Andhra Pradesh High Court - Amravati
J.Venkatamani vs Prl.Secy., Vigilanceiv Hyd., 3 ... on 30 April, 2022
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No.24743 OF 2016
ORDER: (Per Hon'ble Sri Justice A.V.Sesha Sai)
This Writ Petition is directed against the order dated
04.12.2015 passed by the Andhra Pradesh Administrative
Tribunal (hereinafter called, 'the Tribunal') in O.A.No.4890 of
2009. By way of the said order, the Tribunal dismissed the
Original Application, filed by the petitioner herein under Section
19 of the Administrative Tribunals Act, 1985.
2. Briefly stated the facts and circumstances, leading to
the filing of the present Writ Petition are as follows:
The petitioner herein was a Surveyor in Survey, Settlement
and Lands Records Department. On the basis of a complaint
made by one Sri Muniswami, saying that the petitioner
demanded amount from him for doing official favour by way of
sending survey report to the Mandal Revenue Officer,
Narayanavanam Mandal and consequent upon the trap laid by
the Anti Corruption Bureau Officials, the State Government
referred the case to the Tribunal for Disciplinary Proceedings and
the Tribunal for Disciplinary Proceedings had taken up the same,
vide Tribunal Enquiry Case No.135 of 2003 and framed the
following charge against the petitioner:-
2
"CHARGE: That you - Sri J.Venkata Muni, while
working as Mandal Surveyor, O/o.the M.R.O., Puttur,
Chittoor District, I/c of Narayanavanam Mandal
actuated by corrupt motive and in abuse of your official
position demanded and accepted bribe of Rs.400/-
from the complainant Sri Thoti Munna Swamy,
S/o.Thoti Kylasam, Aranyam Govindappanaidu
Kandriga, Harijanawada, Narayanavanam Mandalam,
Chittoor District on 5-10-2002 at 7-15 P.M. at your
office room to do the official favour i.e., sending up the
survey report to the M.R.O., Narayanavanam in respect
of extent and boundaries of the agricultural land in
survey No.111 of Aranyam Govindappanaidu Kandriga
for the purpose of getting registered the land of 2.15
acres, which was under the enjoyment of the
complainant since long time and thereby you are guilty
of misconduct within the meaning of Rule 2(b) of the
A.P.Civil Services (Disciplinary Proceedings Tribunal)
Rules, 1989 framed under the A.P.Civil Services
(Disciplinary Proceedings Tribunal) Act, 1960 as
amended in 1993."
3. During the course of enquiry before the Tribunal for
Disciplinary Proceedings, as many as 6 witnesses, P.Ws.1 to 6,
were examined and Exs.P1 to P16 were marked on behalf of the
Department and on behalf of the defence side, D.W.1 was
examined and Exs.D1 and D2 were marked. The Tribunal for
Disciplinary Proceedings submitted a report dated 26.04.2006,
holding the petitioner guilty of misconduct within the meaning of
Rule 2(b) of the A.P.Civil Services (Disciplinary Proceedings
3
Tribunal) Rules, 1989, and held that the prosecution established
the charge against the petitioner in all probabilities and further
held that the petitioner is liable for punishment under Rule 9(ix)
of the A.P.Civil Services (Classification, Control and Appeal)
Rules, 1991.
4. After receipt of the said report of the Tribunal for
Disciplinary Proceedings, the State Government, while
communicating the said report, issued a show cause notice, vide
Memo No.68730/Vig.IV(2)/2002-11, Rev.(Vig.IV) Dept., dated
01.11.2006, provisionally deciding to impose a suitable penalty
against the petitioner. Subsequently, the Government of Andhra
Pradesh passed an order, vide G.O.Ms.No.974, Revenue
(Vigilance IV) Department, dated 11.07.2007, dismissing the
petitioner herein from service under Rule 9(x) of the A.P.Civil
Services (Classification, Control and Appeal) Rules, 1991.
5. Assailing the validity of the said order of punishment,
the petitioner herein approached the Tribunal by filing
O.A.No.4890 of 2009. The Tribunal, by way of an order dated
04.12.2015, dismissed the said Original Application on the
ground that the charge against the applicant stood proved before
the Tribunal for Disciplinary Proceedings. In the above
background, questioning the validity of the order passed by the
4
Tribunal in O.A.No.4890 of 2009, the present Writ Petition came
to be instituted.
6. Heard Sri C.Srinivasa Baba, learned counsel for the
petitioner and Sri N.Ashwatha Narayana, learned Government
Pleader for Services-I, appearing for the respondents, apart from
perusing the material available on record.
7. Learned counsel for the petitioner contends that the
order passed by the Administrative Tribunal, dismissing the
Original Application filed by the petitioner, thereby confirming
the orders of punishment issued by the State Government in
terms of the report of the Tribunal for Disciplinary Proceedings is
highly erroneous, contrary to law and opposed to the very spirit
and object of the provisions of the Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991, and the Andhra
Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules,
1989. In elaboration, it is further contended by the learned
counsel that in the absence of any evidence to prove the guilt
against the petitioner herein, the Tribunal for Disciplinary
Proceedings grossly erred in arriving at the conclusions; that
having regard to the contradictions in the evidence of the
witnesses examined on behalf of the prosecution, the Tribunal
for Disciplinary Proceedings ought to have exonerated the
petitioner from the charge by treating the case as one of no
5
evidence. It is further contended by the learned counsel that the
evidence of P.W.4-Panchayat Secretary missed the attention of
the Tribunal and that the said witness, in clear and categoric
terms, deposed about the quarrel that took place between the
complainant and the petitioner on 04.10.2002. It is further
submitted by the learned counsel for the petitioner that because
of the said quarrel, the complainant made a false complaint
against the petitioner and implicated him in the false case. It is
also further submitted by the learned counsel that the Tribunal
for Disciplinary Proceedings did not consider the oral and
documentary evidence available on record from proper
perspective. It is further submitted that the alleged agreement
for payment of the amount could not be proved and that the
petitioner went for a survey work on 01.10.2002. It is further
submitted that in the absence of any evidence to demonstrate
the demand and acceptance, the Tribunal for Disciplinary
Proceedings thoroughly went wrong in arriving at the conclusion
against the petitioner.
In support of his submissions and contentions, learned
counsel for the petitioner takes the support of the following
judgments:
1) Union of India v. H.C.Goel1.
2) Kuldeep Singh v. Commissioner of Police and others2.
1
AIR 1964 SC 364
2
(1992) 2 SCC 10
6
3) K.Sitaram v. The Vice Chancellor, S.V.University,
Tirupati and another3.
4) Sher Bahadur v. Union of India and others4.
5) M.V.Bijlani v. Union of India and others5.
6) Moni Shankar v. Union of India and another6.
8. Per contra, strongly resisting the Writ Petition and the
contentions advanced by the learned counsel for the petitioner,
learned Government Pleader for Services-I contends that by
adducing cogent and convincing evidence, the guilt of the
petitioner herein could be proved by the Department before the
Tribunal for Disciplinary Proceedings. It is further maintained
by the learned Government Pleader that in the absence of any
procedural infirmity during the enquiry, the order of punishment
passed by the State Government, as confirmed by the Tribunal
by way of the impugned order, is not amenable for judicial review
under Article 226 of the Constitution of India. It is further
submitted by the learned Government Pleader that in view of the
consistent and corroborative evidence available on record and
which was taken into consideration by the Tribunal for
Disciplinary Proceedings, while arriving at the conclusions, the
order of punishment warrants no interference of this Court.
Learned Government Pleader places reliance on the
following judgments:
3
2000(2) A.P.L.J. 473 (HC)
4
(2002) 7 SCC 142
5
(2006)5 SCC 88
6
(2008)3 SCC 484
7
1) Union of India v. Sardar Bahadur7.
2) Bank of India and another v. Degala
Suryanarayana8.
9. In the light of the pleadings available on record and
the contentions advanced by the learned counsel for the
petitioner and the learned Government Pleader, the following
points emerge for consideration of this Court:
(1) Whether the order passed by the Tribunal, which is
impugned in the present Writ Petition, confirming the
order of punishment passed by the State Government,
while agreeing with the report submitted by the
Tribunal for Disciplinary Proceedings, in facts and
circumstances of the case, is sustainable and tenable?
(2) Whether the petitioner herein is entitled for any
relief from this Court under Article 226 of the
Constitution of India?
10. The essence of the case of the petitioner, as advocated
by the learned counsel for the petitioner, is that since the charge
against the petitioner herein could not be proved by adducing
evidence, the Tribunal for Disciplinary Proceedings grossly went
wrong in concluding that the prosecution established the charge
against the petitioner. On the other hand, the sum and
substance of the case of the respondents, as presented by the
learned Government Pleader, is that in view of the availability of
7
Decided by the Hon'ble Supreme Court in Civil Appeal NO.1758 of 1970 on 29.10.1971
8
Decided by the Hon'ble Supreme Court in Appeal (Civil) No.3053-54 of 1997 on 12.07.1999
8
cogent and convincing evidence adduced by the Department, the
report of the Tribunal for Disciplinary Proceedings, holding that
the charge against the petitioner stood proved, cannot be faulted
by any stretch of imagination. It is a settled and well-established
principle of law that the invocation of the jurisdiction of this
Court under Article 226 of the Constitution of India for issuance
of a Writ, in the nature of writ of certiorari, is permissible only
under three contingencies. They are: (i) when the action/order
impugned suffers from jurisdictional error; (ii) when the action/
order suffers from patent perversity; and (iii) when an action/
order suffers from the infirmity of violation of the principles of
natural justice. The issues in the present Writ Petition are
required to be examined, assessed and adjudicated in the light of
the said principle of law. A perusal of the report of the Tribunal
for Disciplinary Proceedings, which is filed as a material along
with the present Writ Petition, reveals that the said Tribunal
placed strong reliance on the evidence of P.Ws.1 and 2 to come
to a conclusion that the petitioner herein demanded and received
the amount from the complainant. It is the categoric version of
the petitioner that it is a case of no evidence at all. Therefore,
the depositions of P.Ws.1 and 2 are required to be verified
carefully.
11. P.W.1-Sri T.Munuswami, on whose complaint, the
Anti Corruption Bureau set the law into motion, deposed that
9
though the petitioner demanded initially Rs.500/-, he agreed to
pay Rs.400/- and during the course of cross-examination, he
further stated that he gave the bribe amount to the Charged
Officer when he was inside the office and that there were 3 or
more persons apart from him at that time in the room. In this
context, it needs to be born in mind that it is the case of the
petitioner that the complainant forcibly kept the money in his
shirt pocket, but the prosecution failed to examine the said other
individuals, who were present in the room of the Surveyor when
the alleged incident took place.
12. Coming to the evidence of P.W.2-Town Planning
Officer in the Office of Municipal Corporation, Tirupati - The said
witness, during the course of cross-examination, denied the
presence of other persons in the room of the Charged Officer,
which obviously runs counter to the evidence of P.W.1, referred
to supra. According to the said witness, who acted as a
mediator, he did not enter into the room of the Surveyor and, on
the other hand, waited at the door of the room. During the
course of cross-examination, he categorically deposed that he did
not come inside the room of the Charged Officer, as such, it
cannot be presumed that he had seen the acceptance of the
alleged bribe amount by the petitioner-Charged Officer.
10
13. In this context, reference to the evidence of P.W.4-
Panchayat Secretary, Chavarambakam, Nindra Mandal, gains
significance. According to P.W.4, during the course of cross-
examination, at the time of survey on 04.10.2002, there was a
quarrel between the complainant-P.W.1 and the Charged Officer
with reference to the bifurcation of 6 cents of land. P.W.4
categorically deposed during the course of cross-examination
that the Charged Officer informed P.W.1 at the time of survey on
04.10.2002 that he was going to give a report to the police in the
event of continuation of the said behaviour. Having regard to the
said version of P.W.4, the case of the petitioner, as advanced by
the learned counsel for the petitioner, that the said incident
prompted the complainant to lodge a false complaint against the
petitioner herein cannot be ruled out. These aspects missed the
attention of the learned Presiding Officer of the Tribunal for
Disciplinary Proceedings. In view of the contradictions in the
evidence of P.Ws.1 and 2 and the evidence of P.W.4-Village
Panchayat Secretary, in the considered opinion of this Court, the
Tribunal ought not to have arrived at the conclusions against the
petitioner herein. While dealing with Ex.P.10-Attendance
Register, according to which, the petitioner herein was on camp
on 01.10.2002, the Tribunal for Disciplinary Proceedings came to
a conclusion on presumption, by observing that the
complainant-P.W.1 might have met the petitioner in the office. It
11
is also pertinent to note that P.W.5, who worked as Deputy
Superintendent of Police, ACB, Tirupati Range and who
registered the complaint of the complainant, categorically stated
that Ex.P12-Rough Sketch would not show the presence of P.W.2
at the door of the room of the Charged Officer.
14. In order to examine whether the orders impugned
warrant interference of this Court, reference to the judgments
cited by the learned advocates is highly essential.
(1) In H.C.Goel's case (1 supra), the Hon'ble Apex Court at
paragraph Nos.20 and 23 held as follows:
"20. This conclusion does not finally dispose of
the appeal. It still remains to be considered whether
the respondent is not right when he contends that in
the circumstances of this case, the conclusion of the
Government is based on no evidence whatever. It is a
conclusion which is perverse, and, therefore, suffers
from such an obvious and patent error on the face of
the record that the High Court would be Justified in
quashing it. In dealing with writ petitions filed by
public servants who have been dismissed, or
otherwise dealt with so as to attract Article 311(2), the
High Court under Article 226 has Jurisdiction to
enquire whether the conclusion of the Government on
which the impugned order of dismissal rests is not
supported by any evidence at all. It is true that the
order of dismissal which may be passed against a
Government servant found guilty of misconduct, can
be described as an administrative order: nevertheless,
12
the proceedings held against such a public servant
under the statutory rules to determine whether he is
guilty of the charges framed against him are in the
nature of quasi-judicial proceedings and there can be
little doubt that a writ of certiorari, for instance, can
be claimed by a public servant if he is able to satisfy
the High Court that the ultimate conclusion of the
Government in the said proceedings, which is the
basis of his dismissal, is based on no evidence. In fact,
in fairness to the learned Attorney-General, we ought
to add that he did not seriously dispute this position
in law.
23. That takes us to the merits of the
respondent's contention that the conclusion of the
appellant that the third charge framed against the
respondent had been proved, is based on no evidence.
The learned Attorney-General has stressed before us
that in dealing with this question, we ought to bear in
mind the fact that the appellant is acting with the
determination to root out corruption, and so, if it is
shown that the view taken by the appellant is a
reasonably possible view this Court should not sit in
appeal over that decision and seek to decide whether
this Court would have taken the same view or not.
This contention is no doubt absolutely sound. The
only test which we can legitimately apply in dealing
with this part of the respondent's case is, is there any
evidence on which a finding can be made against the
respondent that Charge No. 3 was proved against
him? In exercising Its jurisdiction under Article 226
on such a plea, the High Court cannot consider the
question about the sufficiency or adequacy of evidence
13
in support of a particular conclusion. That is a matter
which is within the competence of the authority which
deals with the question; but the High Court can and
must enquire whether there is any evidence at all in
support of the impugned conclusion. In other words, if
the whole of the evidence led in the enquiry is
accepted as true, does the conclusion follow that the
charge in question is proved against the respondent?
This approach will avoid weighing the evidence. It will
take the evidence as it stands and only examine
whether on that evidence illegally the impugned
conclusion follows or not. Applying this test, we are
inclined to hold that the respondent's grievance in
well founded, because, in our opinion, the finding
which is implicit is the appellant's order dismissing
the respondent that charge number 3 is proved
against him is based on no evidence."
(2) In Kuldeep Singh's (2 supra), the Hon'ble Supreme Court
at paragraph Nos.6 to 9 held as follows:
"6. It is no doubt true that the High Court under
Article 226 or this Court under Article 32 would not
interfere with the findings recorded at the
departmental enquiry by the disciplinary authority or
the enquiry officer as a matter of course. The Court
cannot sit in appeal over those findings and assume
the role of the appellate authority. But this does not
mean that in no circumstance can the Court interfere.
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
14
can interfere with the conclusions 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.
7. In Nand Kishore Prasad v. State of Bihar, it
was held that the disciplinary proceedings before a
domestic tribunal are of quasi-judicial character and,
therefore, it is necessary that the Tribunal should
arrive at its conclusions on the basis of some
evidence, that is to say, such evidence which and that
too, with some degree of definiteness, points to the
guilt of the delinquent and does not leave the matter
in a suspicious state as mere suspicion cannot take
the place of proof even in domestic enquiries. If,
therefore, there is no evidence to sustain the charges
framed against the delinquent, he cannot be held to
be guilty as in that event, the findings recorded by the
enquiry officer would be perverse.
8. The findings recorded in a domestic enquiry
can be characterised as perverse if it is shown that
such findings are not supported by any evidence on
record or are not based on the evidence adduced by
the parties or no reasonable person could have come
to those findings on the basis of that evidence. This
principle was laid down by this Court in State of A.P.
v. Rama Rao in which the question was whether the
High Court under Article 226 could interfere with the
findings recorded at the departmental enquiry. This
decision was followed in Central Bank of India Ltd. v.
15
Prakash Chand Jain and Bharat Iron Works v.
Bhagubhai Balubhai Patels. In Rajinder Kumar
Kindra v. Delhi Admn. it was laid down that where the
findings of misconduct are based on no legal evidence
and the conclusion is one to which no reasonable man
could come, the findings can be rejected as perverse.
It was also laid down that where a quasi-judicial
tribunal records 8 The findings recorded in a domestic
enquiry can be characterised as perverse if it is shown
that such findings are not supported by any evidence
on record or are not based on the evidence adduced
by the parties or no reasonable person could have
come to those findings on the basis of that evidence.
This principle was laid down by this Court in State of
A.P. v. Rama Rao in which the question was whether
the High Court under Article 226 could interfere with
the findings recorded at the departmental enquiry.
This decision was followed in Central Bank of India
Ltd. v. Prakash Chand Jain and Bharat Iron Works v.
Bhagubhai Balubhai Patels. In Rajinder Kumar
Kindra v. Delhi Admn., it was laid down that where
the findings of misconduct are based on no legal
evidence and the conclusion is one to which no
reasonable man could come, the findings can be
rejected as perverse. It was also laid down that where
a quasi-judicial tribunal records.
9. Normally the High Court and this Court would
not interfere with the findings of fact recorded at the
domestic enquiry but if the finding of "guilt" is based
on no evidence, it would be a perverse finding and
would be amenable to judicial scrutiny. "
16
(3) In K.Sitaram's case (3 supra), the composite High Court
at paragraph Nos.10 and 11 held as follows:
"10. The parameters of judicial review of a
disciplinary proceedings are too well recognized
and settled to merit an exhaustive and detailed
analysis of the governing concepts as has
evolved over a period of time. The concepts,
however, to the extent relevant to the facts on
hand may be summarized as under:
(a) In an application under Art.226 of the
Constitution High Court is not constituted as
a court of appeal against the decision in a
disciplinary proceedings. It is merely
concerned with determining whether the
enquiry is held in accordance with the
procedure prescribed, in conformity with the
principles of natural justice and whether
there is some evidence, which the authority
entrusted with the duty to hold enquiry has
accepted and which evidence may
reasonably support the conclusions that the
delinquent officer is guilty of the charges
alleged.
(b) It is extraneous to the judicial review
function to either review or re-appreciate the
evidence so as to arrive at an independent
finding on the evidence. High Court would
however be within its ordained function to
consider whether the authority has disabled
itself from reaching a fair decision by
considerations extraneous to the evidence
and the merits of the case or by allowing
17
itself to be influenced by irrelevant
considerations or whether the conclusion on
the very fact of it is so wholly arbitrary and
capricious that no reasonable person could
have arrived at that conclusion on similar
grounds - vide State of A.P. vs. Sreerama
Rao (1) AIR 1963 SC 1723.
(c) Disciplinary proceedings by a public
authority constitute a species of
administrative action amenable to the broad
principles and concepts operative on every
administrative action. The validity of an
administrative order which includes the
appreciation of evidence by disciplinary
authority is susceptible to be tested as every
other administrative action on the
touchstone of the tests enunciated by a
catena of authorities including in the
celebrated case Associated Provincial Picture
House Ltd. Vs. Wednesbury Corporation (2)
(148) 1 KB 23. A conclusion even of the
disciplinary authority as to the evidence
considered would be vitiated if it is one
which would be arrived at by no reasonable
person or on no evidence, is irrational or
based on conjectures, surmises or
suspicions-vide Union of India vs.
G.Ganayutham (3) AIR 1997 SC 3387;
R.S.Saini vs. State of Punjab & Ors. (4) 1999
(5) Scale 427.
(d) Even in case of circumstantial evidence
considered as a foundation to arrive at a
18
finding of guilt in a departmental
proceedings it is necessary that the
circumstances on which the conclusion is to
be drawn should be fully established. Facts
established should reasonably support the
conclusions of the enquiring authority and
the chain of circumstantial evidence must be
adequate enough as to avoid any scope for
surmises, conjectures and suspicions needed
to fill up the potential gaps in the chain of
circumstances. In the absence of any direct
authority on the quality of circumstantial
warranted in a disciplinary proceedings this
court has fine tuned the decision of the
Supreme Court in Sharad Birdhichand
Sarda vs. State of Maharashtra (5) AIR 1984
SC 1962 (which is a decision rendered in a
criminal case) to the conceptual requirement
of a disciplinary case.
11. In the case on hand the evidence available
on record and considered by the Board is to the
effect that 4 persons including the petitioner had
access to the Code Nos. given to the answer
scripts. All the four had knowledge of the Code
Nos. Apart from these four, the answer scripts
were easily accessible not only to the other
officers, Jr. Assistants, and Attenders working in
Section B-VI, but to other employees working in
various sections in the building. There is no
evidence at all, even circumstantial, warranting a
conclusion that the petitioner either by himself
or in collusion with the other two officers - the
Supdt., and the Controller of examinations,
facilitated the supply of Code Nos., to the private
candidate. The language employed by the Board
to arrive at the conclusion of guilt or in assessing
the relevant facts clearly discloses that surmises,
conjectures and suspicions fertilized the
conclusions and not evidence even
circumstantial. Such surmises and conjectures
of the Board were passed on as logical and
rational conclusions under the façade of being
based on circumstantial evidence."
(4) In Sher Bahadur's case (4 supra), the Hon'ble Apex
Court at paragraph No.7 held as follows:
"7. It may be observed that the expression
"sufficiency of evidence" postulates existence of
some evidence which links the charged officer
with the misconduct alleged against him.
Evidence, however voluminous it may be, which is
neither relevant in a broad sense nor establishes
any nexus between the alleged misconduct and
the charged officer, is no evidence in law. The
mere fact that the enquiry officer has noted in his
report, "in view of oral, documentary and
circumstantial evidence would not in principle
satisfy the rule of sufficiency of evidence. Though,
the adduced in the enquiry", disciplinary
authority cited one witness Shri R.A. Vashist, Ex.
CVI/Northern Railway, New Delhi, in support of
the charges, he was not examined. Regarding
documentary evidence, Ext. P-1, referred to in the
enquiry report and adverted to by the High Court,
is the order of appointment of the appellant which
is a neutral fact. The enquiry officer examined the
charged officer but nothing is elicited to connect
him with the charge. The statement of the
appellant recorded by the enquiry officer shows
no more than his working earlier to his re-
engagement during the period between May 1978
and November 1979 in different phases. Indeed,
his statement was not relied upon by the enquiry
officer. The finding of the enquiry officer that in
view of the oral, documentary and circumstantial
evidence, the charge against the appellant for
securing the fraudulent appointment letter duly
signed by the said APO (Const.) was proved, is, in
the light of the above discussion, erroneous. In
our view, this is clearly a case of finding the
appellant guilty of charge without having any
evidence to link the appellant with the alleged
misconduct. The High Court did not consider this
aspect in its proper perspective as such, the
judgment and order of the High Court and the
order of the disciplinary authority, under
challenge, cannot be sustained, they are
accordingly set aside."
(5) In M.V.Bijlani's case (5 supra), the Hon'ble Apex Court at
paragraph No.25 held as follows:
"25. It is true that the jurisdiction of the court
in judicial review is limited. Disciplinary
proceedings, however, being quasi-criminal in
nature, there should be some evidence to prove the
charge. Although the charges in a departmental
proceeding are not required to be proved like a
criminal trial i.e. beyond all reasonable doubt, we
cannot lose sight of the fact that the enquiry officer
performs a quasi-judicial function, who upon
analysing the documents must arrive at a
conclusion that there had been probability to prove
the charges on the basis of materials on record.
While a preponderance of doing so, he cannot take
into consideration any irrelevant fact. He cannot
refuse to consider the relevant facts. He cannot
shift the burden of proof. He cannot reject the
relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannot
enquire into the allegations with which the
delinquent officer had not been charged with. "
(6) In Moni Shankar's (6 supra), the Hon'ble Apex Court at
paragraph Nos.7, 17 to 24 held as follows:
"7. Aggrieved by and dissatisfied with the said
judgment of the Tribunal, the respondents filed a writ
petition before the High Court. By reason of the
impugned judgment dated 8th March, 2006 the said writ
petition was allowed by the High Court opining that the
Central Administrative Tribunal in its original order
having entered into the realm of evidence and re-
appreciated the same, exceeded its jurisdiction.
17. The departmental proceeding is a quasi judicial
one. Although the provisions of the Evidence Act are not
applicable in the said proceeding, principles of natural
justice are required to be complied with. The Court
exercising power of judicial review are entitled to consider
as to whether while inferring commission of misconduct
on the part of a delinquent officer relevant piece of
evidence has been taken into consideration and irrelevant
facts have been excluded therefrom. Inference on facts
must be based on evidence which meet the requirements
of legal principles. The Tribunal was, thus, entitled to
arrive at its own conclusion on the premise that the
evidence adduced by the department, even if it is taken
on its face value to be correct in its entirety, meet the
requirements of burden of proof, namely
preponderance of probability. If on such evidences, the
test of the doctrine of proportionality has not been
satisfied, the Tribunal was within its domain to interfere.
We must place on record that the doctrine of
unreasonableness is giving way to the doctrine of
proportionality. (See - State of U.P. v. Sheo Shanker Lal
Srivastava : (2006) 3 SCC 276 and Coimbatore District
Central Cooperative Bank vs. Coimbatore District Central
Cooperative Bank Employees Association and another :
(2007) 4 SCC 669 2007.
18. We must also place on record that on certain,
aspects even judicial review of fact is permissible. E v
Secretary of State for the Home Department: [2004] 2
W.L.R. 1351.
19. We have been taken through the evidence of Shri
S.B. Singh by Dr. Padia. Significantly the examination-in-
chief was conducted by the Enquiry Officer himself. As
the proceeding was for imposition of a major penalty, why
the Presenting Officer, who must have been engaged by
the department, did not examine the witness is beyond
any comprehension. Even the minimum safeguard in
regard to the manner in which examination-in-chief was
conducted has not been preserved. The questions posed
to him were leading questions. It is interesting to note
that in answer to a question as to whether he had asked
the appellant to return Rs.5/-, he not only answered in
the negative but according to him the said statement was
made by him as instructed by the Vigilance Inspector. He
although proved Exhibits P/1 and P/2 which were
written in English language but also stated that he did
not know what had been written therein Strangely
enough, the Enquiry Officer started reexamining him.
Even in the re-examination he accepted that he could not
read and write English.
20. The Enquiry Officer had put the following
questions to the appellant:-
"Having heard all the PWs, please state if you plead
guilty? Please state if you require any additional
documents/witness in your defence at this stage? Do you
wish to submit your oral defence or written defence brief?
Are you satisfied with the enquiry proceedings and can I
conclude the Enquiry?"
21. Such a question does not comply with Rule 9(21)
of the Rules. What were the circumstances appearing
against the appellant had not been disclosed.
22. The High Court, on the other hand, as indicated
hereinbefore, proceeded to opine that the Tribunal
committed a serious illegality in entering into the realm of
evidence. It is permissible in law to look to the evidence
for the purpose of ascertaining as to whether the
statutory requirement had been complied with or not.
23. Dr. Padia would submit that the jurisdiction of
the Tribunal was limited and as some evidence was
adduced, the Tribunal should not have interfered with
the order of punishment imposed upon the appellant.
The Tribunal was entitled to consider the question as to
whether the evidence led by the department was
sufficient to arrive at a conclusion of guilt or otherwise of
the delinquent officer. While re-appreciation of evidence
is not within the domain of the Tribunal, an absurd
situation emanating from the statement of a witness can
certainly be taken note of. The manner in which the trap
was laid, witnessed by the Head Constable and the
legality of enquiry proceeding were part of decision
making process and, thus, the Tribunal was entitled to
consider the same. It was only for the aforementioned
purpose that paragraphs 704 and 705 of the Manual
have been invoked. It may be that the said instructions
were for compliance of the Vigilance Department, but
substantial compliance thereof was necessary, even if the
same were not imperative in character. A departmental
instruction cannot totally be ignored. The Tribunal was
entitled to take the same into consideration along with
other materials brought on records for the purpose of
arriving at a decision as to whether normal rules of
natural justice had been complied with or not.
24. The High Court unfortunately even without any
material on record held that some excess amount was
found from the appellant which itself was sufficient to
raise a presumption that it had been recovered from the
decoy passenger. No such presumption could be raised.
In any event there was no material brought on records by
the department for drawing the said inference. The High
Court itself was exercising the power of judicial review. It
could not have drawn any presumption without there
being any factual foundation therefor. It could not have
taken judicial notice of a fact which did not come within
the purview of Section 57 of the Indian Evidence Act."
(7) Coming to the judgments cited by the learned
Government Pleader -- In Sardar Bahadur's case (7 supra), the
Hon'bel Apex Court held as follows:
"A disciplinary proceeding is not a criminal trial. The
standard proof required is that of preponderance of
probability and not proof beyond reasonable doubt. If the
inference that Nand Kumar was a person likely to have
official dealings with the respondent was one which
reasonable person would draw from the proved facts of the
case, the High Court cannot sit as a court of appeal over a
decision based on it. Where there are some relevant
materials which the authority has accepted and which
materials may reasonably support the conclusion that the
officer is guilty, it is not the function of the High Court
exercising its jurisdiction under Art. 226 to review the
materials and to arrive at an independent finding on the
materials. If the enquiry has been properly held the
question of adequacy or reliability of the evidence cannot
'be canvassed before the High Court (See State of Andhra
Pradesh v. S. Sreo Rama Rao(1). No doubt there was no
separate finding on the question whether Nand Kumar was
a version likely to have official dealings with the
respondent by the Inquiring Officer or the President. But
we think that such a finding was implied when they said
that charge No. 3 has been proved. The only question was
whether the proved facts of the case would warrant such
an inference. tested in' the light of the standard of proof
necessary to enter a finding of this nature, we are satisfied
that on the material facts proved the inference and the
implied finding that Nand Kumar was a person likely to
have official dealings with the respondent were reasonable.
The Division Bench said that the conclusion of the Single
Judge that there was no evidence before the Inquiring
Officer that Nand Kumar was likely to have official
dealings with the respondent was not wholly unwarranted,
and there are limits, to as (1) [1964] 3 S.C.R. 25 at 33, the
powers exercised by a Single Judge under Article 226 of
the Constitution, there are limits to the powers of a
Division Bench while sitting in appeal over the judgment of
a Single Judge. If the inference that Nand Kumar was a
person likely to have official dealings with the respondent
was in the circumstances of the proved facts in the case a
reasonable one, we do not think there was anything which
prevented the Division Bench from interfering with the
order of the Single Judge. In Jugal Kishore Bhadani v.
Union of India(1), the Court observed:-
"It is well established principle of law that unless the
statute otherwise provides an appellate Court has the
same power of dealing with all questions, either of fact or
of law, arising in the appeal before it, as that of the Court
whose judgment is the subject of scrutiny in the appeal."
(8) In Degala Suryanarayana's case (8 supra), the Hon'ble
Apex Court held as follows:
"Strict rules of evidence are not applicable to
departmental enquiry proceedings. The only requirement of
law is that the allegation against the delinquent officer must
be established by such evidence acting upon which a
reasonable person acting reasonably and with objectivity
may arrive at a finding upholding the gravamen of the
charge against the delinquent officer. Mere conjecture or
surmises cannot sustain the finding of guilt even in
departmental enquiry proceedings. The Court exercising the
jurisdiction of judicial review would not interfere with the
findings of fact arrived at in the departmental enquiry
proceedings excepting in a case of malafides or perversity
i.e., where there is no evidence to support a finding or
where a finding is such that no man acting reasonably and
with objectivity could have arrived at that findings. The
Court cannot embark upon re-appreciating the evidence or
weighing the same like an appellate authority."
15. Coming to the case on hand -- As observed in the
preceding paragraphs, this Court finds a lot of contradictions in
the evidence of P.Ws.1 and 2, whose evidence was strongly relied
upon by the Tribunal for Disciplinary Proceedings for arriving at
the conclusions. In the considered opinion of this Court, the
Tribunal for Disciplinary Proceedings thoroughly failed in
appreciating the evidence available on record from proper
perspective and came to the conclusions without there being any
foundation and basis. While dealing with the career and future
of an individual, the Inquiring and Disciplinary Authorities are
required to conduct the proceedings with care, caution and
circumspection and cannot jump into conclusions on the basis of
assumptions and presumptions. As mentioned above, though
Ex.P10 manifestly shows that the Charged Officer was on camp
on 01.10.2002, the Tribunal for Disciplinary Proceedings
presumed that the Charged Officer might have been there in the
office and P.W.1 might have met him. The Tribunal for
Disciplinary Proceedings completely brushed aside the evidence
of P.W.4, a crucial witness and who was a Panchayat Secretary
at the relevant point of time and who, in clear and vivid terms,
deposed about the quarrel between the Charged Officer and the
complainant-P.W.1 on 04.10.2002, i.e., on the date of survey,
i.e., one day prior to the alleged trap. It is a matter of normal
prudence that had there been really an agreement between the
complainant-P.W.1 and the Charged Officer on 01.10.2002, there
would not have been such a quarrel on the date of survey and
there would not have been such a situation where the Charged
Officer informed the complainant that he would lodge a police
complaint. In view of these incurable infirmities in the evidence
adduced by the Department during the course of enquiry, which
cannot be given any credence, the Tribunal grossly erred in
holding against the petitioner. Having regard to the facts and
circumstances of the case and the findings recorded supra and
the judgments relied upon by the learned counsel for the
petitioner in support of his submissions and contentions, the
judgments cited by the learned Government Pleader would not
render any assistance to the case of the respondents herein. The
above narration and the findings recorded supra drive this Court
towards an irresistible conclusion that the impugned action is
neither sustainable nor tenable in the eye of law.
16. For the aforesaid reasons, this Writ Petition is
allowed, setting aside the order dated 04.12.2015 passed by the
Andhra Pradesh Administrative Tribunal in O.A.No.4890 of 2009
and the order of punishment passed by respondent No.1-State
Government, vide G.O.Ms.No.974, Revenue (Vigilance IV)
Department, dated 11.07.2007, and consequently, the
respondents are directed to reinstate the petitioner into service
with all consequential benefits within a period of two months
from the date of receipt of a copy of this order. There shall be no
order as to costs of the Writ Petition.
As a sequel, interlocutory applications pending, if any, in
this Writ Petition shall stand closed.
___________________
A.V.SESHA SAI, J
___________________________
RAVI CHEEMALAPATI, J
Date: 30.04.2022
Note: Issue cc in one week
B/O
siva
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No.24743 OF 2016
Date: 30.04.2022
siva
