Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs V.Venkateswarlu on 26 September, 2022
1
THE HON'BLE SRI JUSTICE A.V. SESHA SAI
&
THE HON'BLE SRI JUSTICE V. SRINIVAS
W.P. Nos.27872 OF 2022 & 5399 OF 2019
COMMON ORDER:(per A.V. Sesha Sai, J) Since these two Writ Petitions arise out of a common order of the Andhra Pradesh Administrative Tribunal (hereinafter called as " the Tribunal"), this Court deems it appropriate to dispose of these Writ Petitions by way of a Common Order.
2. The respondents in O.A.No.5619 of 2015 assail the order dated 24.10.2018 passed by the Tribunal in W.P.No.5399 of 2019 whereas the applicant in the said Original Application seeks implementation of the said order in W.P.No.27872 of 2022.
3. For the purpose of brevity, this Court deems it apt and apposite to refer to the parties as per their status in the Original Application.
4. The applicant was an Extension Officer in Panchayat Raj Department, Government of Andhra Pradesh. Pursuant to a decision taken by the State Government, the 2 disciplinary proceedings initiated against the applicant were entrusted to the Tribunal for Disciplinary Proceedings while asking the Director General, Anti Corruption Bureau, to furnish relevant records and material to the Tribunal for Disciplinary Proceedings vide Memo No.1199/Vig.IV.A1/2006-8, dated 05.06.2007. The said reference came to be registered as T.E.C. No.31 of 2007 on the file of the Tribunal for Disciplinary Proceedings and the following charge was framed against the applicant:
"CHARGE:-"That you, Sri V. Venkateswarlu, while working as Extension Officer, Panchayat Raj & Rural Development holding FAC of the post of MPDO, Pedabayalu Mandal, Visakhapatnam District were actuated by corrupt motive and in abuse of your official position demanded on 1.12.2005, 16.1.2006 and 19.1.2006 and accepted on 19.1.2006 at 13.30 hours at your office a bribe of Rs.1,000/- from the Complainant, Sri T.V. Thota Rao, Junior Assistant, O/o. MPDO, Bhimili for doing official favour of Drawing the salary for his duty period from 11.9.2005 to 16.11.2005 when he worked at Gomangi village as Panchayat Secretary in Pedabayalu Mandal and for sending LPC and Service Register to MPDO, Bhimili and thereby you are guilty of misconduct within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964 read with Rule 2(b) of A.P. Civil Services (Conduct) Rules, 1964 read with Rule 2(b) of 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."
5. In order to substantiate its case, the department adduced oral evidence by examining P.W. Nos.1 to 7 and filed Exs. P.1 to P.21 and MOs. 1 to 10, whereas on behalf of the 3 defence, D.W.1 was examined and Exs.D.1 to D.4 were filed. The Tribunal for Disciplinary Proceedings framed the following point for consideration:
"Whether the prosecution is able to substantiate the charge levelled against the charged officer or not?"
6. The Tribunal for Disciplinary Proceedings submitted its report in T.E.C.No.31 of 2007, dated 11.01.2010 holding that the charge against the applicant stood proved. Vide Memo No.1199/Vig.IV/A1/2006-12, dated 01.11.2013, the Government called for explanation from the applicant on the report submitted by the Tribunal for Disciplinary Proceedings and the applicant submitted his explanation on 03.12.2013. Thereafter, the State Government issued G.O.Ms.No.14, Panchayat Raj & Rural Development (Vig.III) Department, dated 11.02.2015 inflicting on the applicant the punishment of dismissal from service. Questioning the validity and legal sustainability of the said order, the applicant by invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, filed O.A.No.5619 of 2015 before the Tribunal and the Tribunal vide its order dated 24.10.2018 allowed O.A. No.5619 of 2015, setting aside the order of punishment with 4 a consequential direction to the first respondent/State Government to reinstate the applicant into service with full back wages, within a period of one month from the date of receipt of a copy of the order. Challenging the validity and the legal sustainability of the aforesaid order, W.P.No.5399 of 2019 came to be instituted by the respondents in the Original Application. Seeking implementation of the said order, the applicant has filed W.P.No.27872 of 2022.
7. Heard Sri N. Aswartha Narayana, learned Government Pleader for the petitioners in W.P.No.5399 of 2019 and respondents in W.P.No.27872 of 2022 and Sri J. Sudheer, learned counsel for respondent in W.P.No.5399 of 2019 and petitioner in W.P.No.27872 of 2022, apart from perusing the entire material available on record.
8. It is contended by the learned Government Pleader that the order of the Tribunal is highly erroneous, contrary to law and is a result of failure on the part of the Tribunal in appreciating the material available on record in a proper perspective. It is further contended that, by adducing cogent and convincing evidence, the department proved/ established guilt of the applicant, as such, the Tribunal grossly erred in 5 allowing the Original Application and that the evidence of P.W. Nos.1,3,4,5 & 6 clearly shows that the applicant demanded and accepted the illegal gratification. In support of his contentions, learned counsel for the applicant placed reliance on the Judgment of the Hon'ble Apex court in State of Punjab Vs., Madan Mohan Lal Verma1.
9. On the contrary, Sri J. Sudheer, learned counsel for the applicant contends that there is no illegality nor there exists any procedural infirmity in the impugned action and in the absence of the same, the order of the Tribunal is not amenable for any judicial review under Article 226 of the Constitution of India and no interference of this Court is warranted. It is further contended that there are a number of contradictions in the evidence of prosecution witnesses, as such, the Tribunal for Disciplinary Proceedings erred in giving credence to the same instead of discarding the same. It is also the submission of the learned counsel that the evidence of the complainant-P.W.1 is untrustworthy and that the prosecution miserably failed in establishing the elements of demand and acceptance by the applicant, which are sine 1 2013 Law Suit (SC) 701 6 qua non for holding an employee guilty of the charge. It is further argued by the learned counsel that P.W.3 did not address any letter to Bhimili office till 03.02.2006 for clearing LPC of the complainant, as such, it cannot be presumed that the applicant kept the application of the complainant pending for illegal gratification. It is further submitted that the evidence of D.W.1-Panchayat Secretary, Bhimili, would demonstrate the same.
10. In the above background, now the points that emerge for consideration and adjudication by this Court are:
1. Whether the order of the Tribunal having regard to the facts and circumstances of the case is sustainable and tenable?
2. Whether the order of the Tribunal warrants any interference of this Court under Article 226 of the Constitution of India by way of judicial review?
11. The entire case of the department obviously rests on the evidence of P.Ws. 1 and 3 and the result of the Phenolphthalein test conducted by the A.C.B., officials. P.W.1 is the complainant, basing on whose complaint, the A.C.B., conducted raid. The allegation/accusation made by the complainant/P.W.1 is that for clearing his L.P.C., the applicant demanded the amount and accepted the same. 7 These aspects are very serious and grievous in nature and if it is proved to be correct, the same would undoubtedly tarnish the reputation, image and respect of an individual in the society, as such, they are required to be established by the department by adducing cogent and convincing evidence for the purpose of inflicting the punishment. In this context, it would be appropriate and apposite to refer to the relevant provisions of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989. With an intention to provide for the constitution of a Tribunal for Disciplinary Proceedings to enquire into allegations of misconduct on the part of the Government Servants and for other matters connected therewith, the State of Andhra Pradesh enacted the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960. Section 3 of the said legislation obligates the State Government to constitute the Tribunal for Disciplinary Proceedings and Section 5 of the said legislation deals with power of the Tribunal to summon and examine the witnesses and to direct production of documents and appointment of an assessor. Sections 3 and 5 of the A.P. Civil Services 8 (Disciplinary Proceedings Tribunal) Act, 1960, read as follows:
"3. Constitution and Composition of Tribunal:-
(1) The Government shall constitute a Tribunal for disciplinary proceedings consisting of one or more members.
(2) The Government may, at any time, by order, appoint one or more additional members to the Tribunal for such period as they may think fit or reduce the number of members of the Tribunal.
(3) Every member of the Tribunal shall be Judicial Officer of the status of a District Judge and his appointment shall be made by the Government out of a panel of names forwarded by the High Court.
(4) If the Tribunal consists of more than one member, one of the members shall be designated by the Government as the Chairman of the Tribunal."
"5. Power of the Tribunal to summon and examine witnesses, to direct production of documents and to appoint an assessor:- (1) The Tribunal shall, for the purpose of conducting an inquiry under this Act, have the powers of a civil court while trying a suit, under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely:
(i) Summoning and enforcing the attendance of any person;
(ii) Requiring the discovery and production of any document; and
(iii) Issuing commissions for the examination of witnesses or documents.
(2) The Tribunal may examine on oath any person supposed to be acquainted with the matter under inquiry or any fact relevant thereto, and may record his evidence.
(3) Every person who is examined under sub-section (1) shall be bound to answer truly all questions relating to the matter put to him by the Tribunal.9
(4) Any person who wilfully or without reasonable excuse, disobeys any summons or order issued under the foregoing sub-sections shall be liable to the penalties laid down for the disobedience of the summons or order issued by a civil court.
(5) The Tribunal, may if it so things fit, appoint any person as assessor to assist it in conducting an enquiry into any case or cases referred to it."
12. Sub-section (3) of Section 6 of the said legislation stipulates the procedure to be followed by the Tribunal at any such inquiry shall, subject to the provisions of sub-sections (1) and (2), be such as may be prescribed.
13. In exercise of the powers conferred under Sub-section (1) of Section 10 of the said legislation, the State Government framed the Rules called "the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989. Rule 4 of the said Rules stipulates that on completion of enquiry or investigation as the case may be, the Anti Corruption Bureau or the Departmental authority or any other agency viz., Crime Branch, Criminal Investigation Department, Director General, Vigilance and Enforcement or any Enquiry Officer appointed by a Government Department shall submit a report in each of the cases to the Government. Sub-rule (2) of Rule 4 enables the Government to examine such records and after 10 consulting the Head of the Department concerned, if necessary, decide whether the case shall be inquired into by the Tribunal. Sub-rule (3) of Rule 4 stipulates that if the Government decides that the case shall be enquired into by the Tribunal, they shall send or cause to send, as the case may be, the records relating there to the Tribunal.
14. Rule 6 of the said Rules deals with the procedure to be followed by the Tribunal. Clause (a) of Sub-rule (1) of Rule 6 of the said Rules mandates the Tribunal to frame appropriate charges and communicate them to the Government servant charged, together with a list of witnesses proposed to be examined in respect of each of the charges and with information as to the date and place of enquiry. Clause (c) of Rule 6(1) of the Rules stipulates that oral and documentary evidence shall be first adduced by the prosecution and the Government servant charged shall be entitled to cross examine the prosecution witnesses. The said provision also enables the Government servant charged to file written statement of his defence together with a list of witnesses. Another important provision of law for the purpose of adjudication of the issue in the present Writ Petition is 11 Clause (d) of Sub-rule (1) of Rule (6) of the Rules which mandates, in clear and unequivocal terms, that the Tribunal shall, as far as possible, observe the basic rules of evidence relating to the examination of witnesses and marking of documents and the said provisions of law also mandate strict adherence to the principles of natural justice.
15. It is very much manifest from a reading of the above provisions of law that the language employed in the above provisions of law in general and Rule 6(1)(d) in particular which mandate adherence to basic principle of law obviously indicates that the proof beyond reasonable doubt is necessary for holding a person guilty of charge.
16. In order to verify whether the Tribunal for Disciplinary Proceedings adhered to the same while recording findings against the petitioner, reference to the evidence on record is necessary. P.W.1-complainant deposed that initially on 16.01.2006, he met the charged officer in his office and put forward the difficulties before the charged officer and that the charged officer stated that he had to meet the Junior Assistant of the office and that the charged officer stated that money had to be paid in order to get the work done. P.W.1 12 also stated that he met the Junior Assistant and narrated all the facts. According to Ex.P.16-attendance register, the said Junior Assistant/P.W.4 did not attend the office on 16.05.2005 and the same missed the attention of the Tribunal for Disciplinary Proceedings. Another important aspect is that the amount was not recovered from the pocket of the applicant and even as per the version of the respondents, the same was placed under the plank on the table.
17. The case of the applicant is that P.W.1 forcibly put the money in his pocket and when he resisted, P.W.1 placed the said amount under the plank on the table. Another significant aspect which needs mention in this context is that P.W.1 in his cross-examination categorically stated that the charged officer refused to accept money when he offered the money and when the charged officer refused to accept the money he kept the money in his shirt pocket. In the considered opinion of this Court, this aspect goes to the very root of the matter and it is fatal to the case of the prosecution. The finding of the Tribunal for Disciplinary Proceedings that the same is humanly impossible to keep the 13 money in the shirt pocket is untenable and such attempt on the part of P.W.1, having regard to his evidence, cannot be ruled out. Therefore, the irresistible conclusion which can be arrived at is that the basic elements of demand and acceptance which are sine quo non are conspicuously absent in the case on hand. In this context, it may be appropriate to refer to the Judgment of the Hon'ble Apex Court referred to supra. In the said judgment, the Hon'ble Apex Court at para 6 and 7 held as follows:
"[6] It is a settled legal proposition that in exceptional circumstances, the appellant court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse, i.e., if the conclusions arrived at by the court below are contrary to the evidence on record; or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellant court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide: Abrar v. State of U.P., 2011 AIR (SC( 354 Rukia Begum v. State of Karnataka, 2011 AIR (SC) 1585 and State of Madhya Pradesh v. Dal Singh & Ors., 2013 AIR (SC) 2059.
[7] The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to 14 fasten guilt, in the absence of any evidence with regard demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the fundamental facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person (Vide: Ram Prakash Arora v. The state of Punjab, 1973 AIR (SC) 498 T. Subramanian v. The state of T.N., 2006 AIR(SC) 836 State of Kerala & Anr. V. C.P. Rao, 2011 6 SCC 450; and Mukut Bihari & Anr. v. State of Rajasthan, 2012 11 SCC 642).
18. According to the evidence of P.W.4, Junior Assistant, he prepared the pay bill of P.W.1 and put up the same before the charged officer on 24.12.2005. By giving credence to the said statement, the Tribunal for Disciplinary Proceedings came to a conclusion that the applicant delayed the process only for the purpose of extracting the money. But, the fact remains that till 03.02.2006, such exercise was not undertaken and the 15 same would be very much evident from the evidence of D.W.1 and Ex.D.1. D.W.1 is Village Revenue Officer, who categorically deposed that P.W.3 addressed a letter to the Secretary, Gomangi Panchayat on 03.02.2006 under Ex.D.2, calling for the details of the working days of P.W.1 during the period from 10.09.2005 to 16.11.2005.
Therefore, the conclusion arrived at by the Tribunal for Disciplinary Proceedings with regard to delay in clearing the file of the P.W.1, cannot be attributed to the applicant.
19. Coming to the order passed by the Andhra Pradesh Administrative Tribunal, the Tribunal on a careful and meticulous analysis of various issues by taking into consideration the exhibits marked and also the evidence of P.W.1, which is full of contradictions and untrustworthy, allowed the Original Application.
20. Though the learned Government Pleader placed reliance on the Judgment of the Hon'ble Apex Court in Principal Secretary, Government of A.P., Vs., M. Adinarayana2 and the Judgment of the Division Bench of the Hon'ble High Court of Andhra Pradesh R De Sequaira 2 (2004)12 SCC 579 16 Vs., Government of Andhra Pradesh3, having regard to the provisions of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and the rules framed there under, referred to supra, the Judgments sought to be relied upon by the learned Government Pleader would not render any assistance to the case of the petitioners in W.P.No.5399 of 2019.
21. 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, seeking a Writ in the nature of a Writ of Certiorari, is impermissible unless the order impugned suffers from jurisdictional error and patent perversity or passed in the violation of principles of natural justice. These contingencies are conspicuously absent in the order passed by the Tribunal. Therefore, this Court is not inclined to meddle with the well-reasoned order passed by the Andhra Pradesh Administrative Tribunal.
22. For the aforesaid reasons, W.P.No.5399 of 2019 is dismissed. W.P.No.27872 of 2022 is disposed, of directing the respondents in the Writ Petition to implement the order of 3 1975(2) LLJ 148 17 the Andhra Pradesh Administrative Tribunal passed in O.A.No.5619 of 2015, dated 24.10.2018, as expeditiously as possible, preferably within a period of three (03) month from the date of receipt of a copy of this Order. There shall be no order as to costs.
23. Miscellaneous petitions, if any pending in this case, shall stand closed.
__________________ A.V. SESHA SAI, J _______________ V. SRINIVAS, J Date: 26.09.2022 Ks 18 THE HON'BLE SRI JUSTICE A.V. SESHA SAI & THE HON'BLE SRI JUSTICE V. SRINIVAS W.P. Nos.27872 OF 2022 & 5399 of 2019 (per A.V. Sesha Sai, J) Date: 26.09.2022 Ks