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2024 DIGILAW 695 (AP)

Ch. Srinivasa Rao v. State of Andhra Pradesh

2024-06-24

VENKATA JYOTHIRMAI PRATAPA

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JUDGMENT / ORDER : This writ petition is filed under Article 226 of the Constitution of India, seeking writ of mandamus for the following relief : "...duly setting aside the impugned order of punishment issued by the 3rd respondent vide RC No.8614/2006/M8, dated 19.01.2015 without even referring the explanation dated 11.01.2013 imposing the penalty of withholding of two 2 Annual Grade Increments with cumulative effect besides Recovery of Rs.1,24,859/- and the connected order issued by the 2nd respondent Appellate Authority rejecting the appeal without assigning any reasons vide Proceeding No.8634/2015/A and DC2 dated 04.04.2016 and thereby denying promotion to the post of Forest Range Officer as being arbitrary, illegal vitiated by the delay contrary to the orders issued in G.O. Ms. No.679 dated 01.11.2008 and in violation of Articles 14 and 16 of the Constitution of India and further be pleased to declare that the petitioner is entitled to be considered and promoted as Forest Range Officer with all consequential benefits and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case." 2. The brief facts of the case are as follows : (a) Initially, the petitioner was appointed as a Forest Section Officer on 24.08.2019 and promoted as Deputy Range Officer with effect from 10.07.2005 and working as such at Nallajerla Section, Eluru Division, West Godavari District, Rajahmundry Circle Unit under Zone-II. (b) A charge memo dated 28.12.2006 was issued by the respondent No.3 under Rule 20 of the Andhra Pradesh Civil Services (CC&A) Rules, 1991 alleging that the petitioner committed excess expenditure of Rs.1,66,470/-. (c) After lapse of three years and two months, the Common Inquiry Officer and Presenting Officer were appointed. The petitioner has submitted his explanation denying the allegations leveled against him and a specific plea of delay was taken and he requested to furnish copies of the documents relied in the charge memo. (d) The Inquiry Officer has submitted report on 20.08.2012 i.e., after lapse of more than five and half years from the date of issuance of the charge memo and two and half years from the date of appointment as Inquiry Officer. The findings of the Inquiry Officer were served on the petitioner on 27.12.2012 and the petitioner submitted the further defence statement on 11.01.2013 categorically stating that the amounts are recoverable from the members of Vana Samrakshana Samithi (V.S.S.). The findings of the Inquiry Officer were served on the petitioner on 27.12.2012 and the petitioner submitted the further defence statement on 11.01.2013 categorically stating that the amounts are recoverable from the members of Vana Samrakshana Samithi (V.S.S.). (e) The respondent No.3 issued order dated 19.01.2015 imposing punishment of withholding of two Annual Grade Increments with cumulative effect besides recovery of Rs.1,24,859/-. (f) Against the same, the petitioner has preferred an appeal to the respondent No.2 inter alia contending that the respondent No.3 has omitted to consider that details of apportionment of excess expenditure are not mentioned and that the disciplinary authority did not consider his explanation dated 11.01.2013 wherein, the petitioner submitted all the details of the case. He pleaded that the authority who issued the charge memo was appointed as Inquiry Officer, which is contrary to the rules. (g) The appeal was rejected by the respondent No.2 in a mechanical way without assigning any reasons contrary to the well-established legal principle. (h) The charge memo was issued in the year 2006 for the allegations pertain to the period 2001-05 and the punishment was imposed on 19.01.2015. Punishment was awarded on 19.01.2015. Hence, there is an inordinate and unexplained delay, which is not tenable either in law or as per Rule 20 of the Andhra Pradesh Civil Services (CC&A) Rules, 1991. (i) G.O. Ms. No.679 dated 01.11.2008 stipulates time limit of three years and six months for completion of enquiries. Contrary to the said rule position, the proceedings were continued for nine years without any legal or valid justification. (j) Imposition of punishment was on 19.01.2015. It has effect on his promotion to the post of Forest Range Officer for the panel year 2020-21 as also for the panel year 2018-19 though he stood at Serial No.1. 3. A counter-affidavit has been filed by the respondent No.3 on behalf of all the other respondents denying the allegations made in the writ affidavit and put the writ petitioner to the strict proof of the same. It is averred that; (a) The name of the petitioner was filed at Serial No.1 in the seniority list of Deputy Range Officers, Rajahmundry Circle, Zone-II as on 01.01.2019. It is averred that; (a) The name of the petitioner was filed at Serial No.1 in the seniority list of Deputy Range Officers, Rajahmundry Circle, Zone-II as on 01.01.2019. (b) Withholding of two Annual Grade Increments with cumulative effect, will have adverse effect on his pensionery benefits besides recovery of proportionate excess expenditure of Rs.1,24,859/- from the individual awarded by the respondent No.3 by order dated 19.01.2015. The petitioner committed grave irregularities and caused impact against the forest protection and forest wealth while working as Forest Section Officer, Rajavommangi Section, Rajavommangi Range, Kakinada Division. At that time, the vigilance and enforcement department authorities inspected the Vana Samrakshana Samithi and noticed misappropriation of funds in the forest works by the petitioner and other officers and staff. A report dated 31.07.2006 was submitted by the authorities recommending to take disciplinary action against the petitioner and seven others. (c) The respondent No.3 was appointed as an Inquiry Officer and completed common inquiry and submitted report on 20.08.2012, basing on which, charges were framed and the same are proved against the petitioner. (d) The case was referred to the Government for obtaining vigilance commission advice since the case arose out of the inspection of Vigilance and Enforcement Department, the Government vide Memo dated 07.11.2014, proposed the penalty of withholding of two Annual Grade Increments with cumulative effect rather than for specific period, based on which, the disciplinary authority, awarded penalty and aggrieved by the same, the petitioner preferred he appeal which was rejected by the respondent No.2 vide order dated 04.04.2016. As a sequel to the punishment, recovery of proportionate excess expenditure of Rs.1,24,859/- was from the petitioner by the respondent No.3 by Proceedings dated 19.01.2015. (e) Due to the above procedure, the delay was caused on administrative grounds. Besides the above punishment, the petitioner was also awarded two punishment viz., (i) withholding of one Annual Grade Increment without cumulative effect besides recovery of Rs.18,062/- vide Proceedings dated 22.08.2015 of the respondent No.3 (ii) punishment of CENSURE vide Proceedings dated 27.12.2019 of the respondent No.3. Besides these, three charge memo were pending on the reports of the vigilance and enforcement department. In these circumstances, it is not possible to consider the case of the petitioner for promotion to the post of Forest Range Officer, as these punishments are still in force upto 26.12.2020. Besides these, three charge memo were pending on the reports of the vigilance and enforcement department. In these circumstances, it is not possible to consider the case of the petitioner for promotion to the post of Forest Range Officer, as these punishments are still in force upto 26.12.2020. (f) Forest Range Officer is a Gazette Post and all gazette posts are selection posts. Under Rule 5 of the Andhra Pradesh State and Subordinate Service Rules, 1996, all selection posts shall be made based on merit and ability, and seniority will be considered only where merit and ability are equal. Therefore, the petitioner is not eligible and not entitled for promotion and hence, the writ petition is not maintainable either in law or on facts and is to be dismissed. 4. Heard Sri I. Ravindra Babu, learned Counsel for the petitioner, learned Government Pleader for Services-I appearing for the respondents. Perused the material on record. 5. Learned Counsel for the petitioner would submit that though the provisions of the Indian Evidence Act are not strictly applicable to the disciplinary enquiry, but some semblance of justice should be there and the impugned order is bereft of any reasons for imposing the punishment of withholding two Annual Grade Increments with cumulative effect besides recovery of proportionate excess expenditure of Rs.1,24,859/-. The final order has been passed without considering the grounds pleaded by the petitioner and no reasons were assigned in the order passed by the appellate authority and none of the vigilance officials basing on whose report, enquiry has been conducted. The Vigilance and Enforcement report is the basis of the enquiry and it should be produced and proved by examining the witnesses. Learned Counsel further submits that it is a clear case of violation of principles of natural justice since vigilance report has not been furnished to the petitioner. Learned Counsel would submit that in the year 2001, there was no system of measuring through GPS and the allegations pertain to the period 2001 to 2005 and the punishment, which was imposed on 19.01.2015, while charge memo issued in 2006, are contra to the G.O. Ms. No.679 General Administration (Services-C) Department, dated 01.11.2008. Learned Counsel would submit that the petitioner is deprived of getting his promotion. No.679 General Administration (Services-C) Department, dated 01.11.2008. Learned Counsel would submit that the petitioner is deprived of getting his promotion. Learned Counsel further would submit that though the enquiry report would show that the amounts are recoverable from the members of Vana Samrakshana Samithi, but the amount was recovered from the petitioner. 6. Learned Counsel for the petitioner placed reliance on the judgment of the Hon'ble Apex Court in Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 . Paragraph 14 of the decision reads as under : "14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." (Emphasis supplied) 7. Per contra, learned Government Pleader would submit that there were no vacancies for promotion for the year 2020-22. It is stated that though the vacancies are available for the year 2023-24, three charges are pending against the petitioner and therefore, the petitioner is not entitled for promotion pending enquiry, which is the disqualification. Learned Government Pleader further submits that though there is a delay in concluding the disciplinary proceedings, it is due to administrative reasons. The petitioner was awarded with two other punishments, one is for recovery of Rs.18,062/- withholding of one Annual Grade Increment without cumulative effect vide Proceedings dated 22.08.2015 and also the punishment of censure vide Proceedings dated 27.12.2019. Besides these punishments, three charge memos are pending on the report of the vigilance and enforcement department, as such, he is not eligible to consider for promotion. Learned Government Pleader further submits that the post of Forest Range Officer is a selection post shall be made on the basis of merit, ability and seniority and therefore, prays for dismissal of the writ petition. 8. Learned Government Pleader further submits that the post of Forest Range Officer is a selection post shall be made on the basis of merit, ability and seniority and therefore, prays for dismissal of the writ petition. 8. Needless to say, the punishment imposed against the petitioner is falling under a major penalty, i.e., deferment of two Annual Grade Increments with cumulative effect. The enquiry authority has to follow the procedure contemplated under Rule 20 of the A.P.C.S. (CC&A) Rules, 1991. The pivotal contention of the petitioner is that the enquiry conducted is not in compliance to Rule 20 of the A.P.C.S. (CC&A) Rules, 1991. An elaborate procedure is provided in Rule 20 for imposing major penalties. This Rule is placed in the Part-V i.e., Procedure for Imposing Penalties, of the Rules of 1991. It is also relevant to mention that vide Article 311 of the Constitution of India, no civil servant can be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges. This is however, as mentioned in relation to dismissal, removal or reduction in rank. It is beneficial to refer to few relevant subrules as contained in Rule 20. 9. Sub-rule (4) of Rule 20 states that the Government servant who is to face an inquiry must be delivered a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and copies of the statements of witnesses by which each article of charge is proposed to be sustained, in order to enable him to file a written statement of defence. Sub-rule (10) of Rule 20 provides that on the days fixed for recording the evidence, oral and documentary evidences must be produced and the witnesses shall be examined by the presenting officer first, who may later be cross-examined by or on behalf of the civil servant. It is further provided that the presenting officer is also entitled to re-examine the witnesses on the point that they were cross-examined on. 10. It is further provided that the presenting officer is also entitled to re-examine the witnesses on the point that they were cross-examined on. 10. By virtue of sub-rule (18) of Rule 20, it is necessary that on conclusion of inquiry, the report which is prepared shall have to contain the articles of charge and the statement of the imputation of misconduct or misbehaviour; defense in respect of each charge; assessment of evidence in respect of each article of charge and the findings on each article of charge and the reasons thereof. Further, the Rule embodies that if inquiring authority is not the disciplinary authority, report forwarded to such disciplinary authority shall include the enquiry report as discussed; written statement of defence; and oral and documentary evidence, written briefs if filed by any party. The above sub-rules as contained in the Rules provide a snapshot of how the procedure is built to protect the interests of the employee in these proceedings. 11. For ready reference, the articles of charge framed against the individual is extracted below : Responsible for excess expenditure of Rs.1,66,479/- in (6) VSS viz., Suprapalem, Appalarajupeta, Tallapalem, Sarabhavaram, Ananthagiri and Lagaralo Rajavomangi Section of Rajavommangi Range in Charging areas than actual existence and not taken precautions before charging. 12. The fact remains that the basis of the charge framed against the petitioner is that even though the facility of GPS is available to generate survey maps, he did not utilize the same and got the surveyed sketches prepared on graph-sheets by private persons. The area as arrived at by the GIS Center, when compared with the area as assessed by the charged officer, excess amount of Rs.1,66,479/- has been incurred. There is an over-lapped area of 1.72 hectars in Surampalem VSS. The Vigilance and Enforcement Officials opined that the area could not be obtained without closing the polygons. The Vigilance and Enforcement Officials have noticed that reportedly, treated and untreated areas cannot be distinguished in the field and no survey was taken up before commencing the work or before charging the expenditure. Hence, it is extremely difficult to work out in the field, the actual extent of work done. 13. The reply of the petitioner is to the effect that the work of improvement of degraded forest survey and demarcation was executed by Vana Samrakshana Samithi under the supervision of a nominated Forest Beat Officer. Hence, it is extremely difficult to work out in the field, the actual extent of work done. 13. The reply of the petitioner is to the effect that the work of improvement of degraded forest survey and demarcation was executed by Vana Samrakshana Samithi under the supervision of a nominated Forest Beat Officer. Survey and Demarcation was done duly surveying the treated areas and prepared a map on graph-sheet with the help of consultants of LCE. The difference arrived by Vigilance and Enforcement Authorities was only a technical mistake and that there is every possibility of difference in between the maps drawn manually and the maps drawn with the help of software through computers. It is stated that the responsibility of the Forest Section Officer is only to supervise the work and give proper guidance to the members in execution of the work. The Vigilance Authorities inspected after nine months by that time, the area was generated with coppice shoots and hence, the treated and untreated area is not differentiable in the field. 14. As seen from the vigilance report, they have also opined that it is extremely difficult to work out in the filed to measure the actual extent of work done. The enquiry report reveals that none of the Vigilance and Enforcement Authorities who issued the report was examined to enable the petitioner to cross-examine the witness to prove their innocence. 15. Now it is appropriate to refer to the findings of the enquiry report and it is thus : Analysis and Assessment of evidence : The treatment practice of degraded forest improvement is having several operations like clearance of miscellaneous undergrowth, singling, soil working, SMC etc. Except clearance of misc. growth which is area based, the remaining operations are number based. Generally, the field staff used to carry out the filed survey using prismatic compass. Subsequently, the use of G.P.S. put into use. There may be variation in the survey conducted in both methods, as the G.P.S. reading taken up in the field fed into the system to generate the surveyed sketches. There is no scope to non-closure of polygon, since the last station should be the first station. Further, there is a big gap in between original survey and survey conducted by the V&E Department. There is no scope to non-closure of polygon, since the last station should be the first station. Further, there is a big gap in between original survey and survey conducted by the V&E Department. In between the gap it may not be possible to locate the actual position of the station in view of the tree growth/coppice shoots grown in the Forest areas. The version of the charged officer that the work was executed by the Vana Samarkshana Samithi members under the supervision of the nominated officer (i.e., Forest Beat Officer) and the work of survey and demarcation was done duly surveying the treated areas and prepared the map on graph-sheet with the help of consultants of LCE. In this regard, while sanctioning the estimates the Forest Range Officer should have verified the survey work or atleast the Sub-Divisional Forest Officer should verify and guide the lower staff. The charged officer is also a trained subordinate and the topic of survey is one of the subjects in the fundamental training of Forest Section Officers. Hence, the charged officer is also responsible for the lapses noticed by the inspecting authorities. Further, as per analysis given against the Charge No.1 framed against Sri B. Nageswara Rao, formerly Sub-Divisional Forest Officer, the splitting of estimates into numbers under the competency of Forest Range Officer is procedural lapse. However, the works were executed by the VSS members as per their resolution under the supervision of the Forest Officials and excess charging if any is to be made good from the VSS concerned. Findings of the Inquiry Officer : After careful examination of the articles of charges, explanation of the charged officer and record of enquiry, the findings on enquiry conducted against Sri Ch. Srinivasa Rao, Deputy Range Officer formerly Forest Section Officer, Rajavommangi Section are as follows. Charge is held proved beyond any reasonable doubt. 16. The observations of the enquiry officer are supporting the case of the petitioner. The enquiry officer opined that generally, the field staff used to carry out the field survey by using prismatic compass. Subsequently, the use of GPS put into use. There may be variation in survey conducted in both methods. There is no scope to none-closure of polygon since last station should be the first station. It may not be possible to locate the actual position in view of pre-growth in the forest area. Subsequently, the use of GPS put into use. There may be variation in survey conducted in both methods. There is no scope to none-closure of polygon since last station should be the first station. It may not be possible to locate the actual position in view of pre-growth in the forest area. The work has been executed by Vana Samrakshana Samithi. Extra charging if any, is to be collected from Vana Samrakshana Samithi. The only adverse observation in the enquiry report against the petitioner is that the petitioner is also responsible because he is also a trained subordinate and topic of survey is one of the subject in the fundamental training of Forest Section Officers. Except the above observations, nothing is there against the petitioner. As such, there is some lapse on the part of the petitioner in supervising the issues being Forest Section Officer. The excess charging has been collecting from the petitioner instead of Vana Samrakshana Samithi members. 17. Be that as it may, no reasons assigned for imposing penalty of with holding two Annual Grade Increments with cumulative effect. As seen from the appeal order, it is shorn of any details basing on which the appeal has been rejected. It is relevant to extract the order passed in the appeal vide Proceedings dated 04.04.2016. ORDER The appeal petition of Sri Ch. Srinivasa Rao, Deputy Range Officer, Kannapuram against the punishment of "Imposing a penalty of withhold two Annual Grade Increments with cumulative effect which will have adverse effect on his pensionary benefits besides recovery of proportionate excess expenditure of Rs.1,24,859/-" awarded by the Conservator of Forests, Rajahmundry vide Proceeding No.8614/2006/M8, dated 19.01.2015, Is hereby rejected. CCF This order is issued in-duplicate. Sri Ch. Srinivasa Rao, Deputy Range Officer, Kannapuram, Rajahmundry Circle is requested to re-submit the duplicate copy, with dated acknowledgement Immediately. 18. Summary refusal by an appellate authority without appreciating the material placed and grounds pleaded before it is unknown to law. Viewed from any angle, the way in which, the disciplinary proceedings conducted is in violation of the Rules envisaged under CCA Rules 1991. In that view, the interference of this Court is warranted in the impugned order under Article 226 of the Constitution of India. 19. Viewed from any angle, the way in which, the disciplinary proceedings conducted is in violation of the Rules envisaged under CCA Rules 1991. In that view, the interference of this Court is warranted in the impugned order under Article 226 of the Constitution of India. 19. Accordingly, the writ petition is allowed and the impugned order dated 19.01.2015 issued by the respondent No.3 is set aside and the petitioner is entitled for all consequential benefits. Coming to the point of promotion, the post to which the petitioner is to be promoted is a selection post, the case of the petitioner for promotion may be considered subject to governing rules and law. No order as to costs. 20. As a sequel, pending applications, if any, shall stand closed.