Dismissed

K. Chandrakanth Reddy v. The PRincipal Chief Conservator of Forests

Telangana HC8 Jul 2014WP/39572/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Tribunal order upholding a minor departmental penalty and recovery. The court held that the charge sheet was valid due to enclosed imputation statements, no enquiry was needed for the minor penalty, and the recovery was not solely based on higher authority directions.

What did the court decide?

The Writ Petition is dismissed with no order as to costs and pending miscellaneous petitions closed.

K. Chandrakanth Reddy Vs The PRincipal… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.39572 OF 2012

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed challenging the order, dated 15.11.2012, in O.A.No.4608 of 2009 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, “the Tribunal”).

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2. Petitioner herein/applicant filed the aforementioned Original Application before the Tribunal to call for the records relating to proceedings of respondent No.3 vide R.C.No.60/2006/S3(III), dated 13.11.2006, and proceedings of respondent No.4 vide R.C.No.5719/2006/N5, dated 3.8.2007, as confirmed by respondent No.2 by his proceedings in R.C.No.6879/2007/M4, dated 31.12.2008, and declare the same as illegal, arbitrary and in violation of Rules 20 to 24 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, “the Rules”) and consequently, to set aside the same.

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3. The Tribunal, upon considering the material on record, came to the conclusion that a perusal of the disciplinary proceedings shows that the disciplinary authority has applied its mind to the contentions raised by the applicant and arrived at a conclusion based on the physical inspection reports; that the applicant attended the enquiry and his statement was also recorded and therefore, the respondents have complied with the provisions of the Rules and that there is no violation of the principles of natural justice and accordingly, dismissed the Original Application. Challenging the same, the present writ petition

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is filed by the applicant.

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4. Learned counsel for the petitioner/applicant contended that on the ground that the determination of recovery before conducting enquiry is nothing but pre-determination; that definite articles of charge, as contemplated under Rule 20(3)(i) of the Rules, have not been framed; that the documents relied upon by the department have not been served by the petitioner except showing them in the list of documents; that the articles of charges do not show about the alleged misconduct of the writ petitioner; that the recovery of the amount is based upon the instructions given by the higher authorities; that quasijudicial authority is required to record the reasons and there is no independent application of mind by the disciplinary authority in ordering the recovery and hence, he prays to set aside the impugned order.

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5. On the other hand, learned Government Pleader for Services-I appearing for respondent No.1 contended that the statement of imputation of misconduct against the petitioner/delinquent officer was attached to the articles of charges and all the relevant documents have been supplied to him and he participated in the enquiry conducted by the enquiry officer; that basing on the articles of charges and the documents relied upon by the enquiry officer, the delinquent officer was in a position to give detailed explanation to the articles of charges and in that explanation, he admitted with regard to the loss sustained by the department; that the case before the recovery officer is based upon documentary evidence and hence, he prays to dismiss the writ petition.

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6. If the order of the disciplinary authority is based upon no evidence, then only, it calls for interference by this Court or by the Tribunal. Adequacy or inadequacy of the evidence cannot be a ground to set aside the imposition of punishment. The articles of

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charges issued by the Divisional Forest Officer, Nizamabad on 13.11.2006, no doubt, do not show about the misconduct or misbehaviour alleged against the delinquent officer, but a perusal of the articles of charges would clearly go to show that a statement of imputation of misconduct or misbehaviour on which action was proposed to be taken was enclosed. Therefore, when the statement of imputation of misconduct or misbehaviour was filed along with the articles of charges, it can be said to be a proper compliance. The whole purpose of framing the articles of charges is to make the delinquent officer know about the misconduct or misbehaviour allegedly committed by him at the earliest opportunity. It is not the case of the delinquent officer that at the time of giving explanation to the charge memo, he was misled by the department or that the articles of charges were not properly framed. Therefore, the contention of the learned counsel for the petitioner that the articles of charges do not contain the details of the alleged misconduct cannot be accepted because the statement of imputation of alleged misconduct has been enclosed to the articles of charges. Therefore, it is a substantial compliance in terms of Rule 20(3) of the Rules.

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7. Learned counsel for the petitioner further contended that without examining the witnesses and without conducting any enquiry, punishment was imposed on the petitioner. For that, he placed reliance on a decision reported in State of Uttaranchal and others v. Kharak Singh^[1] wherein it is held at para 15 (iii) as under:

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“15. From the above decisions, the following principles would emerge: (i)…….. (ii)…….

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(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the

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evidence led against him.”

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A perusal of the above decision shows that in an enquiry, witnesses have to be examined on behalf of the department and opportunity shall be given to the delinquent officer for cross examining those witnesses. That stage has not come because considering the explanation given by the delinquent officer, appropriate punishment has been given. If the punishment imposed against the delinquent officer is a major penalty, then, certainly, the decision relied upon by the learned counsel for the petitioner would be applicable. Without examining the witnesses and marking the relevant documents, a major penalty cannot be imposed. But in this case, a minor penalty of stoppage of two increments without cumulative effect has been imposed and for imposing the minor penalty, no enquiry needs to be conducted. Minor penalty can be imposed basing on the admissions made by the delinquent officer in his written explanation to the charges. Therefore, the contentions raised by the learned counsel for the petitioner cannot be accepted to set aside the impugned order.

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8. Learned counsel for the petitioner also contended that at the instance of higher authority, recovery of an amount of Rs.92,882/- was ordered. For that, he placed reliance on the proceedings of the Principal Chief Conservator of Forests, Hyderabad wherein it is mentioned as under:

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“….. As seen from the report, the following subordinate staff are responsible for the irregularities and the total amounts to be recovered from them in two stretches of plantations are as follows:

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Name of the officer	3.00 km 5.50 km Total Plantation Plantation
1. Sri B.Rajeshwar Dy. Range Officer	Rs.18,401/- Rs.6,981/- Rs.25,382/-
2. Sri MA Rahoof Dy Range Officer	Rs. 9,859/- Rs.18,570/- Rs.28,429/-

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3. Sri K. Chandrakanth Rs.10,801/- Rs.9,544/- Rs.20,645/-”

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Reddy Forest Section Officer

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Ultimately, the Conservator of Forests requested the disciplinary authority to take action on the following points:

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“1. Submit draft Article of Charge against Sri B. Rajeswhar, and Sri M. A. Rahoof, the then Dy. Range Officers and subsequently promoted as Forest Range Officers, who are responsible for the above irregularities.

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2. Request the Divisional Forest Officer, Nizamabad to initiate disciplinary action against Sri K. Chandrakanth Reddy, Forest Section Officer Social Forestry division Nizamabad and submit action taken report.

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3. Initiate action to recover the excess expenditure incurred in carrying out plantation works from the concerned and intimate the recovery particulars.”

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So, it cannot be said to be an advice. He directed the disciplinary authority to take action in accordance with law.

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9. Learned counsel for the petitioner further placed reliance on a decision reported in Commissioner of Income Tax, Shimla v. Greenworld Corporation, Parwanoo^[2] wherein it is held at para

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No.64 as under:

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“…. We are constrained to think that the assessing officer had passed an order at the instance of the higher authority which is illegal. For the aforementioned purpose, we may not go into the question of bona fides or otherwise of the authorities under the Income Tax Act. They might have proceeded bona fide but the order of assessment passed by the assessing officer on the dictates of the higher authorities being wholly without jurisdiction, it was a nullity……”

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No doubt, the disciplinary authority cannot bind over on the advice given by the higher authorities. If the order was passed basing on the advice of the higher authorities, it can be said to be a nonapplication of mind by the disciplinary authority. Therefore, the proceedings referred to above cannot indicate that there was a

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direction by the higher authority to take appropriate decision with regard to the recovery of certain amounts. Under no stretch of imagination, it can be said that the order of recovery is at the instance of higher authority.

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10. After serving the articles of charges, duly supplying the copies of the documents basing on which the charges were framed, the petitioner was given an opportunity of making representation, as required under Rule 20 of the Rules. As per Rule 20(3)(i) of the Rules, the disciplinary authority can draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge. So, the contention of the learned counsel for the petitioner that the imputation of misconduct or misbehaviour into definite and distinct articles of charges was not drawn up cannot be accepted. Even assuming for a moment that the articles of charges were not properly framed or defectively framed, it cannot be a ground to throw away the entire case unless the delinquent officer shows that prejudice was caused to him for nonframing or non-mentioning the distinct and separate charges. Till such time, the Tribunal or this Court cannot look into the articles of charges so as to throw away the punishment imposed by the disciplinary authority. Therefore, we do not find any reasons to interfere with the impugned order. The Writ Petition is devoid of merits and is liable to be dismissed.

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11. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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Date: 08.07.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.39572 OF 2012