Madras High Court
A.George Benjamin vs The District Forest Officer on 24 June, 2008
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.06.2008
CORAM
THE HON'BLE MR. JUSTICE S.MANIKUMAR
W.P.No.39731 of 2006
A.George Benjamin ... Petitioner
vs
The District Forest Officer,
Kanyakumari Division,
Nagercoil ... Respondent
This petition came to be numbered by transfer of O.A. No.417 of 1999 from the file of the Tamil Nadu Administrative Tribunal, to quash the order of the respondent in his Rc.No.6905/E2/95 dated 15.10.1998.
For Petitioner .. Mr.R.Thamodaran
For Respondent .. Mr.C.Ramesh,A.G.P.
ORDER
The petitioner, has challenged the order dated 15.10.1998 of the District Forest Officer, Kanyakumari Division, Nagercoil, by which a sum of Rs.46,679/- was directed to be recovered at the rate of Rs.1,000/- per month, the first installment being at Rs.1,679/-.
2. The petitioner is a Forester. On 23.01.1995, the District Conservator of Forests received an anonymous petition dated 16.12.1994 to the effect that valuable trees had been cut and removed. The District Forest Officer, Kanyakumari Division conducted an enquiry on the anonymous petition and found that the allegations were baseless. Subsequently, on the basis of some discreet enquiry conducted by the Assistant Conservator of Forests, the petitioner was suspended from service in December 1995 by the respondent, alleging that he was responsible for illegal felling of 21 trees. A charge memo was served on the petitioner in January 1998, for which, he had submitted an explanation. The Assistant Conservator of Forests (Head Quarters), District Forest Office, Kanyakumari Division, Nagercoil was appointed as Enquiry Officer and three witnesses were examined. On the enquiry report dated 18.05.1998, the petitioner submitted his further representation and without considering his defence in proper perspective, the respondent has inflicted a penalty of stoppage of three increments with cumulative effect and also directed recovery of sum of Rs.46,679/- at the rate of Rs.1,000/- per month and a sum of Rs.1,679/- as first instalment.
3. The petitioner has further submitted that the allegations contained in the anonymous petition dated 16.12.1994 was already enquired into by the District Forest Officer, Kanyakumari Division and when the same was found to be false, the matter has been once again proceeded by the Assistant Conservator of Forests (Head Quarters), Kanyakumari Division after two years. The petitioner has further submitted that without conducting any spot inspection and locating the trees alleged to have been cut during his tenure, the Enquiry Officer, has erroneously come to the conclusion that the petitioner was responsible for the illegal felling and therefore, the finding is without any basis, liable to be set aside.
4. The petitioner has further submitted that the area in which the trees were alleged to have been illegally cut and removed falls within Kaani residential area, coming under Mugilodi Range and 24 Forest cases were registered by the Forest Guard Mr.Mohamed Haneefa and therefore, the petitioner and the Beat Guards were vigilant in preventing illicit felling of trees and they have taken adequate action to preserve and conserve the forest produce. For the above said reasons, the petitioner has prayed to quash the penalty of stoppage of increment for three years with cumulative effect and the recovery ordered by the respondent.
5. The respondent, in his counter affidavit has submitted that the petitioner had worked as Forester in Kanyakumari Division, Kulasekaram Section from 31.10.1992 to 08.01.1996. During his tenure in the above station, he was suspended from service, as per District Forest Officer's proceedings dated 28.12.1995. He was lateron reinstated in service on 31.07.1996, as per the order dated 31.07.1996. Subsequently, he was allotted to Gulf of Mannar Marine National Park, Ramanathapuram. The Assistant Conservator of Forests, Forest Protection Squad sent a report dated 09.02.1995, bringing to the notice of the Conservator of Forests, Wild Life Southern Region about the illegal felling of two teak and 8 Ayini trees in the forest range, where the petitioner had earlier worked and on the basis of the same, disciplinary action was initiated against the petitioner. The respondent has further submitted that the petitioner was suspended for illegal felling of 23 teakwood and rose wood trees and also for unauthorised stacking of 73 logs in Thottamalai and Valayamthucki area in February 1995. The respondent has denied the contention that the petitioner was suspended for the allegations relating to illicit felling of 2 teakwood and 18 Ayini trees.
6. Disciplinary action was initiated under Section 17(b) of Tamil Nadu Civil Service (Classification, Control and Appeal) Rules against the petitioner and the Forest Guard Mr.S.Mohammed Haneefa. The charges were enquired into by the Assistant Conservator of Forests (Head Quarters) and the charge levelled against the petitioner was proved. After considering his further representation, final orders were passed by the District Forest Officer, Kanyakumari Division, Nagercoil for his negligence in duty and for the revenue loss caused to the government.
7. The respondent has submitted that the petitioner and the Forest Guard have failed to protect the forest wealth within their jurisdiction and also caused revenue loss to the Government. Accordingly, half of the value of timber, assessed by the Department was directed to be paid by the petitioner and the remaining amount was directed to be paid by the Forest Guard, Mr.Mohammed Haneefa, who had failed to protect the forest produce from illegal fellings. Since the prime responsibility rests with the Forester in protecting the Forest's environment, the petitioner was imposed with the penalty of stoppage of three increments, in addition to recovery of the value of timber illegally cut and removed.
8. The respondent has further submitted that when the Forest Protection Squad party inspected the spot, some of the stumps were burnt with an intention to tamper with the evidence. The Assistant Conservator of Forests and his party, during their surprise inspection also found that hammer marks or numbers or seals were not found on the stumps of illegal fellings. Had the petitioner and the Forest Beet Guard were vigilant in their duties in perambulating the area, they could have prevented the illegal felling and registered criminal cases against the offenders, in which case, they would have affixed hammer marks or painted the O.R. Number on the stumps. The inspection, further revealed that some of the stumps were attempted to be burnt to erase the evidence of illegal cutting. It is the contention of the respondents that when these facts were categorically proved in the enquiry, the same cannot be said as perverse. Therefore, for the proved charges, the petitioner has rightly been awarded with a penalty of stoppage of three years increment with cumulative effect, besides recovery for half of the value of the trees. As the Enquiry Officer has followed the procedure in accordance with the Rules by providing adequate opportunity to the petitioner, there is no violation of principles of natural justice. Considering the gravity of the charges, the punishment awarded is reasonable and not disproportionate. For the above said reasons, the respondent has prayed for dismissal of the writ petition.
9. Heard the learned counsel for the parties and perused the materials available on record.
10. Pleadings disclose that the department, on receipt of an anonymous petition regarding illicit felling of valuable trees, organised an inspection headed by the Assistant Conservator of Forests of the Forest Range, where the petitioner had worked prior to his transfer. The inspection squad found illegal felling of two teakwood trees and 8 Ayini trees in the forest Range. The petitioner, who was a Forester in Kulasekaram Range between 31.10.1992 and 08.01.1996 and another Forest Beat guard Mr.Mohamed Haneefa whose primary duty was to perambulate the Forest area, to prevent illegal felling and conserve the forest produce were proceeded departmentally under Rule 17(b) of Tamil Nadu Civil Service (Classification, Control and Appeal) Rules for their dereliction and negligence in duty.
11. As against the contention of the petitioner that he had discharged his duty diligently and registered cases against the forest offenders, the disciplinary authority has observed that, as a Forester, the petitioner was primarily responsible for preserving and conserving the forest produce and environment and that he should have taken appropriate action against the forest offenders. The enquiry officer on evidence has found that in respect of illegal felling of trees, noticed during inspection, there was no trace of registration of a forest case nor any attempt to recover the produce illegally cut and removed. If any forest offence was registered as contended by the petitioner, there would have been sufficient hammer marks or numbers or seals on the stumps, whereas the inspection squad has clearly noticed that these signs were conspicuously absent. On the other hand, there were attempts to burn the stumps and erase the evidence. The negligence in discharge of their duty is per se evident from the report of the inspection squad. Therefore, there is sufficient evidence to prove that the petitioner had misconducted himself warranting penalty.
12. If they had discharged their duties diligently, they could have taken appropriate action against the offenders under the Forest Act and recovered the forest produce. The impugned order clearly discloses that the Enquiry Officer based on the evidence and after considering the defence in proper perspective has arrived at the conclusion that the petitioner was responsible for the illegal felling during his tenure and that he had failed to take appropriate action against the offenders. The disciplinary authority, having accepted the finding has imposed the penalty as stated above. It is well settled that re-appreciation of evidence is not permissible in disciplinary proceedings. Reference can be had to the following decisions:
13. In Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and others reported in 1997 (3) SCC 657, the Supreme Court at Paragraph 6 of the judgment, answered a question as to whether the High Court would be correct in law to appreciate the evidence, the manner in which the evidence was recorded and record a finding in that behalf. The Court held as follows:
"The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice."
14. The Supreme Court in Commissioner and Secretary to the Government v. C.Shanmugam, reported in 1998(2) SCC 394, considered the case of compulsory retirement, which was interfered by the Tribunal on the ground of absence of evidence. The Apex Court, after dealing with the various judgments on the point and held that only in the absence of any evidence, i.e., no evidence or if there was any perversity, the Court can interfere. At Paragraph 2 of the judgment, the Supreme Court held as follows:
"It is seen from the order of the Tribunal that at the regular departmental enquiry held, the employees who were present at the time of the incident in the office on 02.08.1980 were examined and they all supported the charges (misbehaviour with the superior officer) levelled against the respondent/delinquent. The Tribunal on a re-appreciation of evidence, in judicial review, was of the view that the enquiry report based on such evidence cannot be totally accepted as free from bias and an order passed on such reports cannot be accepted as a fair and just one. Assailing this view of the Tribunal, the learned counsel appearing for the appellants brought to our notice three judgments of this Court reported as State of T.N. v. Subramaniam, Govt. Of T.N. v. A.Rajapandian and State of Haryana v. Rattan Singh. In State of T.N. v. Suibramaniam, a three-Judge Bench of this Court observed as follows: (SCC.pp.511-12, para 5) "The only question is: Whether the Tribunal was right in its conclusion to appreciate the evidence to reach its own finding that the charge has not been proved. The Tribunal is not a Court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323-A and invested the same in the Tribunal by the Central Administrative Tribunals Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record the findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to re-appreciate the evidence and would (sic) come to its own conclusions on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence."
15. In Apparel Export Promotion Council v. A.K.Chopra reported in 1999 (1) SCC 759, the Supreme Court at Paragraphs 16 and 17 held as follows:
"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over he factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the Court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of the fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans reported in 1982 (3) ALL. ER 141 HL observed:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorised or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the Court."
"17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
16. The above position was reiterated in Commandant v. D.Paul reported in 1999 SCC (L&S) 789, and at Paragraphs 4 and 5 of the judgment, the Supreme Court held as follows:
"4. .........It is not the function of the Tribunal to review the decision and to arrive at an independent finding on the evidence and that if there be some legal evidence on which the findings can be based, the adequacy or the reliability of that evidence is not a matter which can be permitted to be canvassed before the Tribunal."
"5. ............ It is settled law that the Tribunal, while exercising its power of judicial review in respect of disciplinary action taken against the a government servant, cannot re-appreciate the evidence adduced to prove the charges in the disciplinary proceedings."
17. In High Court of Judicature at Bombay v. Shashikant S. Patil reported in 2000 (1) SCC 416, while considering the scope of Judicial Review of the decision of the Disciplinary Authority in exercise of powers under Article 226 of the Constitution of India, the Apex Court at Paragraph 16, held as follows:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a Writ Petition filed under Article 226 of the Constitution."
18. In State of A.P. v. S.Sree Rama Rao reported in AIR 1963 SC 1723, the Supreme Court, considering the scope of the Judicial Review, held that, "The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a Writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
19. The above position was once again reiterated by the Supreme Court in Sub-Divisional Officer, Konch v. Maharaj Singh reported in 2003(9) SCC 191. In Paragraph 5 of the judgment, the Court held as follows, "It has been stated by this Court on a number of occasion that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in re-appreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority."
20. After arriving at the value of the trees illegally cut and removed, the respondent has directed the petitioner to pay half of the value of the trees and consequently ordered for recovery from his pay.
21. On the question of proportionality of penalty, the Supreme Court in Union of India and others v. Dwarka Prasad Tiwari reported in 2007 (2) MLJ 278 (SC) has held that the penalty awarded by the disciplinary authority can be interfered with only in the case, where it is shockingly disproportionate to the gravity of the charges and at paragraphs 15 to 17, the Court held as follows:
"15. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury's (supra) the court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
16. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
17. The above position was recently reiterated in Union of India v. K.G.Soni (2006 (6) Supreme 389 : 2006 -III-LLJ 802 (SC) following Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jai, (AIR 2005 SC 584 : (2005) 10 SCC 84 : 2005 -I-LLJ 730 (SC)."
22. Considering the gravity of the charges, I do not think that the impugned penalty is excessive. As regards the contention of discrimination that the Forest Guard namely, Mr.Mohamed Haneefa has been let of only with an order of recovery, whereas, the petitioner has been inflicted with two penalties, viz., stoppage of three increments in addition to recovery, I am of the considered view that being the Forester, the petitioner is primarily responsible for the preservation of the Forest environment. He has failed in his duty in not perambulating the area with the beat Forest guard to register forest offences and he cannot claim equality in punishment. As a person holding higher post with responsibilities, he should have been vigilant and prevented illicit felling, for which he has been rightly inflicted with the penalty of stoppage of increment. There is no question of double penalty also, for the reason that for the misconduct and loss caused to the government, the authorities empowered to inflict the penalty and recover the revenue loss caused to the government.
23. In view of the above, the punishment order does not call for any interference. Hence the writ petition is dismissed. No costs.
gms Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The District Forest Officer, Kanyakumari Division, Nagercoil + 1 cc to MR. R. Thamodaran, CCSR No.32280 + 1 cc to Government Pleader CCSR No.32100 W.P.No.39731 of 2006 RB(CO) SR/27.2.2009