s.sesha chary v. ielangrna. HYderabad'

PetitionunderArticle226of|heConstitutionoflndiaprayingthatinthe circumstances stated in the affidavit filed therewith' the High Court may be pleased to lssue a Writ, Order or direction more in the nature of Mandamus declaring the orders passed by the first respondent in No'DS(1)449212012 daled 28-82014 imposing penalty of dismissal from service and the rejection of Appeal by the 2nd Respondent Appellate authority in Memo No 1126/Vig'2/2015 dated 23-3-2ol5isillegal,arbitraryandinviolationofArticlesl4'16and21and311(2) of the constitution of rndia and principres of naturar justice and contrary to Rule 20 of A.P.C.S (CCA) Rules, and consequently declare that the petitioner is entitledtocontinueinservicetillthedateofretirementwithallconsequential benefits i.e. Pension and Retirement benefits' -1.:- IA NO: 10 F 2023 Petition under section '151 cPC praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be preased to permit the petitioner to amend the main prayer as shown above in the interests of justice. Counsel for the petitioner : SRI p.V.RAMANA Counsel for the Respondents: Gp FOR SERVICES It The Court made the following: ORDER 1 wp 8386,2017 NBK. J T H ON'BL ES JU RI STI CE NAG ES IIB HE E T ET P ITI ON No.8 386 of2 017 ORDER: The petitioner' during his tenure as Supervisol in the respondent- Agricultural Marketing Dfartment' was seryed a Charge Memo dated O7.O7.zllzatleging misconduct under Andhra Pradesh Civil Services (classification, control & Appear) Rules, 1991. The allegations in the Charge Memo are to the effect that he tampered his Date of Birth in the Service Records from 07'08'1956 to 07'08'1958' to illegally continue in seryice beyond the actual age of retirement; and that he produced bogus Certifrcate of Study' Cona*t' Date of Birth said to have been issued by the Head Master' ZPHS' Avunoor' Mustabad mandal' mentioning the Date of Birth as 07'08'1958' Petitioner submitted his explanation to the Charge Memo' vide Reply dated 15'11'2012' Pursuant thereto' an Inquiry Officer was appointed'^und tn" petitioner participated in the inquiry' lt is alleged in this writ petition that there was no Presenting Officer to mark the documents for the purpose of enquiry' and the Inquiry Officer himself cannot discharge aout Auti"t i'e'' Presenting Officer and Inquiry Offrcer' and therefore the Inquiry Report submitted by the lnquiry officer is a violation of principles of natural justice and void ab initio; and therefore the Disciptinary Authority cannot rery on the Inquiry Report and impose the punishment of dismissal from service without considering the objections ofthe petitioner; and therefore the Order ofthe 1't respondent- Commissioner & Director of Agricultural Marketing' by Order dated 28.q8.2014 dismissing him from service; and the rejection of appeal by \ \... i I I 2 wp 8386J0t'1 NBK, J the 2d respondent-Appellate Authority vide Order dated 23.03.2015 without recorded reasons for rejecting the appeal are riabre to be set aside. 2. Heard Mr. p.V. Ramana, learned counsel fbr the petitioner; and Iearned Government pleader for Services_Il. perused the record. 3' Leamed counser for the petitioner made submissions on the lines of writ affidavit. He relied on several judgments of the Hon,ble Supreme Court, with particular reference to Kalyani packaging Industry v. union of rndiar in support of the contention that the materiar not placed before the lower authority cannot be considered in the proceedings by the higher authority; and in Oryx f isheries (p) Lfd. V. Union of India2 to contend that recording ofreasons by quasi_judicial authority is necessary to serye the wider principle of natural justice, and that the appellate authority herein has summarily rejected the appeal without mentioning the reasons, and hence the impugned orders are bad in law. 4- Learned Govemment pleader, based on the counter affidavit, contends that the documents (disclosing the date of binh ofthe petitioner) have been examined by both the Inquiry Officer, and also by the author of those documents i.e., the Headmaster, Zilla parishad High School, Avunoor' It is contended that the District Educational officer, Karimnagar, and the Headmaster, Zilla parishad High School, have responded to the enquiry made by the respondent-Department stating that the original Date of Birth of the petitioner as per the School records is 07'08'1956; and therefore the tampering of Date of Birrh to 07.0g.1g5g ' (2004) 6 SCC 719 2 (20t0) 13 SCC 427 t..i - l 3 wp 8386-2017 NBK, J has been proved beyond doubt and hence there cannot be any plea that the witnesses have not been examined' It is further contended that the role of presenting officer is only to assist the Enquiry officer in conducting the enquiry, and to gather al connected records and handover to the enquiry Officer; and in certain cases due to shortage of staff in the Department, a Presenting Officer is not separately appointed and the work of Presenting Officer will be attended by the Enquiry Officer; and therefore there is no obligation to appoint a presenting officer, or any alleged violation of APCS (CCA) Rules' lt is also contended that the appeal has been considered by the Government in detail' and it is not necessary for the appellate authority to pass a speaking order' and the entire case of the petitioner rests on the tnquiry Report' and further it has been proved beyond doubt that the Study Certificate produced by the petitioner claiming to be issued by the Headmaster' ZPHS is a fake/bogus certificate. It is also contended that the request ofthe petitioner for further verification by handwriting experts is onlY to side-track the issue' and therefore there is no illegality in the impugned orders' and the writ petition is devoid of merit' 5. Having considered the respective submissions and perused the record, it may be noted that the essential grievance of the petitioner is that the enquiry officer played a dual role of enquiry officer as well as presenting officer, and therefore the enquiry is vitiated; and there were no witnesses examined in the enquiry; and therefore the disciplinary authority ought not to have dismissed the petitioner from service based on the enquiry report; and further the appellate authority has rejected the \\ 4 wp_83 86_20 I 7 NBK, J appeal petitit)n withour mentioning the reasons for rejection, thereby principles ofnatural justice have been violated.

6. The Hon,ble Supreme Mohammed Ayub Naz3 while Chaturvedi v. Union of Indiaa observed as follows: Court in referring State of Rajasthan v. to the judgment in B.C. . ',When an inquiry is conducted on charges of misconduct by a public servant, the Gourt / Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hord inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or retiability of evidence cannot be permitted to be canvassed before the CouruTribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entifled to hold that th rhe dis c i pr i na ry,, * :' l;J:I J,T:;: ;',::',:. i,lJll irlj; is presented, the appellate authority has co_extensive power to re_ appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Courtfiribunal may interfere where the authority held that the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. lf the conclusion or ".,*' j tjyt,ta, 2006- t-6 (CivitAppeat No.93e of 2003.) " y%scc (6t74s 5 \1'p-8386 2Ut7 NBK J finding be such as no reasonable person would have ever reached' the Court I Tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of that case." departmentaVdisciplinary

7. A perusal of the judgment of the Hon'ble Supreme Court in Mohammad Ayub Naz (sopto;' *outtd show thaf stringent technical rules of the Evidence Act nor proof of fact or evidence' do not apply to proceeding; and the aspect to be seen is whether the enquiry officer is competent to conduct the enquiry' and whether the principles of natural justice have been followed' and whether the findings/conclusions reached are based on some evidence' Further' the reliabilify of evidence (and adequacy of evidence) to impose the punishment) cannot be canvassed before the Court' When the authoriry accepts the evidence and the conclusion/finding reached receives support from such evidence' the disciplinary authority' being the sole judge of facts, can hold the delinquent official guilty of the charge; however' the appellate authority has co-extensive power to re-appreciate the evidence or the nature of Punishment' rn the instant case, the competence ofthe enquiry officer to conduct g. enquiry is not in question' On the ground of alleged tampering/ manipulation in the Date of Birth of the petitioner' disciplinary proceedings were initiated culminating in the dismissal of the petitioner from service. It is the stand of the petitioner that his Date of Birth is 07.08.1958. However, as per the counter affidavit' based on the letter addressed by the District Education Officer' the date of birth of the petitioner is 07.08'1956 \ &&e-. ..j 6 u.p_83 86_20 I 7 NBK, J

9. It is to be noted that the issue of performing dual duties by an enquiry officer (i.e., performing pres enting oflicer duties as well as enquiry officer duties) cannot be the bone of contention in a case of this nature, involving a dispute of date of birth, which is purely a matter of verification with school records. This is not a case where complaints of illegal gratification, extraneous considerations etc., are a,eged against the petitioner that may require examination / cross_examination of complainant, thereby giving rise to potential bias, ifa separate presenting officer is not appointed. or if the enquiry officer is permitted to do the dual duties ofpresenting officer as well as enquiry officer. 10. In the instant case, the counter affidavit reveals that the ,,Study, Conduct & Datc of Birth certificate" (without date of issuance) fumished by the petitioner shows his Date of Birth as 07.0g.195g; and on the contrary, another Study, Conduct & Date of Birth Certificate (signed by Gazetted Headmaster on 25.04.20r 2) reveals that the date of birth of the petitioner is 07.08.1956, and that he studied 5th Class to 7rh Class during 19.07.1965 ro I 7.06. 1968 I 1' Further, the letter addressed by the District Educational officer to the 1't respondent-Commissioner states as follows: "Further, the headmaster ZpHS Avunoor (M) Musthabad has reported that Sri S. Shesha Chary S/o Srinivasa Chary has admifted in 1st class through admission no.262l 6 Date 2_12_1g61and studied upto rv crass i.e., upto 15-7-1965 and again he was admitted in v Clas on 19-7-i965 through admission no.195 and studied upto Vll class upto 17-6-196g. During the two admission numbers his date of birth is recorded as 07{8_1956 (Zero Seven _ Zero Eight _ One a l ,7 *o 8386-2017 NBK, I NineFivesix)'rhe*"i"1'.'"'"rT::".::"-:";i:T#J:fi available in the school._;; X Class {st batch was il; Musthabad is further reporreu "']_---",^""o appeared SSC L""or-"-* o"t'n {979-1980 and students aPPt Examinations in March 1980' ln view of the reports / school records of ZPHSavunoor (M) Musthabad, the date ot firttr tt t'' t' Shesha Chary S/o Srinivasa chary is 07-08-1sse ana ttte reiorts are herewith enclosed for taking further action.''

12. The above letter of District E'ducational Officer would show that the District Educationat Ofn""t had corresponded with the Headmaster of ZPHS School' and the;eadmaster has verifled the records relating to the petitioner, and fumished information stating that the petitioner's date of birth as per the School records is 07'08'1956' When the District Educational Officer' in coordination with the Headmaster' ZPHS School' reported, in writing' certiffing the facts as per the records available in the ZPIfS School/Education Department' the same cannot be said to be perverse, or biased' or without basis of evidence' 13. At this junctufe' it may be noted that even by a layman's calculation, if it is to be accepted that the petitioner was bom in 1958' it would be highly improbable that the petitioner gained admission in l't Class in 1961 i.e', within 3 years of his birth' Therefore' in the nature of facts and circumstances of thp present case, this court sannot countenance the argument that non-appointing of a separate presenting officer had adversely affected the case of the petitioner' In that view of the matter, and considering the judgment oJ the Hon'ble Supreme Court !. j a. 8 *o_",fl#]7 , .1.' in Mohammad Ayub Naz (supra), this Court dr nullify rhe inquiry proceedings merery for the.i:il;i:;I::": presenting officer. j. ] t,t t'

14. The writ petition, or the counter affidav previous i,egaliry or irregutariry on rhe ;t "-XT;:H:::: ;; warranted initiation of a disciplinary proceeding in his service. Therefore, considering his long period of service, this court is incrined to remit the mdtter back to the 2nd respondent-Govemment to reconsider the case of the petitioner, fur taking a lenient view on the punishment imposed. 15. In that view of the matter, the rnatter is remitted back to the2d respondent-appellate Authori[, for reconsideration of the case of the petitioner as per ApCS (CCA) Rules, and pass appropriare orders within a period ofsix weeks from the date ofreceipt ofa copy ofthis order. 16. Accordingry, the writ petition is disposed of. No costs. Miscellaneous petitions pending, if any, shall stand closed. //TRUE COPY// ,."'u3ry??8,!'lHl'-' To, SECTION OFFICER ting,, State of 1 The Commissioner and Director of Agricultural I elangana, Hyderabad. 2. The State of Telanoana c"opu**i"iua jru1..ff 3,f ,.[ffi

3. One CC to SRI p V.RA|VANA, Advocate. tOpUCl 4. Two CCs to Gp FOR SERVTCES il TOUTJ ::f g"?i"T,.j3?n,TJicurtureAnd High Court for the State of Telangana

5. Two CD Copies. W BSK GJP I l l l l I i I HIGH COURT DATED:1Tt}3t2)2s I (, a)' s 21 AUB M i l rl) * :9o2., iC l-t9:t) ORDER WP.No.B386 of 2O1T DISPOSING OF THE WRIT PETITION WITHOUT COSTS T