B Venkateswrlu vs The State Of Andhra Pradesh
2021 Latest Caselaw 4166 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                     W.P.No.20218 of 2020
ORDER:

This writ petition is filed questioning the punishment

imposed on the petitioner withholding two increments of pay

without cumulative effect.

This Court has heard Sri M.Vijaya Kumar, learned

counsel for the petitioner and learned Government Pleader for

Services-I.

Learned counsel for the petitioner argues that the

punishment imposed on the petitioner is totally contrary to

the evidence and the conclusions were reached without any

evidence linking the petitioner to the allegations made.

Learned counsel points out that a joint enquiry was

conducted against the petitioner and others. The allegation

against the petitioner is that he was hand in glove with the

first accused and also had monetory transactions with the

first accused. Learned counsel points out that the evidence of

the witnesses which is recorded by the respondents did not

support the case of the department. He also specifically

argues that many of the allegations made against the

petitioner and others are based upon certain entries

contained in a spiral note book. However, he points out that

this basic document/spiral note book was not produced

during the course of the enquiry for it to be relied upon as a

material document. The same is mentioned in the course of

the order, but it is not filed or marked as a document.

Learned counsel also relies upon the two judgments reported

in Roop Singh Negi v. Punjab National Bank and others1

and Nirmala J.Jhala v. State of Gujarat and another2.

Relying on these two judgments, learned counsel for the

petitioner argues that even if the Evidence Act is not

applicable to the departmental proceedings still, the basic

principles mentioned therein are applicable and that there

must be some proof available before a petitioner or any other

delinquent is found guilty. He points out by relying on the

depositions which are filed as material papers that witnesses

themselves did not speak of the finding any transactions

between the petitioner and the first accused. Therefore, he

submits that since the findings are based on no evidence,

they should be set aside. He also points out that the order of

the disciplinary authority which is impugned does not contain

"reasons" as are necessary to prove the charges. The reliance

of the preliminary enquiry report and the final enquiry report

is also questioned by the learned counsel for the petitioner.

In reply to this, learned Government Pleader for

Services-I argues that the enquiry report is a detailed report.

It considered all the facts and evidence that is available. He

also argues that the quality of evidence that is necessary is

1 (2009) 2 SCC 570 2 (2013) 4 SCC 301

only preponderance of probabilities and not proof beyond

reasonable doubt. He submits that based on the available

material, the Government only decided to impose a penalty of

withholding of two increments in pay and that therefore, there

is no attempt of victimizing the petitioner or penalising the

petitioner without adequate reason. He also submits that

there is a provision for revision and that a writ is not

maintainable. He submits that the power of this Court to

interfere in such matters is limited and this Court should not

substitute its finding for the Enquiry Officers finding or act

like an appellate authority. In conclusion he submits that the

punishment was imposed after a detailed enquiry in which

the petitioner had an opportunity to participate. Therefore,

he submits that there is no error in this procedure.

This Court after hearing both the learned counsel

notices that the main charge against the petitioner is that he

has advanced a loan to first accused, who was running a

syndicate of alcohol and wine shops and received interest

there on from him. In the charge itself, there is a reference to

a spiral note book which is seized in the house of first

accused which allegedly shows that the petitioner received

interest from the said accused. Therefore, the crux of the

issue is the entry/entries in these note books. As rightly

pointed out by the learned counsel for the petitioner; this

spiral note book is not a document which has been marked

before the enquiry officer. Table 2 of the enquiry report gives

the list of documents which are marked. In this list, the

spiral note book is not present. This is a critical factor. Apart

from this, when it comes to the findings against the

petitioner, the Enquiry Officer relied upon the preliminary

enquiry report. In the case of Nirmala J.Jhala (2 supra),

Hon'ble Supreme Court held that preliminary report cannot

be relied upon in the course of domestic enquiry proceedings

as the delinquent is not associated with it and cannot cross-

examine the persons examined in it. No opportunity to cross-

examine those witnesses is given to a delinquent. Therefore,

the Hon'ble Supreme Court held that it amounts to failure of

rules of natural justice. The evidence of the witnesses which

are filed as material documents also go to show that the

spiral notebook is not actually seized or exhibited. A

mediators report is also drafted in the ACB Office only

(P.W.28). This is reiterated by P.W.27 also. P.W.2 also state

that he does not know the contents of Exs.P.26, 27 and 29

and except attesting the signature of the witness states that

he does not know the contents. P.W.3 is also stated in his

cross-examination that he does not know if the charged

officers have leant money to first accused. Lastly, the

evidence of P.W.37 who is the Police Officer clearly mentioned

in his cross-examination that the spiral note book seized from

the house of first accused is not produced now. It is also

stated that the report of the forensic laboratory containing the

report on any writing is not filed before the Enquiry Officer.

He also mentions that he has not seized any incriminating

material regarding the loans from the house of the petitioner

and another. Lastly, he submits that the statements of first

accused were not recorded separately, but his provision was

incorporated in the loan.

In these circumstances, this Court has to hold that the

Enquiry Officer did not consider the evidence at all in its

proper perspective. While the Evidence Act, in all its rigour

may not be applicable, still the fact remains that

preponderance of probabilities must be present or point a

finger at the delinquent.

In the case on hand, neither the lending of the money

nor the collection of interest is borne out by any record. The

judgments of the Hon'ble Supreme Court of India which are

relied on by the learned counsel for the petitioner are

squarely applicable to the facts and circumstances of the

case. An order in a quasi judicial proceeding like a

departmental enquiry has to be based upon evidence and

reasons. The evidence must be considered and discussed

before the conclusions are reached. The conclusions must

always be supported by reasons. In the case on hand, the

conclusions against the present petitioner are not at all

supported by "reasons". The evidence of the witnesses

particularly, the lack of the spiral note book has been

overlooked by the Enquiry Officer. It is a critical piece of

evidence which has not been filed at all in the proceedings.

In the absence of such evidence, this Court has to hold

that neither lending of money to first accused nor the

collection of interest from him are actually borne out by the

record. Therefore, this Court has to hold that the enquiry

report is vitiated by serious lapses/lacunae. The imposition

of the penalty is not correct in the light of the available

evidence. The oral and documentary evidence introduced do

not support the case of the State against the petitioner. In

the circumstances, the imposition of any penalty is incorrect

and contrary to law. The two judgments of the Hon'ble

Supreme Court fully apply to the facts of this case.

Hence, the writ petition is therefore allowed. The

punishment imposed against the petitioner vide

G.O.Rt.No.674, dated 25.08.2020 is hereby set aside. No

order as to costs.

As a sequel, the miscellaneous petitions if any

pending shall stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 22.10.2021 KLP