Banala Naghabhushana Rao, vs The Collector And District ...
2021 Latest Caselaw 1552 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.15427 OF 2020

ORDER:

This writ petition is filed under Article 226 of the Constitution

of India to declare the proceedings in Rc.No.581/2018/A2 dated

02.12.2018 including the proceedings in Rc.No.581/2018/A2 dated

10.06.2018 issued by the first respondent, the consequential

proceedings No.VS.I(3)/1321/2019 dated 26.08.2020 issued by the

second respondent as illegal, arbitrary and violative of Articles 14, 16

and 21 of the Constitution of India, against the principles of natural

justice, apart from contrary to Rules 20, 21 and 37 of the Andhra

Pradesh Civil Services (Classification, Control and Appeal) Rules,

1991 (for short 'the Rules') and set-aside the same and issue

consequential direction directing the respondents to forthwith

consider and promote the petitioner to the post of Tahsildar in Zone-I

as per his seniority before promoting any juniors to the petitioner

with all consequential benefits.

The facts of the case in brief are that, the petitioner joined in

service on 02.07.1995 and later promoted to the post of Deputy

Tahsildar on 23.05.2005. Later, the second respondent/Chief

Commissioner of Land Administration by proceedings dated

29.04.2020 included the name of this petitioner for the panel year

2014-2015 of Deputy Tahsildars in Srikakulam District and

01.09.2013 as date of promotion to the cadre of Deputy Thasildar to

the petitioner. Subsequently, vide proceedings dated 13.05.2020 the

petitioner was included in the year 2014-2015 in the panel of Deputy MSM,J WP_15427_2020

Tahsildars, but changed the date of promotion as 01.09.2014 from

01.09.2013. As per the approved panel for 2014-2015, in the cadre

of Deputy Tahsildar for Zone-I, the name of the petitioner was placed

at Serial No.7 while including the petitioner in the year 2014-2015

panel of Deputy Tahsildar.

On 18.04.2018, the first respondent/Collector & District

Magistrate, Srikakulam issued a charge memo alleging that the

petitioner committed certain irregularities while performing his

duties while he was working as Deputy Tahsildar, MLS Point

Incharge, Kothuru, framed three charges, issued Charge Memo and

called upon this petitioner to file written statement in terms of Rule

20 of The Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991 (hereinafter referred as 'the Rules')

On receipt of charge memo, the petitioner submitted detailed

explanation/written statement twice on 04.05.2018 to the first

respondent, denying charges framed against this petitioner and

demonstrated that he did commit no any illegalities or irregularities.

The fourth respondent issued urgent notice by proceedings

dated 09.07.2018 directing the petitioner to attend the inquiry on

20.06.2019 at 11.00 a.m at Tahsildar's office, Kothuru, referring

proceedings dated 10.06.2018 of the Collector, Srikakulam stating

that the petitioner committed irregularities i.e issuing PDS stock to

the Fair Price Shops without release orders and not updated the

stock register day-to-day basis. Finally, submitted enquiry report by

the second respondent which is now challenged.

MSM,J WP_15427_2020

The main grounds urged by the petitioner before this Court are

as follows:

a) The petitioner is not guilty of any misconduct, despite

submitting an explanation dated 04.05.2018 twice to the

charge memo, the first respondent did not consider the

explanation in proper perspective objectively and appointed the

second respondent as an inquiry officer to conduct enquiry.

Therefore, failure of the first respondent to consider the

explanation objectively is contrary to Rule 20 of the Rules. On

this ground, the very appointment of third respondent/ Special

Chief Secretary, Revenue Department as an enquiry officer is

liable to be set-aside.

b) The second respondent/enquiry officer did conduct no enquiry

in the eye of law strictly adhering to Rule 20 of the Rules and

the report submitted by the second respondent is suffice to

conclude that, no enquiry was held strictly adhering to the

Rules, therefore, the enquiry report is vitiated by illegalities

and irregularities. On this ground alone, final order passed by

the first respondent imposing major penalty of stoppage of two

increments with cumulative effect is illegal and arbitrary.

c) The major contention of this petitioner is that, enquiry was

initiated with a malafide intention to deprive this petitioner for

being considered to the next higher cadre post of Tahsidlar

Grade-I and when his name was included in the panel at Serial

No.7, to deny the promotion, such vexatious charge memo was

issued without any basis and when the intention is malafide, MSM,J WP_15427_2020

the Court can interfere with such findings in the report

submitted by the second respondent and final order passed by

the first respondent imposing major penalty and requested to

set-aside the major penalty while directing the respondents to

consider the petitioner's candidature for being promoted to the

next higher cadre i..e Tahsildar Grade-I for the panel year

2014-2015.

All the respondents filed common counter affidavit, denying

material allegations, while admitting initiation of disciplinary

proceedings, conducting enquiry, affording an opportunity to this

petitioner at every stage strictly adhering to Rule 20 of the Rules. It

is specifically contended that, on an adverse news item was

published in the daily newspapers and after conducting enquiry, as

grave irregularities were committed by this petitioner, the first

respondent/ the Collector & District Magistrate, Srikakulam, after

following due procedure, awarded major penalty i.e. withholding two

annual grade increments vide proceedings dated 02.10.2018.

It is contended that, the petitioner filed statutory appeal to the

second respondent on 21.02.2019 i.e. within the time and the said

appeal was admitted by the second respondent and records were

called for vide Ref.No.VS.I(3)/132/2019 dated 13.06.2019. The

District Collector, Srikakulam has submitted the connected records

vide his letter dated 30.07.2019.

The Inquiry Officer appointed by the District Collector has

issued notice to the petitioner herein for personal enquiry. The

Inquiry report was also furnished to the petitioner herein to offer his MSM,J WP_15427_2020

further explanation in the matter. After examining his further

explanation and record, the Collector, Srikakulam has imposed a

major penalty of stoppage of two annual grade increments by

Collector, Srikakulam vide proceedings dated 02.10.2018. The

appeal was dismissed by the second respondent having found no

procedural infirmity or illegality as final order was imposing major

penalty referred supra was passed.

The respondents denied non-compliance of the direction

issued by this Court in W.P.No.13055 of 2020 dated 20.08.2020 and

while denying malafides attributed to the respondents and the

alleged malafides are without any basis and therefore, the

proceedings were in accordance with law. The respondents explained

the articles of charges, explanation and the findings recorded by the

Inquiry Officer and affirmed by the Appellate Authority in detail in

the counter affidavit. But, this Court is not required to appreciate the

evidence of the authorities, since this Court cannot sit over an

appeal over the orders passed by the second respondent, affirming

the orders passed by the first respondent. At best, this Court is

required to examine the procedural irregularities, both in conducting

enquiry and disposal of appeal. Therefore, those contentions need

not be recorded in the present order. At best, this Court is required

to examine the procedural irregularities pointed out by the learned

counsel for the petitioner and compliance pleaded by the

respondents while deciding the writ petition, exercising power under

Article 226 of the Constitution of India.

MSM,J WP_15427_2020

During hearing, Sri P.V. Krishnaiah, learned counsel for the

petitioner reiterated the contentions urged in the writ petition,

whereas, Sri Aswartha Narayana, learned Government Pleader for

Services-I supported the proceedings issued by the respondents and

placed on record, photocopy copy of entire enquiry file before this

Court for perusal and to find out whether any procedural

irregularities are committed by the Inquiry Officer/fourth respondent

and confirmation of the penalty imposed by the second respondent

and affirmed by the first respondent.

Considering rival contentions, perusing the material available

on record, the sole point that arises for consideration is whether:

"The enquiry conducted against this petitioner is vitiated by any irregularities or illegalities?. Whether the final order imposing major penalty of stoppage of two annual grade increments with cumulative effect and it's confirmation by the second respondent is in accordance with law. If not, liable to be set-aside while directing the first respondent to consider the candidature of this petitioner for promotion to the next higher cadre i.e. Tahsidlar Graade-I for the panel year 2014 - 2015."

P O I N T:

The jurisdiction of this Court to interfere with the enquiry

report is limited while exercising power under Article 226 of the

Constitution of India, since this Court cannot sit over an appeal on

the findings recorded by the Inquiry Officer/fourth respondent and

the penalty imposed by the first respondent, which is confirmed by

the second respondent. At best, this Court shall examine the

procedural irregularities or illegalities if any committed by the

concerned authorities in completion of enquiry. However, while

exercising power under Article 226 of the Constitution of India, if this

Court finds material irregularities which vitiates the entire enquiry, MSM,J WP_15427_2020

the Court can interfere with disciplinary proceedings initiated

against the government servant or if the penalty imposed against the

petitioner is disproportionate to the gravity of the misconduct.

Interference of Court only when the finding is perverse or

based on no evidence. The power of judicial review available to the

High Court as also to this Court under the Constitution takes in its

stride the domestic enquiry as well and it can interfere with the

conclusion reached therein if there was no evidence to support the

findings or the findings recorded were such as could not have been

reached by an ordinary prudent man or the findings were perverse or

made at the dictates of the superior authority. (vide Kuldeep Singh

v. Commissioner of Police and others1).

The first and foremost contention raised by the learned

counsel for the petitioner is that, the very appointment of Inquiry

officer/fourth respondent by the first respondent is illegal and

arbitrary, for the simple reason that, the detailed explanation

submitted by this petitioner was not considered to proceed against

this petitioner by appointing an Inquiry Officer, since it was not

examined objectively.

The disciplinary proceedings deemed to have been initiated

only on service of charge memo on the government servant for non-

compliance of Rule 20(3) of the Rules. Therefore, service of Articles

of Charge calling for written explanation/written submission is the

date of initiation of disciplinary proceedings against this petitioner

i.e. on 18.04.2018. The petitioner allegedly submitted his

explanation/written statement in detail, demonstrating that he is not

1999 (2) SCC 10 MSM,J WP_15427_2020

guilty of any misconduct prima facie and requested to drop further

proceedings against this petitioner. according to the petitioner, the

written statement/explanation submitted by the petitioner was not

considered in proper perspective objectively, thereby, committed a

serious illegality.

According to Rule 20(3) of the Rules, where it is proposed to

hold an inquiry against a Government Servant under Rule 20 and

Rule 21, the Disciplinary Authority or the Controlling Authority who

is not designated as Disciplinary Authority and who is subordinate to

the Appointing Authority can draw up or cause to be drawn up -

(i) The substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge.

(ii) A statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain

(a) A statement of all relevant facts including any admission or confession made by the Government Servant.

(b) A list of documents by which and a list of witness by whom, the articles of charge are proposed to be sustained.

According to Rule 20(4), the Disciplinary Authority shall deliver

or cause to be delivered to the Government Servant a copy of the

articles of charge, the statement of the imputations of misconduct or

misbehaviour and a list of documents and witnesses by which each

article of charge is proposed to be sustained and copies of the said

documents and statements of the said witnesses and shall require

the Government Servant to appear before the Disciplinary Authority

on such day and at such time not exceeding ten working days and

submit a written statement of his defence and to state whether he

desires to be heard in person.

MSM,J WP_15427_2020

Rule 20(5) (a) On the date fixed for appearance, the

Government Servant shall submit the written statement of his

defence. The Disciplinary Authority shall ask the government servant

whether he is guilty or has any defence to make and if he pleads

guilty to any of the articles of charges, the Disciplinary Authority

shall record the plea, sign the record and obtain the signature of the

Government Servant thereon. The disciplinary authority shall record

findings of guilty in respect of those articles of charge to which the

Government servant pleads guilty. Where the Government servant

admits all the articles of charge, the disciplinary authority shall

record its findings on each article of charge after taking such

evidence as it may think fit and shall act in the manner laid down in

Rule 21.

According to Rule 20(5)(b) Where the Government Servant

appears before the Disciplinary Authority and pleads not guilty to the

charges or refuses or omits to plead, the Disciplinary Authority shall

record the plea and obtain signature of the Government Servant

thereon and may decide to hold the inquiry itself or if it considers

necessary to do so appoint an Inquiring Authority for holding the

inquiry into the charges and also appoint a Government Servant or a

retired Government Servant or a legal practioner as Presenting

Officer to present the case in support of the articles of charge and

adjourn the case to a date not exceeding five days. Sub-clause (c)

says that, on the day so fixed, the disciplinary authority shall serve

copies of the orders appointing the inquiring authority and the

Presenting Officer on the Government servant and inform him that

he may take the assistance of any other Government servant to MSM,J WP_15427_2020

present the case on his behalf, but he may not engage a retired

Government servant or a legal practitioner for the purpose unless the

Presenting Officer appointed by the disciplinary authority is one

such, or, the disciplinary authority, having regard to the

circumstances of the case, so permits.

Provided that no Government servant dealing in his official

capacity with the case of inquiry relating to the person charged or

any officer to whom an appeal may be preferred shall be permitted by

the inquiring authority to appear, on behalf of the person charged

before the inquiring authority.

Provided further that the Government servant may take the

assistance of any other Government servant posted at any other

station, if the inquiring authority having regard to the circumstances

of the case and for reasons to be recorded in writing, so permits.

Rule 20(5) did not lay down any procedure of considering the

explanation of this petitioner in detail, while proposing to order

enquiry.

Rule 20 is so elaborate that a repetition of the whole procedure

is unnecessary here. It is however designed to see that not merely a

reasonable opportunity but a very effective opportunity is to be given

to the civil servant to prove his innocence. The salient features are

that -

(1) the articles of charge with statement of imputations, list of documents and witnesses proposed to be examined have to be communicated to the delinquent officer and he should be asked to submit a written statement of defence and to state whether he desires to be heard in person' MSM,J WP_15427_2020

(2) a presenting officer has to be appointed unless the disciplinary authority itself inquires into the charges; (3) in the enquiry, witnesses shall be examined by the presenting officer and may be cross-examined by the Government servant;

(4) the Government servant can take the assistance of another government servant in service or retired or where the presenting officer appointed is a legal practitioner he can also take the assistance of a legal practitioner; (5) the Government servant can himself also produce witnesses on his behalf and they may be cross-examined by the presenting officer;

(6) the Government servant shall be entitled to inspect the documents on which the Articles of Charges are based and if he applies in writing for the supply of the copies of the statement of witnesses;

(7) after the conclusion of the enquiry, a report shall be prepared with the particulars stated in sub-rule (23) of Rule 20.

Above is in short the procedure prescribed in Rule 20 in order

to afford a reasonable opportunity to the delinquent Government

employee to prove the innocence. The rule however is very elaborate

even to recount all the salient features here, only the important

framework is given.

Reasonable opportunity as contemplated by Rule 20 consists

of various steps:

(1) the framing of charges;

(2) the appointment of a presenting officer; (3) the conduct of enquiry proper by examining witnesses and cross-examining them on both sides;

(4) supply of documents necessary to the delinquent officer to effectively put up his defence;

(5) the report of the enquiry officer MSM,J WP_15427_2020

It is not possible to deal with all these steps which form part of

reasonable opportunity in one spell. An attempt is made to broadly

explain the scope of the expression 'reasonable opportunity' while the

various steps it contains are dealt with in separate chapters.

Sub-Rule (3) of Rule 20 of the Rules does not contemplate

judicial consideration of each and every contention raised by the

petitioner in his written statement. Overall consideration is suffice to

order a regular departmental enquiry, if the appointing authority

concludes prima facie that there is material to proceed against this

petitioner for the misconduct. Therefore, failure of the first

respondent to consider the detailed explanation submitted by the

petitioner objectively is not a ground to vitiate the entire enquiry and

therefore, on this ground, this Court cannot set-aside the enquiry

initiated against this petitioner and final order passed by the first

respondent and affirmed by the second respondent.

The second ground raised by this petitioner is that, enquiry

was in total violation of the procedure prescribed under Rule 20 and

Rule 21 of the Rules. However, the respondents contended that the

enquiry was conducted strictly in accordance with Rule 20 of the

Rules and placed on record the entire enquiry record before this

Court.

Undisputedly, a charge memo was issued calling upon this

petitioner to submit written statement of defence as per Sub-Rule 3

of Rule 20 of the Rules, which is the date of initiation of disciplinary

proceedings. Later, on consideration of explanation of this petitioner,

the first respondent ordered departmental enquiry appointing the MSM,J WP_15427_2020

fourth respondent/enquiry officer by exercising power under

Rule 20(6) of the Rules. Till appointment of enquiry officer, I find no

irregularity or violation of any procedure. But, there are several steps

during conduct of regular departmental enquiry. This Court has to

examine various steps at different stages to be followed by an Inquiry

Officer and if, no enquiry in accordance with Rule 20 is conducted,

this Court can interfere with such enquiry.

The Rule 20 of the Rules, prescribes entirely a new procedure

for conducting an enquiry by the disciplinary authority where it is

proposed to impose a major penalty prescribed under the said Rules.

Some of the salient features of the new rule are given below for

immediate guidance of the disciplinary authority/enquiry authority:

(i)For imposition of a major penalty, an enquiry should be conducted either under the CCA Rules, or the Public Servant (Enquiry Act).

(ii) The disciplinary authority may itself conduct the enquiry or appoint an inquiry authority to conduct the enquiry.

(iii) The disciplinary authority itself can prepare or cause the preparation of the articles of charges, statement of imputations of misconduct or misbehaviour.

(iv)The articles of charges, statement of imputations of misconduct and list of witnesses and documents should be served on the Government servant by the disciplinary authority or at its instance and the Government servant should be required to submit the statement of defence and to state whether he desires to be heard in person.

(v) The disciplinary authority on receipt of statement of defence or where no statement of defence is received within the stipulated time, conduct the enquiry itself or appoint an inquiry authority to do so.

3. It may be noted from the above that as per the old rules, the inquiry officer used to be in the picture right from the start of the disciplinary proceedings, whereas under the new rules he comes into picture only when the disciplinary authority, after considering the statement of defence submitted by the Government servants, decides to appoint an Inquiry Authority for conducting an inquiry.

4. It is brought to the notice of Government that the disciplinary authorities appointing the Inquiry Officers straight away on MSM,J WP_15427_2020

receipt of a complaint against a Government servant without following the procedure prescribed in Rule 20(3),(4) the new A.P. Civil Services (CC & A) Rules, 1991 in the first instance. Such a course of action evidently which is not in accordance with the procedure prescribed under the new rules is liable to be set aside when questioned in a Court of Law. It is, therefore, impressed on the disciplinary authorities that they should invariably follow the procedure prescribed under Rule 20(3),(4) of the CCA Rules, 1991 before they consider the appointment of an inquiry authority. Non-compliance with the prescribed procedure will be viewed seriously.

5. As per the provision of the new CCA Rules articles of charges, etc., will have to be prepared or got prepared by the disciplinary authority. Needless to say that the articles of charge form the basis of enquiry. Therefore utmost care and diligence is required to be taken while drawing up the articles of charges, as any defect or deficiency in the articles of charges will ultimately lead to vitiation of the entire proceedings. The disciplinary authority/inquiry authority should see that the charges are specific without any ambiguity and are fully supported by documentary evidence.

6. All the Departments of Secretariat, Heads of Departments and Collectors are requested to strictly follow the above procedure prescribed in the A.P. Civil Services (CC & A) Rules, 1991. Whenever an inquiring authority is to be appointed for conducting enquiry under the said rules, they are also requested to bring these instructions to the notice of their subordinates for their guidance and compliance.

Here, the respondents substantially complied Sub-Rule 5 of

Rule 20. When the petitioner herein denied the charges by

submitting his written statement of defence, the procedure to be

followed is prescribed under Sub-Rules (8) to (10) of Rule 20. After

receiving the documents mentioned under sub-rule (7) (a), the

Inquiring Authority shall issue a notice in writing to the Presenting

Officer and also to the Government Servant to appear before him on

such day and at such time and place specified by him which shall

not exceed ten days.

Thus, a ten days advance notice shall be issued to the

government servant in the departmental enquiry while serving a MSM,J WP_15427_2020

notice to the Presenting Officer when a regular departmental enquiry

is ordered to impose major penalty. But, in the present case,

summary of the entire file is produced before this Court, I find no

material about compliance of Rule 20(8). Apart from that, Rule 20(9)

prescribed the procedure for appearance of the Delinquent Officer

before the Enquiry Authority.

When a notice was served, as served under sub-rule (8) and on

appearance, the Presenting Officer and Government and Government

Servant shall appear before the Inquiring Authority on the date fixed

under sub-rule (8). If the Government Servant informs the Inquiring

Authority that he wishes to inspect the documents mentioned in

sub-rule (3) for the purpose of preparing his defence, the Inquiring

Authority shall order that he may inspect the documents within five

days and the Presenting Officer shall arrange for the inspection

accordingly. The Inquiring Authority shall call upon the Government

Servant whether he admits the genuineness of any of the documents

copies of which have been furnished to him and if he admits the

genuineness of any document it may be taken as evidence without

any proof by the concerned witness.

The Inquiring Authority shall adjourn the case for inquiry to a

date not exceeding ten days for production of evidence and require

the Presenting Officer to produce the evidence by which he proposes

to prove the articles of charges. Thus, Clause (d) of Sub-Rule (9) of

Rule 20 mandates recording of evidence and requires the Presenting

Officer to produce such evidence which he may proposes to prove the

Articles of Charges framed against the Delinquent Officer or MSM,J WP_15427_2020

Government Servant. But, here, the Inquiring Officer did not comply

Clause (c), so also Clause (d) of Sub-Rule (9) of Rule 20.

According to Sub-Rule (10) of Rule 20, on the dates fixed for

recording the evidence, the oral and documentary evidence by which

the articles of charges are proposed to be proved shall be produced

by or on behalf of the Disciplinary Authority. The evidence shall be

recorded as far as possible on day-to-day basis till the evidence on

behalf of the Disciplinary Authority is completed. The witnesses shall

be examined by or on behalf of the Presenting Officer and they may

be cross examined by or on behalf of the Government Servant. The

Presenting Officer shall be entitled to re-examine the witnesses on

any points on which they have been cross examined, but not on any

new matter without the permission of the Inquiring Authority. The

Inquiring Authority may also put such questions to the witnesses as

it thinks fit. But, this procedure under Sub-Rule (10) of Rule 20 has

not been complied, which is mandatory.

Recording of evidence is only to prove a particular charge when

the Government Servant/Delinquent Officer denied the charges and

it is one of the methods to prove the charge, affording an opportunity

to disprove the testimony of the witnesses by cross-examining the

witnesses produced by the Presenting Officer by the Government

Servant or on his behalf. This procedure was totally deviated by the

Inquiry Officer which vitiates the entire proceedings, since no

evidence was recorded and the question of cross-examination of the

witnesses by the Delinquent Officer/Government Servant does not

arise to rebut the testimony of those witnesses. On this ground of MSM,J WP_15427_2020

violation of mandatory rule, the entire enquiry is liable to be set-

aside.

Sub-Rule (11) of Rule 20 further mandates that, if it appears

necessary before the closure of the case on behalf of the Disciplinary

Authority, the Inquiring Authority may, in its discretion, allow the

Presenting Officer to produce evidence not included in the list given

to the Government Servant or may itself call for new evidence or

recall and re-examine any witness. Since Sub-Rule (10) of Rule 20 is

not complied with, question of complying Sub-Rule (11)(a,b & c) of

Rule 20 does not arise.

When the case for the Disciplinary Authority is closed, the

Government Servant shall be required to state his defence orally or

in writing as he may prefer and to submit a list of witnesses to be

examined on his behalf for which purpose the case may be

adjourned to a date not exceeding five days. If the defence is made

orally, it shall be recorded and the Government Servant shall be

required to sign the record. In either case, a copy of the statement of

defence and the list of defence witness may be provided to the

presenting officer, if any, appointed. The case shall be adjourned to a

date not exceeding ten days for production of defence evidence.

(vide Sub-Rule (12) of Rule 20).

The evidence on behalf of the Government Servant shall then

be produced. The Government Servant may examine himself in his

own behalf if he so prefers. The witnesses produced by the

Government Servant shall then be examined and shall be liable to

cross examination, re-examination and examination by the Inquiring MSM,J WP_15427_2020

Authority according to the provisions applicable to the witnesses for

the Disciplinary Authority. (vide Sub-Rule (13) of Rule 20).

The Inquiring Authority may after the Government Servant

closes his case and shall, if the Government Servant has not

examined himself, generally question him on the circumstances

appearing against him in the evidence for purpose of enabling the

Government Servant to explain any circumstances appearing in the

evidence against him. (vide Sub-Rule (14) of Rule 20).

The mandatory requirement under Sub-Rule (14) of Rule 20 is

akin to examination of an accused under Section 313 Cr.P.C and it is

mandatory. In the present case, no witnesses were examined,

question of examination of the Delinquent Officer/Government

Servant himself does not arise and consequently the examination of

the Government Servant/petitioner herein under Sub-Rule (14) of

Rule 20 does not arise.

A bare look, report of the Inquiry Officer/Special Deputy

Collector (KRRC) vide File No.09/2018/SDC(KRRC) dated

24.09.2018 was sent to the office of the District Collector,

Srikakulam. That does not disclose the compliance of any mandatory

procedure prescribed under Rule 20. The Inquiry Officer did not

record evidence of any witness and did not mark any documents

though the petitioner herein/government servant denied the charges

stoutly. No list of witnesses or documents are also annexed to the

report, except filing a bunch of material papers collected by him

personally without affording any opportunity to the government MSM,J WP_15427_2020

servant. Therefore, failure to follow the mandatory procedure

specified under Rule 20 of the Rules vitiates the entire procedure.

The duty of the Enquiry Officer is to fix the date and time of

the enquiry and give due intimation thereof to the delinquent as also

to witnesses. The enquiry officer may also choose the venue of the

enquiry, if necessary, ascertaining the convenience of the delinquent.

But it does not mean that the choosing of the venue of the enquiry

suo motu by the enquiry officer would vitiate the enquiry and such

choosing does not violate the principles of natural justice. There

cannot be any hard and fast rule as to where the enquiry against as

employee is to be held and the only thing to be seen is whether the

employee is in any way denied the opportunity of defending himself

because the enquiry officer suo motu chooses the venue of the

enquiry. (vide Bibhuti Bhushan Paul v. State of West Bengal2)

The Enquiry Officer may also ask the delinquent to cite the

defence witnesses and when the delinquent cites the defence

witnesses, the enquiry officer has to issue summons to such

witnesses, if they are under his administrative control. At the

appointed time he has to conduct the enquiry, which includes the

recording of statements, allowing the witnesses to be cross-

examined, admitting documents into evidence etc. But the enquiry

officer would not be justified in looking into records which are

unspecified and relying on them in is report without intimating to

the delinquent as to what records he had looked into. Such a defect

AIR 1967 Cal.29 MSM,J WP_15427_2020

would vitiate the proceedings. (vide Manmatha Nath Ghosh v.

Director of Public Instruction, Govt. of West Bengal3)

The Enquiry Officer should act with unbiased mind, supply the

petitioner the relevant material documents and must allow him to

cross examine departmental witnesses and if these opportunities are

denied, it would vitiate the inquiry. (vide Shiraguppi v. Deputy

Superintendent of Police4)

Thus, from the law declared by the Courts in the judgments

referred supra, failure to follow the procedure prescribed under

Rule 20, which is based on principles of natural justice and failure to

follow the mandatory procedure amounts to denial of an opportunity

and it amounts to violation of principles of natural justice.

The only legal principles with which inquiring authorities are

primarily concerned are the principles of natural justice which

basically are that (i) the charged officer should be given a reasonable

opportunity to present his case; (ii) evidence against him should be

taken in his presence; (iii) he should have an opportunity to cross

examine the witnesses produced in support of the charges and (iv) he

should be given an opportunity to produce his own witnesses and

documents. All other laws of procedure have been relaxed for

departmental enquiries. Even the provisions of the Indian Evidence

Act and the Criminal Procedure Code, except in so far as they refer to

the general principles of natural justice already referred to, are not

applicable to a departmental enquiry. The principles of natural

justice are already incorporated in the CCA Rules and as long as the

AIR 1958 Cal.49

1977 (2) SLR 836 (Ker.) MSM,J WP_15427_2020

Inquiring Authority follows these rules, particularly all the 23 sub-

rules of Rule 20, which lay down step by step, stage by stage

procedure, neither the disciplinary authority who has appointed him

nor the law courts are likely to find fault with the Inquiry.

Thus, compliance of the mandatory procedure by the Inquiry

Officer is only to afford opportunity at every stage to the Government

Servant to defend himself and failure to follow such procedure would

cause serious prejudice and it amounts to denial of an opportunity,

thereby, such enquiry report submitted in violation of the procedure

under Rule 20 is vitiated by material irregularities.

As discussed above, in the present case, the Inquiry Officer

failed to comply the mandatory procedure prescribed from Sub-Rules

(1) to (23) in substance and such failure would vitiate the entire

proceedings.

Learned Government Pleader for Services-II contended that, on

receipt of report from the Inquiry Officer, the disciplinary authority

i.e. the first respondent issued notice to the petitioner in compliance

of Rule 20, calling for his written representation/additional

statement under Rule 21, to take action and on receipt of report,

penalty of stoppage of two increments was imposed, thereby, it is not

an irregularity.

No doubt, a notice was issued and imposed penalty. When the

Inquiry Officer failed to follow the procedure prescribed under

Rule 20, mere issuance of a notice under Rule 21 for imposing major

penalty prescribed under Rule 9 is not sufficient to impose such MSM,J WP_15427_2020

punishment/major penalty upon the Government Servant/petitioner

herein. As such, the penalty imposed against the petitioner by the

first respondent is illegal.

As discussed above, Inquiry Report is illegal and not in

compliance of mandatory procedure prescribed under Rule 20 of the

Rules. On this ground, the Inquiry Report is liable to be set-aside,

declaring the same as illegal and arbitrary. As a sequel of setting-

aside Inquiry Report, the penalty imposed against this petitioner i.e.

stoppage of two increments with cumulative effect is liable to be set-

aside. Accordingly, the Inquiry Report submitted by the fourth

respondent to the first respondent and the major penalty imposed by

the first respondent are hereby set-aside. However, this will not

preclude the first respondent to order fresh enquiry, if advised, with

a direction to conduct enquiry by strict adherence to the procedure

prescribed under the Rules.

One of the request made by the learned counsel for the

petitioner is, to consider the case of promotion of the petitioner to the

next higher cadre consequent upon setting-aside the Inquiry Report

and major penalty imposed against this petitioner.

No doubt, when this Court set-aside the Inquiry Report and

consequently, the penalty imposed upon this petitioner, the

departmental proceedings are deemed to have been ended, unless

fresh departmental enquiry is ordered, as observed in the earlier

paragraphs. Consequently, the petitioner is entitled to be considered

for promotion to the next higher cadre on par with his juniors in MSM,J WP_15427_2020

terms of Andhra Pradesh State and Subordinate Service Rules, 1996.

Hence, the respondents are directed to consider the candidature of

this petitioner for promotion to the next higher cadre, if he is

otherwise eligible.

In the result, writ petition is allowed, setting aside the

proceedings in Rc.No.581/2018/A2 dated 02.12.2018 including the

proceedings in Rc.No.581/2018/A2 dated 10.06.2018 issued by the

first respondent, as well as the consequential proceedings

No.VS.I(3)/1321/2019 dated 26.08.2020 issued by the second

respondent as illegal and arbitrary, while directing the respondents

to forthwith consider the candidature of the petitioner to the post of

Tahsildar in Grade-I as per his seniority before promoting any

juniors to the petitioner with all consequential benefits, if he is

otherwise eligible. It is made clear that this order will not preclude

the first respondent to order enquiry afresh commencing from

appointment of an Enquiry Officer, as Rule 20(3) is already complied,

if necessary. No costs.

Consequently, miscellaneous petitions pending, if any, shall

stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:17.03.2021

Note: Registry is directed to return the copy of enquiry record under proper acknowledgment to the learned Government Pleader for Services-I.

b/o

SP