Telangana High Court

M. Shyamal Rao, Secunderabad vs Secy, Law Dept, Hyderabad Another on 5 December, 2022

Bench: P Naveen Rao, J Sreenivas Rao

         HON'BLE SRI JUSTICE P.NAVEEN RAO
                        AND
        HON'BLE SRI JUSTICE J. SREENIVAS RAO

            WRIT PETITION No.31767 of 2013
                     Date:05.12.2022

Between:


M SHYAMAL RAO SECUNDERABAD
S/o Late Sri M Suryanarayana Aged about 60 years Occ Retd
Chairman - Industrial Tribunal - cum Labour Court Presently
R/o Villa No 22 Manasa Sarovar Villas-II Near AWUO Opp
Petrol Bunk Khanajiguda Trimulgiri Secunderabad

                                          .....Petitioner

     And


SECY LAW DEPT HYDERABAD
Rep by its Secretary law Department
Ap Secretariat Hyderabad and another.


                                          .....Respondents

The Court made the following:

HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE SRI JUSTICE J. SREENIVAS RAO

WRIT PETITION No. 31767 of 2013

ORDER : (Per Hon'ble Sri Justice P.Naveen Rao)

Heard learned counsel Sri P.Shashi Kiran for petitioner

and learned standing counsel for High Court for the State of

Telangana Sri J.Anil Kumar for respondents.

2. Petitioner was working as I Additional District Judge,

Kadapa, from 29.04.2008 to 07.06.2010. It was alleged that

he disposed of L.A.O.P.No.1031 of 2001 on 27.11.2008. On

the manner in which the said L.A.O.P., was disposed of,

complaint petitions were filed on 19.01.2009, 28.03.2009 and

02.04.2009, alleging, inter-alia that he awarded compensation

to the structures in favour of 89 claimants without there being

any evidence and without touching the real controversy

between the parties and merely basing on some exhibits

marked in L.A.O.P.No.1031 of 2001. On due consideration of

the complaints and having prima facie found that there is

something in the allegations which require deeper

consideration, the High Court decided to initiate disciplinary

proceedings against the petitioner. A charge memo was drawn

on 17.07.2010 levelling single Charge on petitioner. On due

consideration of the explanation offered by the petitioner and

not satisfied with the explanation offered, petitioner was

subjected to domestic enquiry by appointing an Enquiry

Officer. The Enquiry Officer divided the charge into three

components and independently considered the evidence

brought on record to test whether each of the components

mentioned in the charge levelled against petitioner is

established.

3. The 1st component of the charge framed against

petitioner relates to not giving sufficient opportunity to the

Land Acquisition Officer (for short 'LAO') to raise his specific

contentions by filing counter affidavit in the L.A.O.P.No.1013

of 2001; the 2nd component relates to deciding the issue in

L.A.O.P.No.1013 of 2001 without touching the real

controversy between the parties; and 3rd component relates to

reliance on unauthenticated pencil writings in the deposition

of M.Venkatadri, who was examined as PW.1 in

L.A.O.P.No.1013 of 2001.

4. On evaluation of the evidence brought on record, the

Enquiry Officer held the first component of charge as 'not

proved'. The view taken by the Enquiry Officer for the second

component of charge reads as under:

"25. As could be seen from the order dated 27-11-2009 passed in L.A.O.P.No.1013 of 2001, the claimants did not adduce any oral evidence to substantiate their plea as to what were the nature of structures and in which year they put up structures. Indeed the charged officer while being examined as DW-1 admitted in the cross-examination that he did not record a specific finding after formulating the point for determination in LAOP 1013 of 2001 that the structures were in existence prior to Section 4(1) Notification or on the date of notification........

26. It is crystal clear from the evidence of DW-1 that the claimants have not adduced any oral evidence to substantiate their claim in respect of the structures over the acquired lands. As could be seen from the deposition (Ex.D1) of A.Bayapu Reddy, who was examined as RW-1 in LAOP 1013 of 2001, he did not spell out as to what was the nature of constructions put up by him on the land purchased under an agreement from the pattadars and as to when the land was converted into plots and how he conveyed the plots to other claimants. I am conscious of the fact that the Government filed an appeal assailing the order passed by the charged officer and a Division Bench of this Court has ceased of the same. It is beyond the scope of the enquiry whether the inspection reports dated 7-8-1980 and 22-8-1980 are sufficient to accept the contention of the claimants that they put up constructions prior to Section 4(1) notification. The charged officer as DW-1 admitted in cross-examination that he did not record a specific finding after formulating the point for determination. Therefore, I find that this part of the charge has been proved against the charged officer."

5. With regard to the third component of the charge, the

Enquiry Officer noticed that there were pencil writings in the

deposition of M.Venkatadri, who has been examined as PW.1

in L.A.O.P.No.1013 of 2001, and as PW.2 in the enquiry. It is

asserted that when PW.2 signed on Ex.P1 deposition, there

were no pencil writings and he has asserted that he was not

the person who made the pencil writings in the deposition.

The Enquiry Officer holds that "On thorough examination of the

evidence brought on record, I am in no doubt to conclude that

the pencil writings were made in the deposition of M.Venkatadri

after he signed in the deposition. But, who is the author of the

pencil writings has not been established. A fact remains that by

the time the charged officer dictated the order in LAOP No.1013

of 2001, the deposition of M.Venkatadri contained pencil

writings. The charged officer joined in the judicial department

on 07.10.1985 and gained experience of about 23 years by the

date of his dictating the order."

6. The Enquiry Officer records the findings as under:

"Under Section 53 of the Land Acquisition Act, 1894, the provisions of Civil Procedure Code, 1908, shall apply to all proceedings before the Court under the Act. The charged officer referred the pencil writings in the order. The pencil writings relate to the age of structures and also the relevant date for fixing the quantum. These two dates are crucial for adjudicating

the issue involved in the LAOP. Any prudent judicial officer in the given facts and circumstances, would either recall the witness to confirm with the un-authenticated over-writings in the deposition or send the deposition to the officer, who recorded, for his attestation. The charged officer has not opted either of the two. Therefore, I find that the charged officer is not diligent in considering the unauthenticated pencil over-writings in the deposition of M.Venkatadri. Hence, I find that the 2nd part and 3rd part of the charge against the charged officer have been proved."

7. From the findings recorded by the Enquiry Officer, it is

crystal clear that two components of the charges levelled

against petitioner are proved, and the findings of the Enquiry

Officer are based on evidence brought on record.

8. Learned counsel for the petitioner sought to contend

that as can be seen from the material available on record,

there were structures in existence and appropriate

compensation was determined. Therefore, petitioner cannot be

blamed for awarding higher compensation.

9. The question is not with reference to alleged existence of

structures. The pertinent aspect required to be noticed as

rightly observed by the Enquiry Officer, whether there was any

evidence brought on record in L.A.O.P.No.1013 of 2001 to

support the findings recorded by the charged officer on

existence of structures and awarding higher compensation.

The finding of the Enquiry Officer clearly shows that there was

no evidence brought on record to support the said contention.

Even the claimants have not deposed anything about

existence of structures in L.A.O.P., as on the date of Section

4(1) notification. Therefore, there was no material available on

record to award higher compensation. Further, there were

interpolations in the deposition of PW.1 who is PW.2 in the

domestic enquiry. As rightly observed by the Enquiry Officer,

when the interpolations were not counter signed by the

previous Officer, he ought to have entertained doubt on the

correctness of such interpolations and ought to have recalled

the witness to the witness box to ascertain whether those

depositions were made by him. It is also pertinent to note that

D.Mohan Rao (PW.1) who was PW.2 in the domestic enquiry

asserted that he did not make any pencil writings in the

deposition and there were no such writings on the date when

he signed the deposition.

10. Therefore, we are of the opinion that the finding

recorded by the Enquiry Officer is based on the evidence

brought on record. The writ Court in exercise of power of

judicial review under the Article 226 of the Constitution of

India, cannot re-appreciate such evidence and come to a

different conclusion from the conclusion arrived at by the

Enquiry Officer, as accepted by the disciplinary authority.

11. Learned counsel for the petitioner made elaborate

submissions by taking us through the report of Enquiry

Officer and the other material placed on record, to contend

that no misconduct was committed by the petitioner in

awarding higher compensation and the said higher

compensation awarded by him is upheld by the High Court

and therefore, the respondents grossly erred in initiating

disciplinary proceedings. He further submits that there is no

appropriate material placed on record to hold the petitioner

guilty and in view thereof, the punishment given to him is

liable to be set-aside. In support of these contentions, learned

counsel for the petitioner placed reliance on the decisions of

the Hon'ble Supreme Court in Sher Bahadur Vs. Union of

India and others1, and in Phulbari Tea Estate Vs. Its

Workmen2.

AIR 2002 SUPREME COURT 3030

Civil Appeal No.205 of 1958

12. We have also gone through the decision cited by learned

counsel for the petitioner. On the facts of this case and having

regard to the findings recorded by the Enquiry Officer, we are

of the opinion that the decisions relied by learned counsel for

the petitioner, do not come to the aid of the petitioner.

13. Having regard to the evidence brought on record and

the conclusions arrived at by the Enquiry Officer, we do not

see any error in the disciplinary authority accepting the report

of the Enquiry Officer and recommending imposing

punishment of 25% cut in pension. In the facts of this case

and having regard to the charge levelled against petitioner, we

are also of the opinion that the punishment of 25% cut in the

pension cannot be said as excessive punishment, warranting

interference of this Court.

14. In this writ petition, petitioner is also challenging the

legality and validity of order of retiring him from service on

completion of 58 years of age. Learned counsel for the

petitioner sought to contend that the same amounts to double

punishment and therefore, the same is not valid in law.

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15. Imposing of punishment of 25% cut in pension and

retiring the petitioner from service on attaining 58 years of age

are two independent issues. It is noticed that petitioner was

retired from service on overall assessment of his performance.

The competent authority reviewed the case of petitioner for

assessing the continued utility of service beyond the age of 58

years. On overall review and assessment of the entire material

relating to the performance of petitioner, it was found that the

petitioner was not fit to be continued in the judicial service

beyond the age of 58 years.

16. In Arun Kumar Gupta Vs. State of Jharkhand and

Another3 the Hon'ble Supreme Court considered the issue of

review of performance of the Officers and retirement of judicial

Officers on completion of 50, 55 and 58 years of age. In

paragraph No.16 of the said judgment, the Hon'ble Supreme

Court codified the law on the subject. Paragraph No.16 of the

judgement reads as under:

"16. The law on the subject of compulsory retirement, especially in the case of judicial officers may be summarised as follows:

(i) An order directing compulsory retirement of a judicial officer is not punitive in nature;

(ii) An order directing compulsory retirement of a judicial officer has no civil consequences;

(2020) 13 SCC 355

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(iii) While considering the case of a judicial officer for compulsory retirement the entire record of the judicial officer should be taken into consideration, though the latter and more contemporaneous record must be given more weightage;

(iv) Subsequent promotions do not mean that earlier adverse record cannot be looked into while deciding whether a judicial officer should be compulsorily retired;

(v) The 'washed off' theory does not apply in case of judicial officers specially in respect of adverse entries relating to integrity;

(vi) The courts should exercise their power of judicial review with great circumspection and restraint keeping in view the fact that compulsory retirement of a judicial officer is normally directed on the recommendation of a high-powered committee(s) of the High Court.