUNDRY, EAST GODAVARI DISTRICT AP

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THE VIGILANCE COMMISSIONER, STATE OF ANDHRA PRADESH, A.P. SECRETARIAT, SECRETARIAT BUILDINGS, AMARAVATHI, GUNTUR DISTRICT, AP.

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction, more particularly one in the nature of a writ of Mandamus under Article 226 of the Constitution of India, declaring the Proceedings Rc.No.l6514/2016/AandDC-3(l) dated 03.05.2024 issued by the 2^nd Respondent as arbitrary. illegal, discriminatory, mala fide, unconstitutional, violating Articles 14, 16 and 21 of the Constitution of India and contrary to Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, and hit by the principles of law declared by the Hon’ble Supreme Court in the case of Ngaraj Siva Rao Karjagi vs. Syndicate Bank, Head Office Manipal and another reported in 1991 (3) SCC 219 and set aside the same and issue consequential directions directing the 2nd and lst respondent to forthwith reinstate the petitioner into service with oil consequential benefits including arrears of salary etc. and pass such other orders.

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IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to suspend the operation of the impugned proceedings No.l 6514/2016/A&DC-3(l) dated 03.05.2024 issued by the 2^nd Respondent, pending disposal of the Writ Petition.

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Counsel for the Petitioner:

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1.P V KRISHNAIAH

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Counsel for the Respondent(S):

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1.GP FOR SERVICES I

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The Court made the following:

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THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION No.11734 of 2024

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ORDER:

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The present Writ Petition is filed questioning the Proceedings issued by Respondent No.2 vide RC.No.16514/2016/A&DC-3(1) dated 03.05.2024 against the Petitioner imposing major penalty of compulsory retirement with two-thirds of invalid pension and gratuity and further treating the suspension period ‘not on duty’ , as illegal and arbitrary.

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The facts in brief are as follows;

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The Petitioner while working as Forest Range Officer, Rampachodavaram, was issued a Charge-Memorandum under Rule 20 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short “the A.P.C.S. Rules, 1991” ) on 13.02.2017, whereunder five (5) Articles of Charges were framed against the Petitioner. The Article of Charge-I is with regard to misconduct and violation of the agreement conditions and allowing the contractors to transport the Eucalyptus pulpwood without making payment of full sale amount to an extent of Rs.68,52,881/- and also by adjusting 1/4^th deposits to an extent of Rs.52,72,567/- without previous permission from the Divisional Forest Officer, Eluru.

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The further part of the Article of Charge-I was that the Petitioner had failed to ensure the payment of other taxes like 5% VAT and 2.5% Income Tax and also failed to report the factum of non-payment of full sale amount and taxes etc., to the Divisional Forest Officer, Eluru in order to calculate the penal interest etc., and as such the total loss sustained by the Government is Rs.1,02,89,266/-

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The Article of Charge-II was that the Petitioner failed to follow the agreement conditions such as approval of the route prescribed for the transport of pulpwood material and that the Petitioner issued Form-I permits to the subordinates for issuing to the contractor for lifting of material from the plantation site directly to final destination and that the Petitioner has issued Form-I permits instead of Form-II permits as per the sale agreement conditions.

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The Article of Charge-III was that the Petitioner failed to issue Demand notice to the Contractors and failed to submit progress of quantum of Eucalyptus pulpwood extracted, transported and the amounts collected from the Contractors to the Divisional Forest Officer, Eluru. The Article of Charge-IV was that the Petitioner failed to maintain records as per the guidelines such as Daily Felling Register and Lotwar Register etc., and the Article of Charge-V was that the Petitioner had exhibited gross negligence of duty and committed grave irregularities.

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It is further stated that the list of documents and the list of witnesses were furnished to substantiate the Articles of Charges in Annexures-I & IV of the Charge-Sheet respectively. The Petitioner submitted a detailed explanation on 28.02.2017 denying the allegations made against him stating that the Petitioner himself has reported the facts to the Divisional Forest Officer, Eluru on 14.07.2016 and requested to take further action against Sri G. Vijaya Sekhar, Deputy Range Officer, Nallajerla and Sri T. Venkateswara Rao, Forest Section Officer, Yerraguntapalli vide letter in Rc.No.491/2015, dated 14.07.2016.

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It is further stated that in the course of Range level review meetings conducted by the Petitioner, the Petitioner used to instruct the staff to submit weekly progress reports on extraction and transportation and issued memos to the Deputy Range Officer, Nallajerla and Forest Section Officers, Chintalapudi and Yerraguntapalli Sections respectively. Copies of the Memos dated 08.02.2016, 02.03.2016 and 05.05.2016 respectively were submitted along with the explanation.

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It is also stated that the contractors have paid all the balance sale amounts by online deposits and requested to adjust the security deposits paid for which the extraction of plantations were not commenced. The VAT and IT amounts were also adjusted in the Divisional accounts. The details of the remittances were furnished

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along with the explanation. It is also stated that the Petitioner had submitted a report to the Divisional Forest Officer on 07.10.2015 protesting the knocking down of the sale of all the plantations in the Division in favour of one contractor, whose credibility is untrustworthy and a copy of the said report was enclosed along with the explanation.

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While so, Respondent No.2 vide Proceedings dated 01.03.2018 proposed for conducting a joint disciplinary enquiry against the Petitioner and 11 others, and the Chief Conservator of Forests, Rajahmundry was appointed as the ‘ Enquiry Officer’ and the Divisional Forest Officer, Territorial Division, Kakinada was appointed as the ‘Presenting Officer’ .

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Pursuant thereto, a common enquiry was conducted and an enquiry report was submitted by the Enquiry Officer on 29.06.2018. As per the enquiry report, the Enquiry Officer held that the allegations against the Petitioner stood proved. However, the Articles of Charges framed against four (4) others were held to be proved, while Articles of Charges were not proved against seven (7) others and as against one officer negligence was proved. The enquiry report was communicated to the Petitioner and the Petitioner gave representation to that effect on 19.03.2022.

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While so, vide Proceedings dated 16.04.2024, an advice was tendered by the Additional Secretary to the Government for imposing major penalty of compulsory retirement with two thirds of invalid pension and gratuity and also treating the suspension period as ‘not on duty’ against the Petitioner.

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Subsequently, the Petitioner filed W.P.No.32128 of 2022 before this Court questioning the disciplinary action against him after a lapse of four (4) years. In the said Writ Petition, no interim orders were passed and it is stated that while the Writ Petition is pending, the Petitioner was informed that the Government had approached the Vigilance Commission and sought advice and W.P.No.10183 of 2024 was filed by the Petitioner to furnish advice/report submitted by the Vigilance Commissioner for issuing Memo dated 16.04.2024. Thereafter, the disciplinary authority passed the impugned order imposing the punishment as recommended. Hence, the present Writ Petition is filed.

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In the Affidavit filed in support of the Writ Petition, it is stated that the enquiry was concluded in June, 2018 and after lapse of six (6) years the Government had issued Memo dated 16.04.2024 compelling the disciplinary authority to impose punishment. It is further stated that the disciplinary authority without exercising any discretion and acting at

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the behest of the advice given by the Vigilance Commissioner imposed the punishment.

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It is stated that before passing the impugned order, the disciplinary authority ought to have supplied the advice given by the Vigilance Commissioner and consequential directions given by the Government to enable the Petitioner to examine whether the advice and consequential directions given by the Government were in accordance with law and whether the facts and circumstances including the explanation offered by the Petitioner to the final enquiry report were considered.

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It is stated that the Petitioner had sent a legal notice on 26.04.2024 calling upon Respondent Nos.1, 2 and 4 to communicate the advice given by the Vigilance Commissioner as well as consequential decision taken by the Government and as there was no response, the Petitioner had filed W.P.No.10183 of 2024 before this Court for the said relief. However, in spite of the request of the Petitioner and filing of the Writ Petition, the impugned order came to be passed.

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It is stated that the disciplinary authority while issuing the impugned order of punishment did not consider the explanation submitted by the Petitioner on 30.05.2019 in reply to the enquiry report.

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It is further stated that the very issuance of the Charge-Memorandum on 13.02.2017 is contrary to Rule 20 of A.P.C.S Rules, 1991 inasmuch as the procedure prescribed under Rule 20 of A.P.C.S Rules, 1991 was not adhered to.

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Nextly, the very appointment of the Enquiry Officer on 01.03.2018 was also held to be unsustainable, as the said appointment was made without referring to the explanation offered by the Petitioner to the proposed charges. In furtherance of this, it is stated that there should be justifiable reasons for appointment of the Enquiry Officer after calling for explanation from the Petitioner on the proposed charges. It is stated that the explanation offered by the Petitioner is not an empty formality.

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It is further stated that justifiable reasons should be given in the enquiry report to hold that the charges are proved and in the absence of any justifiable reasons to come to such a conclusion and the charges cannot be mechanically accepted by the disciplinary authority.

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It is further stated that though the enquiry was conducted no action was initiated against the then Divisional Forest Officer, who is the superior authority and that the disciplinary proceedings are discriminatory and the Judgments of the Supreme Court in

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K. Sukender Reddy v. State of Andhra Pradesh¹ and Nagaraj Siva Rao Karjagi v. Syndicate Bank, Head Office Manipal and another² were relied upon to substantiate the plea of lack of independent decision making by the disciplinary authority.

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In the Counter-Affidavit filed on behalf of the Respondents, it is stated that tenders were issued by the Divisional Forest Officer, Eluru for sale of 30 plantations raised and managed by the Van Samrakshan Samiti (VSS) i.e., 15 Eucalyptus Plantations in Eluru Range and 15 Eucalyptus Plantations in Kukunoor Range and the tenders were opened on 25.11.2015.

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After the approval of Chief Conservator of Forests, Rajahmundry, the Divisional Forest Officer, Eluru had issued sale confirmation orders of all the 30 plantations. After confirmation of sale, the contractors had executed agreements with the Divisional Forest Officer, Eluru and the same was forwarded to the Forest Range Officer, Eluru i.e., the Petitioner herein along with the instructions to commence the work and submit the progress of work.

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Similarly, the Forest Range Officer, Eluru had simply forwarded the agreement conditions to the other Charged Officers with the instructions to follow the agreement conditions and the instructions of

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1 1998 (3) ALT 260

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2 1991 (3) SCC 219

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the Divisional Forest Officer, Eluru and to maintain the connected records as per DET manual and permit the contractors to lift the material from the plantation after payment of amounts including all taxes etc., for each load directly to online account of the Forest Development Agency, Eluru (VSS).

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It is stated that as reported by the Forest Range Officer, Eluru that out of 15 Eucalyptus Plantations, the extraction and transportation work was completed in the 11 plantations of Eluru Range within the time allowed and an amount of Rs.68,52,881/- was outstanding and pending from the contractors.

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It is stated that as per the agreement conditions 4 and 5, 1/4^th sale amount and advance amount will be refunded to the purchaser at the end of the transaction only after the department is satisfied that all the obligations and formalities under the agreement have been duly complied with by the purchaser and that no amount is due from him and the refund of such amount shall be released only after satisfaction of the Divisional Forest Officer, Eluru.

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It is stated that as per the tour diaries of the Petitioner, there is no signature in inspection of above harvesting works in the said 11 plantations and the Petitioner had failed to implement the agreement conditions and has not inspected and monitored the work and allowed

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the contractors to lift the Eucalyptus material without payment of amounts. It is further stated that the Petitioner has not reported anything about extraction and transportation of material from the above 11 Eucalyptus plantations from the date of commencement of the work and no demand could be raised by the Divisional Forest Officer, Eluru and that there is failure on the part of the Petitioner to discharge legitimate duties and responsibilities as per Section 155 of the Andhra Pradesh Forest Department Code.

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It is further stated that the Petitioner had allowed the contractors to lift the material clandestinely without payment of value of material in full. It is further stated that taking note of the lapses on the part of the Petitioner, the Chief Conservator of Forests, Rajahmundry had submitted a letter to the disciplinary authority to initiate action against the Petitioner and thereafter the Petitioner was suspended on 11.11.2016 and was reinstated into service on 15.05.2017.

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It is stated that the Government as per G.M.No.996/Sec.IV/2021 EFS & T (Ser.IV) Dept., dated 03.06.2021 and Memo No.209/Sec.IV/A1/2017 EFS & T (Sec.IV) Dept., dated 08.03.2022 directed to refer all the disciplinary cases, which are having vigilance angle, if any, to Government invariably for taking the advice of Vigilance Commission at appropriate stages as per the scheme of seeking advice from the Vigilance Commission.

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In terms thereof, proposals were submitted to the Government in Ref.No.16514/2016/A&DC-3, dated 28.10.2021 for seeking advice of the A.P. Vigilance Commission and after furnishing further information the Government had issued a Memo No.209/Sec.IV/A1/2017 EFS&T(Sec.IV) Dept., dated 16.04.2024 after examining the issue in consultation with the A.P. Vigilance Commission. It is stated that there is no violation of rules or the procedure and the punishment was an independent decision taken by the Principal Chief Conservator of Forests without there being any influence. It is stated that the advice given by the Government vide Memo dated 16.04.2024 is only a procedure under the scheme of seeking advice from the Vigilance Commission.

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Heard Sri P.V. Krishnaiah, learned counsel for the Petitioner and Sri Karri Varun Shyam Kumar, learned Assistant Government Pleader appearing for the Respondents.

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30. Issues:

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(a) Whether the Petitioner is guilty of the charges in the disciplinary enquiry?

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(b) Whether the punishment imposed is proportionate to the gravity of charges?

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Issue (a): A tender was called for sale of Eucalyptus pulpwood on 14.11.2015 with regard to plantations on various locations specified therein. Pursuant thereto, bids were filed and the tender was called by the Divisional Forest Officer, Eluru Division, Eluru. After confirmation of the bid by the Chief Conservator of Forests, Rajahmundry, agreements were entered into with the respective bidders. Clauses 4 and 6 of the agreement are with regard to security deposit and advance sale consideration, Clauses 11, 12 and 15 prescribe the procedure for transportation, weighment and payment of sale value of delivery of Eucalyptus pulpwood. Sub-clause (1) of Clause 15 thereof reads as under;

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“15. Procedure for payment of sale value and delivery of Eucalyptus pulpwood:

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(a) Within 7 days of receipt of intimation under clause-II (12) (a) above from the Forest Range Officer concerned, the purchaser shall pay 75% of the value of the approximate quantity of produce received by him at plantation site as decided in the intimation memo. In case of non receipt of the 75% of the value of produce as demanded by the FRO within the stipulated time at his discretion the DFO may resort to impose penal interest at 18% per annum on the due amount outstanding. Under no circumstances, the delay in payment beyond 15 days will be permitted. If failed to pay the 75% of the produce as demanded, the contract will be cancelled and put up for resale at the risk and responsibility of the

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purchaser and the security deposit and Rs.100/- per mt. paid as advance payment under 11 (6) will be forfeited. In the resale, if any, the loss sustained by the Government will be recovered from the purchaser as arrears of land revenue under LRR Act or provisions of any law for the time being in force. On such resale, if there is surplus, the A.P. Forest Department shall be entitled to retain the full amount and the purchaser (original tenders) shall have no right or claim thereto.”

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Clause 11 of the agreement prescribes the transportation of Eucalyptus pulpwood (without bark) from the designated places. As per the above clause, the Forest Range Officer concerned will inform the approximate quantity of pulpwood located at the plantation site and the purchaser shall transport the pulpwood after paying 75% value of the pulpwood. After payment of the 75% value, the balance amount will be specified as per the procedure prescribed in Clause 16. Clause 16 of the agreement obligates the contractor to pay A.P. VAT and Sales Tax. Clause 11 as extracted above obligates the Forest Range Officer alone to intimate the approximate quantity of pulpwood for transport and the said quantity of pulpwood can be transported only after the contractor pays 75% value thereof.

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In this case, the agreements were entered in December/ January, 2016 and the allegation against the Petitioner is that he had not intimated the quantity of pulpwood lifted from the plantation site and failed to ensure 75% value of the quantity of pulpwood.

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After this issue was brought to the notice of the superior officers, a preliminary enquiry was conducted by the Deputy Range Officer, FSD, Rajahmundry and as per his report, the Forest Range Officer i.e., the Petitioner and his staff i.e., the Deputy Range Officer and Forest Section Officers are responsible for pecuniary loss to the Government of Rs.1,22,89,479/- vide report dated 01.11.2016. Thereafter, taking note of the said report, the Petitioner was suspended from service on 11.11.2016 and a departmental enquiry was initiated against him on 13.02.2017 under Rule 20 of the A.P.C.S. Rules, 1991, whereunder the following Articles of Charges were framed;

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“ARTICLE-1

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"That he had exhibited grave misconduct and violated the agreement conditions and allowed the contactors to transport the Eucalyptus pulpwood without making payment of full sale amount to an extent of Rs 68,52,881/- and also by adjusting 1/4th deposits to an extent of Rs 52,72.567/- without previous permission from the Divisional Forest Officer, Eluru. Further he failed to ensure the payment of other laxes like 5% VAT and 2.5% Income Tax and also failed to report the factum of non payment of full sale amount and taxes etc., to the Divisional

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Forest Officer, Eluru in order to calculate the penal interest etc. As such total loss sustained to the Government is Rs.1,02,89,266/- (FSA Rs 68,52,881/- + VAT-Rs. 10,37,215/- + IT Rs.5,44,538/-+PI Rs.18,54,632/-) as per the details given in the Annexure and thereby responsible for loss.

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ARTICLE-II

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"That he had failed to follow the agreement conditions such as approval of the route prescribed for the transport of pulpwood material and that he issued the Form-l permits to the subordinates for issuing to the contractor for lifting of material from the plantation site directly to final destination and that he has issued Form-l permits instead of Form-II Permits as per the sale agreement conditions".

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ARTICLE-III.

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"That he has failed to issue Demand notice to the Contractors timely for the material extracted before transport of Eucalyptus pulpwood from the Plantation site. He also failed to submit the progress of quantum of Eucalypts pulpwood extracted, transported and amount collected from the contractor to the Divisional Forest Officer, Eluru and also failed to submit the weekly progress report on extraction and transportation of pulp wood despite the written instructions from the Divisional Forest Officer".

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ARTICLE-IV.

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DET. Manual. "That he has failed to maintain the required records as per guidelines such as Daily felling Register, Lotwar Register, Material weighment Register, Form-5 returns as required in DET Manual.

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ARTICLE-V.

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"That he had exhibited gross negligence of duty and committed grave irregularities and failed to quantify the Eucalyptus Plantations as per guidelines and by conducting (100) trees exercise of Eucalyptus plantations in (11) VSSs of Eluru Range during 2015-16".

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That, Sri L. Dhana Raju, Forest Range officer (u/s), formerly Eluru (T) Range, Eluru Division by his above mentioned acts has exhibited lack of integrity, discipline and devotion to duty and conduct unbecoming of a Government servant thereby contravened Rule-3 of the A.P.C.S (Conduct) Rules, 1964. Hence, the charge".

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Similar charge-memorandums regarding lifting of material from the plantation sites were also issued to 10 others i.e., the Deputy Range Officer, Forest Range Officer, Forest Beat Officers, Superintendents and Senior Assistants. After issuance of ChargeMemorandums to the respective individuals, a common enquiry was conducted. In the course of enquiry, the Petitioner was examined by the Presenting Officer and was also cross-examined by the subordinates and co-accused i.e., Sri G. Vijaya Sekhar, Deputy Range Officer, Nallajerla and Sri T. Venkateswara Rao, Forest Section Officer, Yerraguntapalli. Thereafter, a detailed enquiry report running into 87 pages was submitted on 29.06.2018 vide Rc.No.5207/2016-M8.

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In the enquiry report, the lifting of Eucalyptus plantations at Nallajerla Chintalapudi and Yerraguntapalli Sections was independently considered. While considering the lifting of Eucalyptus plantations at Yerraguntapalli Section the Enquiry Officer held that the Forest Section Officer Sri T. Venkateswara Rao as responsible for lifting of the material without adhering to the agreement conditions. It was opined by the Enquiry Officer that the said individual being a senior person and being Section-in-charge, did not follow the rules and conditions and maintenance of required records and Measurement Books and had allowed the contractors to take away the material from VSS plantations. It is also observed that the Forest Section Officer had not submitted any progress report on the extraction and transportation to the Forest Range Officer until the works are over.

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Similarly, while considering the lifting of material from Nallajerla Sections, the Enquiry Officer opined that Sri G. Vijaya Sekhar, Deputy Range Officer being a section-in-charge, was responsible for monitoring the works and collecting the Government money. As per the enquiry report, it was also opined that the Deputy Range Officer had failed to implement the agreement conditions and D.E.T manual while executing the works and failed to inform the Forest Range Officer of the progress of the extraction and transportation to the Forest Range Officer from time to time.

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As regards lifting of Eucalyptus plantations from Chintalapudi Section, the Enquiry Officer opined that no charges were established against the Section-in-charge i.e., the Forest Section Officer.

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As regards the Petitioner, it was opined that the Petitioner being the Forest Range Officer had not properly supervised or even inspect single plantation in Yerraguntapalli Section and huge quantity of material was taken away by the contractors without paying full sale value leaving a huge balance to be collected even after adjustment of security deposits. It is further opined that the Petitioner had neglected the work of supervising from the stage of enumeration, harvesting and transportation and did not involve the VSS members nor given instructions at the beat level and left the entire work on the field level staff and this has caused huge loss to the Government.

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In the opinion of this Court, the petitioner having been obligated under the agreement clauses and being aware of the terms of the agreements was duty-bound to follow up with the section-in-charge of Nallajerla and Yerraguntapalli regarding the extraction and transportation of eucalyptus. It is to be noted that considering the clauses in the agreement where the Petitioner was obligated to certify the quantity of eucalyptus wood and payment of 75% before transportation, the petitioner utterly failed to supervise the entire process. The defence of the Petitioner that he had instructed the

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Section-in-charge of Nallajerla and Yerraguntapalli is of no avail and a lame excuse.

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It is to be noted that the agreements were executed in December/January, 2016 and the entire material from all three Sections, i.e., Nallajerla, Yerraguntapalli, and Chintalapudi were lifted by July, 2017 and only then did the Petitioner submitted a letter to the Conservator of Forests, Rajahmundry regarding the outstanding amounts from the contractors. It is to be noted that there was no visible action on the part of the Petitioner with regard to lifting of material and payments by the contractors till July, 2016. This laxity of more than 6 months by the Petitioner establishes the lack of supervision as opined by the Enquiry Officer.

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The A.P. Forest Department Code Volume-1 and Chapter-XI specifies duties of the Forest Range Officer. The same is extracted below for ready reference.

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“155. Forest Range Officer-

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* Forest Range Officer is the officer in executive charge of the Range and he is responsible for the efficient management of the Range, for the custody and condition of all Government Property in his charge and for the discipline, conduct and work of all his subordinate staff

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* He is responsible for the execution of all works in the Range, with the help of Forest Section Officers and guards, according to the instructions and orders of Divisional Forest Officer.

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* He is responsible for the collection and credit of Forest Revenue and for prompt and correct payment of all sums due for the works executed.

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*He must carry out his inspections in detail and see that all his subordinates do their work properly, and event in the misconduct of any subordinate, the Range Officer should report the case to Divisional Forest Officer for disciplinary action.

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* He should maintain all accounts, relating to revenue, expenditure, timber and other forest produce, and submit his accounts and reports punctually to Division Office

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* He should take effective measures to protect the forest wealth in his custody. Where illicit fellings are observed, the stumps should be examined to find out if they bear the impression of the guards hammer mark and if they were reported through guards diary book and preliminary offence report (POR). Range Officer is responsible for the protection and he should investigate forest offences in his Range, and file charge sheets for the cases ordered for prosecution by Divisional Forest Officer.

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* He will execute the sanctioned works at the rates not exceeding the sanctioned rates and record measurements and quantities of work done.

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* He is responsible for the correct posting of works Registers, Ledgers, Journals, Plantation Registers and other Stationery registers maintained in the Range.

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* He should always wear the prescribed uniform whenever he is on duty, and he should see that all Section Officers, guards and watchers wear the uniform when on duty.

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* He should submit his weekly diaries with details of works allotted, their progress during the week, status of protection of forests, etc., to give a comprehensive picture of the Range.

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* All correspondence connected with the works in the Range should pass through Range Officer or other superior officer and he may do so only through him. Court summons issued to any subordinate should similarly be served through the Forest Range Officer, who has to arrange for the duties of the subordinate being carried out during his absence.

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* He is responsible to prepare annual plan of operations for the Range based upon the sanctioned working plan, working Scheme or executive instructions and prepare necessary estimates and execute the works after obtaining sanctions and the budget

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* He shall inspect the beats as per the programme given by Divisional Forest Officer, and each beat in his Range should be inspected at least once in a calendar year, and submit a detailed report regarding state of boundaries, condition of forests, damage due to biotic pressures nature of offences etc.,”

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In the light of the charter of responsibilities of Forest Range Officer, it would not be open to the Petitioner to contend that he is not responsible for the lapses in the supervision of the extraction and transportation of eucalyptus plantations and the consequential loss for delayed payment also to the government. Issue (a) is accordingly answered.

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Issue (b): The Petitioner was imposed a punishment of “Compulsory Retirement with two-thirds of Invalid pension and gratuity and the suspension period was treated as “not on duty”. To the extent of compulsory retirement and the suspension period being treated as ‘not on duty’, this Court does not find the punishment disproportionate. However, the imposition of punishment of two-thirds of invalid pension and gratuity permanently appears to be excessive and warrants consideration.

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The Rule 39(1) of the A.P. Pension Rules enables the disciplinary authority to grant in pension and gratuity for a person compulsorily retired at a rate not less than two thirds and not more than full invalid pension or gratuity, as a penalty. As per the Rule, a minimum of 2/3^rd of admissible pension and gratuity has to be paid. For ready reference, Rule 39(1) is extracted below;

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“ Rule 39 (1) : A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two thirds and not more than full invalid pension or gratuity or both admissible to him on the date of his compulsory retirement.”

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The impugned punishment of two-thirds of Invalid pension and gratuity appears to indicate that 2/3rd pension and gratuity have been cut and the same is not in consonance with the above extracted Rule.

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Even to impose cut in pension and gratuity even to the extent of 1/3^rd , the pre-requisite is quantification of loss. The Payment of Gratuity Act, 1972 governs the rights with regard to gratuity, the provisions of this Act, being a Central enactment, would prevail. The Section 4(6) thereof enables cut in gratuity to the extent of loss caused. The Section 4(6) of the Act is extracted below;

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“Section 4(6): Notwithstanding anything contained in sub-section (1)(a), the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused .

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(b) the gratuity payable to an employee may be wholly or partially forfeited-

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(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

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(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence.”

¶147

The power under Rule 39 of the A.P. Pension Rules is not independent of Section 4(6) of the Act and the imposition of penalty of cut in gratuity should be only on the basis of loss caused. The gratuity can also be withheld when the delinquent is involved in riotous act or an offence which constitutes a moral turpitude under Section 4(6) (b)(i) and (ii) , but that is not the case here. These parameters can be made applicable to pension also.

¶148

In the present case, the misconduct alleged against the Petitioner is with regard to supervisory failure in ensuring payments before the eucalyptus plantation is lifted by the contractors. No allegations of mala fide intent or collusion have been made. Be that as it may, the principal amounts, including the amount payable towards Income Tax and VAT due to the Government, have been paid by the contractors at the time of the preliminary enquiries itself.

¶149

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¶150

As per page 80 of the enquiry report, the Chief Conservator of Forests had submitted a report to the Principal Chief Conservator of Forests, wherein it is stated that the Accounts Officer had conducted audit of sale of Eucalyptus plantations in Eluru Division on 04.09.2017, 08.09.2017, 11.09.2017 and 02.12.2017 and prepared a special audit report. As per the said audit report, the amounts due to the Department were paid by the contractors and penal interest of Rs.22,78,067/- was due from the contractors. It is further stated that the Divisional Forest Officer, Eluru vide Proceedings dated 04.12.2017 had issued demand notices to the contractors for payment of the penal interests. The relevant portion of the enquiry report is extracted below;

¶151

“As per progress of work submitted by the CCF, Rajahmundry Circle, the Prl.CCF (Hoff), AP, Guntur vide D.O. Letter No. 16514/2016/Vig-1, dt.01-09-2017 has instructed to inform the latest stage of recovery of amounts due from the contractors after having special audit done by the Accounts officer.

¶152

As per the above instructions, the Accounts officer has conducted the audit of sale of Eucalyptus plantations in Eluru Division on 04-09-2017, 08-09-2017, 11-09-2017 and 02-12-2017 and prepared the special audit report and submitted the report. In the audit report, the A.O. has pointed out certain mistakes regarding tender process and maintenance of records and Registers etc. In the audit notes that as per tender condition 1-9(a), Sales tax/APVAT and

¶153

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¶154

other taxes as applicable shall be paid by the purchaser through DDs. along with the sale amount for the quantities supplied. The purchasers have not produced the D.Ds. for the taxes. The available amounts of the purchasers with the DFO were shown as adjusted towards taxes. The amount available in the FDA, Eluru account of DFO is not credited to the Sales tax and I.T. accounts. All the Security deposits adjusted towards balance sale amounts and no notices were issued to the purchaser to replenish the Security deposits. The details of the estimates, M. Books and vouchers for extraction charges are not produced and not available.

¶155

Further, the A.O. has noticed that the purchasers have paid the amounts to another plantation which was confirmed by to another one and payments made in the FDA, Eluru Bank account by other persons also shown as paid by the purchasers and on enquiry it is stated that the purchased informed the same that the amounts paid by others on behalf of them. However, upon adjustment of all the amounts available with the DFO there is penal interest of Rs.22,78,067/- due from the contractors.

¶156

The DFO, Eluru in his Rc. No. 2910/2015/54, dt.04-122017 has submitted further report in this episode and reported that demand notices were raised for payment of penal interest of Rs. 22,78,067/- against the following contractors.

¶157

1) Sri P.V.V. Satyanarayana Rs.7,96,840/2) Sri Dandamudi Prasad Rs.6,86,427/3) Sri Ch. Durga Prasad Rs.5,72,317/4) Sri G. Bala Krishna Rs.2,22,483/-.

¶158

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¶159

The DFO, Eluru has also reported that the contractors have failed to remit the amount of penal interest and as a matter of fact, action is being taken to recovery the amount under LRR Act from the defaulters. Further, the G.P. for Forests, Hon'ble High Court, Hyderabad was also addressed to give legal opinion for further action to be taken against the defaulter contractors. Now the matter is pending with the DFO, Eluru with regards to collection of penal interest.”

¶160

The above part of the enquiry report would indicate that the outstanding amounts in entirety have been recovered including the tax components, barring the amounts towards penal interest of Rs.22,78,067/-. This amount was due as on 2017 and the status of whether the amount was recovered or not was not mentioned in the enquiry report submitted on 29.06.2018. Even in the orders of the disciplinary authority, nothing is forthcoming as to whether any amount is due from the contractors regarding the penal interest.

¶161

Further, the loss cannot be attributed to the Petitioner alone, as the enquiry report states that the Petitioner had given instructions to the Section-in-charges of Yerraguntapalli and Nallajerla Sections and it is they who had defied the instructions of the Petitioner. The page 84 of the enquiry report reads as under;

¶162

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¶163

“It is a fact that the Forest Range Officer has issued the clear instructions to the Deputy Range Officer, Nallajerla Section, Forest Section Officers, Yerraguntapalli and Chintalapudi Sections. But the Deputy Range Officer, Nallajerla and Forest Section Officer, Yerraguntapalli Section have set aside the instructions of the Forest Range Officer and worked the plantation as they like and violated the agreement/sale conditions.”

¶164

Firstly, the impugned cut in pension and gratuity without quantification of loss and apportionment of loss cannot be sustained. Secondly, the impugned cut in pension and gratuity without a time limit would lead to excess recovery of the amounts from the Petitioner in course of time, than the actual loss.

¶165

Dehors the above, the primary aspect that needs consideration is whether there is loss at all for the purpose of recovery under the Payment of Gratuity Act. The principal amounts have been recovered and the loss is only the interest component for delayed payment. There is no negative loss i.e., less than the principal amounts and this aspect requires consideration for imposition of penalty of cut in gratuity and pension.

¶166

As regards the objection of the Petitioner that the Enquiry Officer was appointed contrary to the procedure prescribed and the consequential enquiry was conducted contrary to Rule 5 of the

¶167

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¶168

A.P.C.S. Rules, 1991 without passing any order on the written statement of defense cannot be agitated after conclusion of the enquiry and imposition of penalty. The objection even if sustained does not make the entire enquiry process and the consequential punishment invalid. Ideally, the Petitioner ought to have raised this issue at the relevant point of time rather than raising this issue after imposition of the penalty.

¶169

As regards the imposition of penalty pursuant to the Memo issued by Respondent No.1 on 16.04.2024, this Court is not inclined to accept the same, as the reading of the impugned order reflects independent application of mind by the disciplinary authority and the impugned order of punishment was passed without reference to the said Memo.

¶170

For the aforesaid reasons, the Writ Petition is disposed of, with following directions;

¶171

(i) The penalty to the extent of compulsory retirement and treating the suspension period as not on duty is upheld;

¶172

(ii) The imposition of penalty of cut in pension and gratuity is set-aside and the issue is remitted to the disciplinary authority to re-examine the same and to pass appropriate orders;

¶173

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(iii) The above exercise should be completed within a period of three (3) months from the date of receipt of the copy of the order;

¶175

(iv) No order as to costs.

¶176