The Commissioner and Director of Marketing B.R.K Buildings v. Sri. Ch.Ramacha

ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) This writ petition is filed by the Commissioner and Director of Marketing and the State of Andhra Pradesh questioning the order of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal’) in O.A.3183/2004 dated 01.02.2008.

2. The facts in brief are that there were allegations of corruption against the respondent herein and the same was subject matter before the Tribunal for Disciplinary Proceedings (hereinafter referred to as “TDP”). A regular enquiry was held by TDP and submitted its report to the Government in Enquiry Case No.23/2002 on 12.12.2002. On receipt of the said report, the Government considered the said report and under proceedings No.SP/837/Vig.I(3)/2001-12, dated 17.11.2003 the Government differed with the findings of the TDP. In the said proceedings, the Government has indicated its grounds on which the Government differed with the conclusions of the TDP and observed that the case has to be adjudicated taking into consideration the facts and preponderance of probabilities of the case, and the exoneration of the charged officer for the charges levelled against him by the TDP is not in order. However, after coming to the said provisional conclusion, the Government advised the Director of Marketing to consider disagreeing with the findings of the TDP and proceed against the Charged Officer by serving a copy of the report of the TDP along with the aforesaid reasons for disagreement under Rule-6 (2) (b) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules 1989 and refer the matter to the Government after arriving at provisional conclusion.

3. Based on the aforesaid proceedings of the Government, the Director of the Marketing under proceedings No.X(2)422/03, dated

05.03.2004 issued a show cause notice to the respondent herein reiterating the conclusions and reasons given by the Government in its proceedings dated 17.11.2003, referred to above. In the said show cause notice the respondent herein was directed to explain why a punishment of dismissal from service should not be imposed on him and he was asked to submit his explanation within 15 days from the date of receipt of a copy of the said notice. The aforesaid proceedings of the Government and the show cause notice issued by the Director of Marketing were challenged by the respondent in the present O.A. before the Tribunal.

4. In the order impugned herein, the Tribunal had analytically considered as to whether the Government was justified in differing with the conclusions of the TDP and ultimately held that the reasons for disagreement with the report by TDP are baseless and cannot be taken into account, and consequently allowed the O.A. by setting aside the proceedings of the Government and the consequential show cause notice issued by the Director of Marketing. Aggrieved by the aforesaid order, the present writ petition is filed by both the petitioners.

5. We have heard the learned Government Pleader, appearing for the petitioners, and Sri P.V.Ramana, learned counsel, appearing for the respondent.

6. It is contended by the learned Government Pleader that the Government had jurisdiction to differ with the findings of the TDP and in the proceedings dated 17.11.2003, it has indicated various circumstances and the grounds on which it has differed with the conclusions of the TDP. The learned Government Pleader has relied upon the powers of the Government as enumerated under Secs.7 and 8 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act 1960 (hereinafter referred to as “the Act”) as well as the Rules framed under the aforesaid Act vide G.O.Ms.No.304 GAD (Ser.C) dated 03.06.1985. The learned Government Pleader also relied upon Rule-6 (2) (a) & (b) and the second proviso to Clause-(b) and contended that the Government had jurisdiction to differ with the findings raised by the TDP, and as such, the proceedings dated

17.11.2003 issued by the Government, which is one of the impugned proceedings in the O.A. is justifiable in law and should not have been quashed by the Tribunal by going into the merits of the case. The learned Government Pleader, therefore, contended that the Tribunal has exceeded its jurisdiction in examining and giving a finding as to the reasons assigned by the Government in its proceedings dated

17.11.2003 differing with the findings of the TDP. To the extent of the last paragraph of the proceedings of the Government dated 17.11.2003 wherein the Director of Marketing was advised to consider disagreeing with the finding of TDP is concerned, the learned Government Pleader fairly submits that as per the aforesaid provisions of the Act and the Rules it was for the Government to pass appropriate further orders after communicating to the Charged Officer, its reasons for disagreement. The learned Government Pleader, therefore, fairly submits that referring the matter to the Director of Marketing, advising him to issue show cause notice and differing with the findings of TDP was clearly not supported by the Act and the Rules, and to that extent, he submits that that part of the impugned proceedings of the Government may be ignored and treat the proceedings dated 17.11.2003 issued by the Government as a show cause notice by the Government itself, calling upon the Charged Officer to submit his explanation.

7. Sri P.V.Ramana, learned counsel appearing for the respondent submits that the present writ petition is filed by the State when the respondent-charged officer is about to retire from service by the end of this month. He submits that in spite of the report of the TDP exonerating the respondent of all charges, the Government is not at all justified in differing with the said report and the Tribunal was fully justified in considering and coming to the conclusion that there is hardly any material, for the Government to take a different view, differing with the findings of the TDP. The learned counsel for the respondent also submits that the Director of Marketing, which has issued proceedings dated 05.03.2004 had absolutely no jurisdiction and in any case the reference in the said proceedings proposing punishment of dismissal from service etc. is totally without jurisdiction. The learned counsel for the respondent also submits that the Tribunal had relied upon two decisions of the Supreme Court which are referred to in Paragraphs-12 and 14 of the judgment of the Tribunal impugned herein, and therefore, he submits that the facts of the case do not warrant interference by this Court.

8. We have considered the aforesaid submissions.

9. To the extent of the contention of the learned counsel for the respondent, the decision of the Supreme Court in the case of M.V.Bijlani vs. Union of India and others[1] referred to in Paragraph- 12 of the impugned order is concerned, the proposition laid down in the said judgment is with regard to the value of evidence of a witness in considering the disciplinary enquiry. Similarly, the other decision in the case of Coimbatore District Central Cooperative Bank vs. Coimbatore District Central Cooperative Bank Employees Assn. Andanother[2] referred to in Paragraph-14 of the impugned order deals with interference by exercise of judicial review with the findings of the disciplinary proceedings.

10. Both the aforesaid situations do not arise for consideration in the present matter and we are only concerned with the validity of action of the Government where the Government has chosen to differ with the conclusions of the TDP and issued a show cause notice on certain grounds in support of the said disagreement and called for explanation from the charged officer. In fact, the Tribunal below interfered with the proceedings of the Government with the decision itself in exercise of judicial review jurisdiction, though only decision making process could have been examined.

11. Under Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act 1960 the procedure required to be followed the TDP and the Government in conducting disciplinary proceedings is well set out and it cannot be denied that under Secs.7 and 8 thereof the Government is empowered to consider the report of the TDP in the prescribed manner and pass such orders thereon as they think fit.

12. It is appropriate to extract the Rule-6 (2) (a), (b) and (c) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989 hereunder with which we are concerned now to deal with the present matter. Rule-6 (2) (a) In all cases after the enquiry has been completed, the Tribunal shall send its report of findings to the Government within thirty days. However, in cases in which exoneration of Government Servant charged is recommended by the Tribunal, it shall specify, whether the charged officer is “fully exonerated”, for purposes of Fundamental Rule 54(A). Where the Tribunal does not express any such opinion, it shall be presumed by the Government that the Charged Officer is not fully exonerated by the Tribunal. (Subs.by G.O.Ms.no.455, G.A.D., Dt.7-11-2002). (b) The Government, after receipt of the report from the Tribunal for Disciplinary Proceedings, shall supply a copy of the report of the Tribunal to the charged Government servant and shall pass final orders after taking into consideration any representation made by him thereto within a reasonable time, ordinarily not exceeding one month. However, it shall not be necessary to give to the person charged any opportunity of making representation on the penalty proposed to be imposed: Provided that the Government shall consult (the Andhra Pradesh Vigilance Commission) in regard to the course of further action to be taken and the advice consideration, before orders passed. (Sub.by G.O.Ms.No.514, GAD, Dt.15.10.94) Provided further that where the Government disagree with the whole or any part of the Tribunal's findings, the point or points of disagreement together with a brief statement of the grounds therefor shall, in case, where it affects Government servant charged adversely or prejudicially be communicated along with the enquiry report of the Tribunal. (c) The Government may, for the reasons to be recorded in writing, remit the case to the Tribunal for enquiry and report, and the Tribunal shall thereupon hold further enquiry.

13. As mentioned above the present case falls under second proviso to clause-(b) of Sub-Rule-(2) of Rule-6. Under the said proviso the Government issued proceedings dated 17.11.2003 indicating the reasons for disagreement with the findings of the TDP, and it was necessary, therefore, for the Government itself to have issued a show cause notice calling for explanation from the respondent-charged officer, consider the same and pass final order thereon. The last paragraph of the proceedings of the Government dated 17.11.2003, whereunder a part of function was delegated to the Director of Marketing is clearly not in accordance with the Act and the Rules. The learned Government Pleader has fairly accepted that the proceedings issued by the Director of Marketing, no doubt, as per the directions of the Government, is clearly unsustainable and needs to be ignored as non est.

14. Even excluding the said proceedings of the Director of Marketing from consideration, however, we are unable to accede to the contentions of the learned counsel for the respondent that the proceedings of the Government dated 17.11.2003 can be interfered with, as has been done by the Tribunal. Firstly, the said action of the Government in disagreeing with the findings of the TDP was within its jurisdiction, and secondly, it has mentioned its reasons as to why it has disagreed with the said findings. The said proceeding is merely in the nature of a show cause notice indicating the provisional conclusions reached by the Government and only after the respondent-charged officer submits his explanation the said proceedings, Government would consider the matter afresh and take a final decision. The Tribunal below, however, went into the merits of the said provisional conclusions of the Government and proceeded to examine as to whether there was sufficient material for the Government to come to a contrary conclusion. In our view, therefore, the order of the Tribunal below in going into the merits of the show cause notice or the reasons therefor was completely without jurisdiction. In view of this conclusion, therefore, the impugned order of the Tribunal cannot be sustained and is liable to be set aside.

15. However, in order to shorten the litigation and time, instead of remitting the matter to the Tribunal, we deem it appropriate to direct that the said proceedings of the Government dated 17.11.2003 shall be treated as show cause notice. The last paragraph in the aforesaid proceedings, delegating and advising the Director of Marketing to consider disagreeing with the findings etc. shall stand deleted and ignored and the said proceedings shall be treated as show cause notice issued by the Government itself proposing to disagree with the findings of the TDP and calling upon the respondent/charged officer to submit his explanation to the said provisional conclusions, within a period of three weeks from today. On receipt of the explanation from the respondent/charged officer within the time stipulated above, the Government shall consider its provisional conclusion in the light of the explanation submitted by the respondent-charged officer and pass final orders with regard to the said disciplinary enquiry within a further period of four weeks thereafter.

16. The Writ Petition is accordingly allowed, in terms of the directions, referred to above. No order as to costs. ___________________ V.ESWARAIAH,J ___________________________ VILAS V.AFZULPURKAR,J Dated: 10.08.2009 Dsr Note: Furnish copy in one week B/o Dsr