HON'BLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.44461 OF 2016
ORDER:
This writ petition is filed seeking following relief:
"...Issue a Writ order or direction more particularly one in the nature of a Writ of Mandamus declaring the action in rejecting petitioners appeal dated 25.06.2014 by the first respondent vide Memo No.768/For.III/A2/2014 dated 06.10.2015 communicated to the petitioner vide Rc.No.3061/2002/S5 dated 11.01.2016 through Divisional Forest Officer, Adilabad i.e., fourth respondent as arbitrary, illegal and to set aside the same and consequently direct the respondents to accord all financial and promotional benefits for which the petitioner is eligible with retrospective effect..."
2. Heard Sri G. Raman Goud, learned counsel for the petitioner and learned Government Pleader for Services-I appearing on behalf of respondent Nos.1 to 5.
3. Learned counsel for the petitioner submits that the petitioner joined as Forest Section officer on 12.05.1986 in Adilabad Division and he was promoted as Deputy Range Officer and retired on 31.08.2013 on attaining the age of superannuation. He further submits that during his service, respondent No.4 issued Articles of charge vide proceedings RC.No.3061/2002-S5 dated 31.07.2002 proposing to hold an enquiry against him by invoking the provisions of Rule 20 of AP CCA Rules, 1991('Rules' for brevity) for negligence in construction of Check Dam at Kothur VSS in Tamsi Forest Section with following charges.
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1. Gross neglect of duty in defective construction of Check dam at Kothur VSS resulting in washing out the Check dam II.
2. Supression of Facts.
3.1 Petitioner submitted his explanation on 11.11.2002 denying the charges levelled against him. Being not satisfied with the same, Government has appointed the Commissioner of Inquiries, GAD for conducting detailed enquiry. The enquiry officer after conducting detailed enquiry submitted enquiry report vide letter No.28(A)/C.O.I-M/BPV/2002 dated 29.05.2003 with a finding that the charge Nos.1 and 2 levelled against the petitioner are not proved. Respondent No.2 disagreeing with the report submitted by the Commissioner of Inquiries issued notice vide Prl.CCF Rc.No.30246/2002.K2, dated 28.05.2005 to the petitioner without conducting any enquiry much less independent enquiry and also without giving proper opportunity to the petitioner and passed order vide proceedings No.30246/02/K2 dated 03.04.2006 awarding punishment of "Reduction in pay permanently by three(3) stages". Pursuant to the said order, respondent No.4 had issued proceedings vide Rc.No.2088/2007/S2 dated 31.05.2007 reducing the petitioner's pay.
3.2 Aggrieved by the above said order, the petitioner filed appeal before respondent No.1 on 01.08.2006. The appellate authority without examining the grounds raised in the appeal and 3 without giving any opportunity to the petitioner rejected the appeal and issued Memo No.7594/For-IV/A2/2006-3 dated 24.11.2008 without giving any reasons. Thereafter, the petitioner filed Memorial petition on 16.10.2009 to respondent No.1 and the said petition was also rejected on 15.07.2010. Thereafter, the petitioner filed representation to the Chief Minster on 25.06.2014 and the said application was rejected by respondent No.1 through Memo No.768/For.III/A2/2014 dated 06.10.2015. 3.3. Learned counsel for the petitioner vehemently contended that the disciplinary authority imposed major punishment of withholding of three increments with cumulative effect though he did not commit any misappropriation, misconduct while discharging his duties. Enquiry officer after conducting enquiry, submitted detailed report stating that the charges levelled against the petitioner are not proved. In the absence of any other material evidence on record, the disciplinary authority imposed the major punishment, especially without giving opportunity much less reasonable opportunity to petitioner and the same is clear violation of principles of natural justice and contrary to law. He further contended that in the enquiry report, the Commissioner of Inquiries specifically stated that the estimate report submitted by the Watershed Team Member and sanctioned by respondent No.4 4 drastically reducing the quantum of amount and measurement leading to the wash out of the check dam in the month of August, 2001, as there were heavy rains and the same was established after due verification of the newspaper reports and rainfall data and the petitioner has not committed any illegality or irregularity and there is no negligence on the part of the petitioner for washing out of check dam and he also not suppressed any facts. He further submits that the appellate authority without giving any notice and opportunity of hearing to the petitioner and without verifying the records, simply rejected the appeal and the same is contrary to law.
4. Per contra, learned Assistant Government Pleader contended that gross neglect of duty in construction of check dam resulted in washing out of the Checkdam-II and Government sustained financial losses. The respondent authorities initiated the disciplinary proceedings after following the due procedure under law. She further submits that the enquiry officer without properly conducting the enquiry, submitted the enquiry report stating that the charges levelled against the petitioner are not proved and the disciplinary authority is having power to accept or reject the enquiry report findings. The disciplinary authority disagreeing with the findings of the enquiry report, after due 5 verification of the entire records, rightly issued the show cause notice on 28.05.2005 to the petitioner directing him to submit his defence statement, if any. In spite of the same, the petitioner failed to submit any explanation/defence statement. Respondent No.2 after thorough verification of the records rightly awarded the punishment of reduction in pay permanently by three (3) stages vide proceedings dated 03.04.2006 by giving cogent reasons. 4.1 Questioning the above said order, petitioner filed appeal and the appellate authority rejected the appeal on 24.11.2008 and the petitioner without questioning the said order, after lapse of two years, filed Memorial petition before respondent No.1 and the said petition was also rejected on 15.07.2010. After lapse of more than four years, the petitioner submitted another representation on 25.06.2014 to the Chief Minister and the same was forwarded to the respondent No.1. Respondent No.1 rejected the said petition on 06.10.2015. She further contended that the order dated 03.04.2006 passed by respondent No.2 has become final and the same was confirmed by the appellate authority on 24.11.2008. The petitioner without approaching the competent Court, filed the representation dated 25.06.2014, though the Government is not having any power to review or modify the order dated 24.11.2008. The petitioner filed petitions one after the other and the same are 6 not maintainable and the writ petition filed by the petitioner is liable to be dismissed on the ground of delay and latches as the petitioner filed this writ petition after lapse of more than 8 years.
5. Having considered the rival submissions made by respective parties and upon perusal of the material available on record, it clearly reveals that respondent No.4 initiated the proceedings dated 31.07.2002 against the petitioner invoking the provisions of Rule 20 of Rules and issued articles of charge as mentioned supra. Pursuant to the same, the petitioner submitted explanation on 11.11.2002 and being not satisfied with the same the Government has appointed Commissioner of Inquiries, GAD for conducting detailed enquiry into the allegations committed by the petitioner and it further appears from the records that during the course of enquiry the enquiry officer has given all opportunities to the petitioner as well as respondent. The enquiry officer after conducting detailed enquiry submitted enquiry report on 29.05.2003 with a finding that the charges levelled against the petitioner are not proved.
6. Enquiry officer in the enquiry report, specifically held that the prosecution relied on the photographs taken by FRO on 05.08.2001, to conclude that the washing away of the check dam was due to defective construction and not using the cement with 7 materials in correct proportions, but there is no substantive evidence from the photographs to suggest bad quality of work and further held that respondent No.1 - the prosecuting officer have not conducted the required tests to establish less usage of cement etc., and washing away of check dam was due to defective construction is not established by the respondents and also held that the rainfall statistics certified by the MRO/Talamadu and the press clipping (Eenadu District Edition dt.22.08.2001) and as per the resolution of the EAS water sheds clearly established that the check dam was damaged due to heavy floods in August, 2001 and washing away of the check dam was not due to the defective construction. The respondent No.2 disagreeing with the findings of the enquiry officer issued notice dated 28.05.2005 and thereafter passed order dated 03.04.2005 imposing punishment of reduction in pay permanently by three stages.
7. Respondent No.2 imposed major punishment without ordering any independent enquiry, though it is settled proposition of law that the disciplinary authority may accept or reject the enquiry officer's findings. However, respondent No.2 in the absence of any other material evidence on record, imposed major punishment of withholding of three annual grade increments with cumulative effect. Aggrieved by the said order, petitioner filed 8 statutory appeal before appellate authority and said authority without giving any reasons much less valid reasons simply rejected the appeal by its order dated 24.11.2008, the operative portion of the order reads as follows:
"...Government after careful examination of the matter with reference to the records and material available have observed that there are no new points of facts in his Appeal Petition to interfere with the penalty awarded b y the Prl.Chief Conservator of Forests and the Appeal Petition of Sri S.Hanumanth Goud, FSO, Adilabad Division, is hereby rejected"
8. It is also relevant to place on record that the petitioner raised several grounds in the appeal but respondent No.1 has not considered any ground and simply rejected the appeal and passed cryptic order and also rejected the Memorial petition by its order dated 15.07.2010. It further appears from the record that petitioner submitted representation to the Chief Minister on 25.06.2014 requesting to reconsider the punishment imposed by respondent No.2 dated 03.04.2006 and the said representation was forwarded to the respondent No.1. Respondent No.1 rejected the said application on 06.10.2015.
9. It is already stated supra that aggrieved by the orders passed by respondent No.3 dated 03.04.2006, the petitioner filed statutory appeal and the appellate authority - respondent No.1 simply rejected the appeal without giving any notice and 9 opportunity to the petitioner and passed cryptic order without assigning any reasons, much less valid reasons.
10. In Udit Narain Singh Malpaharia v. Addl. Member Board of Revenue 1, relying upon the judgment in King v. London County Council [(1931) 2 KB 215, 243] the Hon'ble Apex Court held that no order adverse to a party should be passed without hearing them, which reads as follows:
"Wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority -- a writ of certiorari may issue". It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made there under do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothhesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it.
11. In the case on hand, respondent No.1 rejected the appeal without giving opportunity to the petitioner and also without 1 AIR 1963 SC 786 10 giving any reasons much less valid reasons only on the ground that there is no fresh ground. Thus, the impugned order passed by respondent No.1 is liable to be set aside.
12. It is also relevant to mention here that the petitioner bonafidely prosecuted the proceedings by filing Memorial petition and also mercy petition/representation, but the petitions were rejected by respondent No.1 on 15.10.2010 and 06.10.2015 respectively. Thereafter, the petitioner filed this present writ petition. In view of the same, the contention raised by the learned Assistant Government Pleader that the writ petition is liable to be dismissed on the ground of delay and latches is not tenable under law on the sole ground that the petitioner prosecuted his grievance bonafidely before respondent No.1.
13. For the foregoing reasons, the impugned order dated 24.11.2008 passed by respondent No.1 and consequential order dated 06.10.2015 vide Memo No.768/For.III/A2/2014 are set aside and respondent No.1 is directed to consider the appeal filed by the petitioner dated 01.08.2006 questioning the order dated 03.04.2006 passed by respondent No.2 and pass appropriate orders, in accordance with law, within a period of two(2) months from the date of receipt of a copy of this order by giving opportunity to the petitioner including personal hearing. 11
14. With the above directions, the writ petition is disposed of accordingly. No costs.
As a sequel thereto, miscellaneous applications, if any, pending in this writ petition, shall stand closed.
_____________________________ JUSTICE J. SREENIVAS RAO 08th September, 2023 PSW