Andhra HC (Pre-Telangana)
High Court Of Andhra Pradesh, Rep. By The ... vs G. Narasa Reddy And Anr. on 29 March, 1996
Equivalent citations: 1996(2)ALD(CRI)247, 1996(3)ALT146
JUDGMENT Krishna Saran Shrivastav, J.
1. This writ appeal arises out of the judgment of a learned Single Judge in Writ Petition No. 14008 of 1994 dated 2-12-1994, whereby the learned Single Judge has quashed the order of dismissal of the 1st respondent from judicial service issued by the 2nd respondent vide G.O.Ms.No. 475 Home (SC.B) Department, dated 18th June, 1994 on the recommendation of the appellant.
2. The 1st respondent was a member of the Andhra Pradesh Judicial Service. He was appointed as District Munsif on 7-10-1985. When he was working at Achampet,on 24-12-1990, the District Judge, inpursuance of a complaint, made a surprise visit and prepared an inspection report Ex. P-15. Thereafter, the District Judge on 15-4-1991 submitted a preliminary report Ex. P-21 to the appellant. It was alleged that the 1st respondent had unfairly obtained free bus passes, that he had cut down a tree in the compound of the Court and auctioned it for himself. It was further alleged that he sold by auction timber logs involved in two criminal cases and purchased the same at a low price in the name of fictitious persons. The appellant High Court, on perusal of the preliminary report Ex.P-21, ordered a regular departmental enquiry against the 1st respondent and appointed the District and Sessions Judge, Mahabubnagar as Enquiry Officer on 31-7-1991, who on 26-9-1991 framed the following four charges on the basis of the material collected during the preliminary enquiry:
"CHARGE NO. 1: That you while working as Munsif Magistrate, Achampet was demanding money for disposal of cases and was not taking any steps to record statements Under Section 164 Cr.P.C. You are also obtaining free bus passes for yourself and your children from the Manager, APSRTC Bus Depot, Achampet and in return promised to do favour to the RTC in O.S.No. 95 of 1989 pending against the RTC in your Court, which is unbecoming of a Judicial Officer and that you thereby rendered yourself liable for disciplinary action.
CHARGE NO. 2: That you are in the habit of auctioning properties in criminal cases without giving wide publicity and was managing to see that your relatives purchase valuable items of properties in such auction for meagre amounts and that you got a teak wood tree in the Court compound, cut down to the required sizes and that you sold 17 items of teak wood logs in CP.No. 62 of 1988 for Rs. 910/- and when its face value was more and also got some items of teak wood in Forest Case No. l9/C/ 1988 of Mannanoor, with the help of the staff members of the Court and got it purchased by relatives of yours in the name of Yadigiri Reddy of Uppal for a sum of Rs. 1,460/- when the actual value of the said property was of Rs. 50,000/- which is unbecoming of a Judicial Officer and that you thereby rendered yourself liable for disciplinary action.
CHARGE NO. 3: You conducted the auction of timber of Forest Case in C.P.No. 62 of 1988 on 27-10-1990 for Rs. 550/- in Crime No. 19/C/88-89 and in C.C.No. 15 of 1988 on 12-11-1990 for Rs. 900/- and in both the auctions conducted, bid was knocked down for a very meagre amounts and that the name of the bidders are doubtful and bogus. Actually you are in possession of the said auctioned property with intention to shifting the same to Hyderabad for your own benefit. The records in the said auctions were not properly maintained. A surprise visit made by the then District and Session Judge Sri Gopal Reddy along with Sri S.V. Prasad, Special Mobile Magistrate and Sri Virupakshi, Record Keeper of District Court also resulted in the seizure of the records in the above said auctions. The above said auctions were held by you in order to have wrongful gain and caused wrongful loss to the Government which is unbecoming of Judicial Officer and that you thereby rendered yourself liable for disciplinary action.
CHARGE NO. 4: That you auctioned the forest property involved in a forest offence without any lawful authority after confiscating the same which is bad in law. Your auctions of the forest property is without authority, as the forest produce involved in a forest offence cannot be confiscated by the Court, and much less auctioned by the Court in view of the provisions of Forest Act and Rules. Therefore, your acts in auctioning the forest produce is illegal and, therefore, which is unbecoming of a Judicial Officer and that you thereby rendered yourself liable for disciplinary action."
3. The 1st respondent filed written statement on 25-10-1991 denying the charges.
4. During the course of the enquiry, after recording the part evidence, the Enquiry Officer was transferred and the appellant High Court appointed the Additional District and Sessions Judge, Mahabubnagar as Enquiry Officer on 13-8-1992. Eight witnesses were examined on behalf of the department and two witnesses were examined on behalf of the delinquent officer.
5. On 7-6-1993, the Enquiry Officer submitted his report dated 27-5-1993 in which report the Enquiry Officer came to the conclusion that there were irregularities in the conduct of auctions giving rise to reasonable inference that the teak logs were purchased by the delinquent officer in the name of fictitious persons and found that auction was held without jurisdiction. He also found that Charge No. 1 was not proved. Further, he held that Charge Nos.2 to 4 were proved against the delinquent Officer. The appellant High Court considered the report of the Enquiry Officer and accepted it and on 14-7-1993 issued show cause notice to the delinquent officer with a copy of the report which was served on him. He sent a reply on 12-8-1993 alleging that the enquiry report was based only on surmises and there was no evidence to conclude that the charges levelled against him were proved. The appellant High Court rejected the explanation given in the reply and recommended to the 2nd respondent for dismissal of the 1st respondent from the judicial service. The 2nd respondent, thereafter,, issued the aforementioned G.O. dismissing the 1st respondent from the judicial service.
6. The 1st respondent challenged the aforesaid G.O.Ms.No. 475 Home (SC.B) Department, dated 18-6-1994 in Writ Petition No. 14008 of 1994. The learned Single Judge, after considering the arguments advanced on behalf of the parties to the writ petition, allowed the writ petition on 2-12-1994 on the ground that there is no evidence of corrupt motive warranting the dismissal of the delinquent officer, that in the absenceof legal evidence on record the impugned finding resulting in termination of the 1st respondent is based on suspicion and, therefore, the charges remained unproved.
7. Feeling aggrieved by the impugned judgment, that is the judgment of the learned Single Judge, whereby the order of dismissal of the 1st respondent has been set aside and quashed, the High Court has preferred this writ appeal.
8. We have heard the learned Counsel of both the sides in detail. The learned Counsel of the appellant has taken us to the charges including the statement of facts, the evidence, the report of the Enquiry Officer and some of material on record.
9. It is no longer in dispute before us mat the 1st respondent disposed of C.C. No. 15 of 1988 on 4-5-1990 and had ordered for confiscation of the forest produce, i.e., seven teak logs. Later in C.P.R. No. 27 of 1990 in C.C No. 15 of 1988 he issued auction notice Ex.P-5 for the sale of these seven teak logs and on 27-10-1990 these seven teak logs were sold to one Mr. M. Malla Reddy, son of Gall Reddy for an amount of Rs. 910/- as per auction sheet Ex. P-6. On the same day, the sale proceeds i.e.,Rs. 910/- was deposited in Government treasury vide challan Ex.P-7. The sale certificate Ex.P-11 was also issued to Mr. M. Malla Reddy on the same day. On 3-11-1990 the 1st respondent ordered for the confiscation of seventeen teak logs relating to Crime No. 19/C/88-89 covered by C.P.R. No. 62 of 1988 on the ground that it is a perishable property within the meaning of Section 48 of the Andhra Pradesh Forest Act, 1967 (in short) and ordered for its sale on 12-11-1990 by public auction vide order Ex.P-18. The auction notice Exs. P-8 to P-10 and P-19 were signed by him on the same day. These seventeen teak logs were sold vide auction sheet Ex.P-20 in the name of one Mr.P. Yadi Reddy, son of P. Balreddy for an amount of Rs. 550/- and a sale certificate Ex.P-12 was issued on 12-11-1990 in his name and the sale proceeds of Rs. 550/- was deposited in the Government treasury on 13-11-1990 vide challan Ex.P-13.
10. At the outset it is to be remarked that in Charge Nos. 2 and 3 there appears to be typographical mistakes regarding the case number and the date of auction of seventeen teak logs and seven teak logs and it appears that due to the typographical error it has been mentioned that auction in C.P.R. No. 62 of 1988 was held on 27-10-1990 and auction in respect of seven teak logs was held on 12-11-1990.
11. The learned Single Judge has found that there is nothing in the evidence on record or in the enquiry report in respect of the tree which is said to have been cut in the Court compound and sold and we are in complete agreement with this finding of the learned Single Judge.
12. Because both the sales by auction relate to forest produce, that is teak wood, it would be beneficial to reproduce Section 48 of the Forest Act 1 of 1967.
"48. Procedure in regard to perishable property seized Under Section 44:-
(1) Except where a forest offence has been compounded, the Magistrate may direct the sale of any property seized Under Section 44, which is subject to speedy and natural decay, and if in the opinion of the Officer seizing such property, it is not possible to obtain the order of the Magistrate in time, such officer may sell the property himself, remit the sale proceeds into the nearest Government treasury and make a report of such seizure, sale and remittance to the Magistrate and thereupon the Magistrate shall take such measures as may be necessary for the trial of the accused.
(2) xxxxxx."
13. (a) By reading Section 48 of the Forest Act, it appears that the Magistrate is empowered to direct the sale of any property seized Under Section 44 of the Forest Act which is subject to speedy and natural decay except when, in the opinion of the officers, seizing such property it is not possible to obtain orders of the Magistrate in time.
(b) Section 44 (1) of the Forest Act provides that when mere is reason to believe that a forest offence has been committed in respect of any timber or forest produce, it may be seized by any Forest Officer or Police Officer. Where the offender does not agree in writing to get the offence compounded, it is the option of the Forest Officer seizing the timber or the forest produce so seized to produce it before the duly authorised Forest Officer not below the rank of Assistant Conservator of Forests or to report the matter to the nearest Magistrate about such seizure of the timber or the forest produce. Sub-sections (2-A) to (2-E) of Section 44 of the Forest Act provides the procedure for confiscation of such seized property by Forest Authorities as also appeal to the competent authority. Sub-section (3) of Section 44 of the Forest Act empowers the concerned Forest Officer to release the seized property for safe custody on execution of the bond, if he had already made a report of such seizure to the Magistrate under Sub-section (2) of Section 44 ibid, while Sub-section (4) provides that when such seizure is reported to the Magistrate it gets jurisdiction to pass an order for the disposal of such seized property. Section 45 of the Forest Act provides that where a person is convicted of a forest offence, the Court sentencing him shall order confiscation to the Government of timber or forest produce in respect of which such offence was committed, except where an order of confiscation has already been passed in respect thereof Under Section 44 of the Forest Act. Section 46 of the Forest Act provides that after conclusion of the trial of any forest offence any timber of forest produce in respect of which such offence was committed shall, if it is the property of the Central or the State Government or if it is confiscated Under Section 44 of the Forest Act, be taken possession of under the authority of the Divisional Forest Officer. In any proceedings taken under the Forest Act, or in consequence of anything done under this Act, where a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government as the case may be, until the contrary is proved Under Section 60 of the Forest Act The up-shot of the aforesaid discussion is that a Magistrate is competent to confiscate to the Government any timber or forest produce in respect of which such offence was committed, except where an order of confiscation has already been passed in respect thereof Under Section 44 of the Forest Act, only after recording a finding of conviction and sentencing the accused, and such confiscated timber or forest produce shall be handed over to the authorised Forest Officer. Even if such timber or forest produce is not confiscated it shall be delivered to the authorised Forest Officer presuming it to be the property of the Central or State Government as the case may be, by virtue of Section 60 of the Forest Act. There is deliberate omission of tile word "confiscation" Under Section 48 of the Forest Act and, therefore, a Magistrate is not empowered to confiscate any such timber or forest produce under this Section. Thus it is evident that the Magistrate has jurisdiction to pass order regarding the disposal of such property before or during trial Under Section 44 (4) of the Forest Act or Under Section 457 of the Code of Criminal Procedure by giving it on interim custody to a third person against proper bond, but the Magistrate can neither confiscate nor dispose of such property by selling it either Under Section 44 (4) or Under Section 48 of the Forest Act, though the Magistrate can direct the sale of any such property seized Under Section 44 of the Forest Act and which is subject to speedy and natural decay, either suo motu or on the request of the concerned officer, but the Magistrate himself has no jurisdiction to sell the forest produce Under Section 48 ibid because such sale is to be conducted by the Forest Authorities who are required to deposit the sale proceeds in the Court
14. By no stretch of imagination it can be said that the teak logs in question are the properties which are subject to speedy or natural decay, that is to say, it is not a perishable property. It is common ground that the sold teak logs in question were seized because a forest offence had been committed in respect of the same. A bare look at the order dated 3-11-1990 Ex. P-18 passed by the 1st respondent reveals that seventeen teak logs had been confiscated Under Section 48 of the Forest Act on the ground that it is a perishable property within the meaning of Section 48 ibid and nobody was interested in it There is no whisper in this order that the 1st respondent had visited the place where the property in question had been kept or that it was wet and had invited white ants and these omissions have been admitted by the 1st respondent in his deposition. It is pertinent to note that it has not been put to either PW-4 or PW-5 in their cross-examination by the 1st respondent that he had ever visited the property room which was leaking during the rainy season and had found that teak logs in question were wet and damaged by white ants. In the absence of such suggestion to P.Ws.4 and 5 as also material omission in the order Ex.P-18, it is difficult to conclude that the property room was leaking and due to which the teak logs became wet and were damaged by white ants. If really the teak logs in question were wet and damaged it was for the 1st respondent to establish that because it is natural that in the absence of such evidence it should be presumed that the teak logs in question had neither become wet due to rain water nor were damaged by white ants and, therefore, no fault can be found with the finding of the Enquiry Officer that the teak logs in question were neither damaged by rain water nor by white ants. Thus the act of the 1st respondent in confiscating and selling the forest property was without jurisdiction and in utter disregard of the provisions of Sections 46 and 48 of the Forest Act.
15. PW-4 has testified that on the asking of the 1st respondent to put the file of Crime No. 19/C/88-89 of the Forest Range Officer, Mannanoor, he obtained it from the record room and produced before him. Thereupon the 1st respondent dictated the order Ex.P-18. He has further stated that he put the proclamation of sale Ex.P-19 on the notice board and handed over the other copies of proclamation of sale to Deputy Nazir to send the same to other offices and a day after he reminded him. His statement is contradicted by the evidence of P.W.5 who has stated mat on 3-11-1990 he was on Casual Leave and, therefore, the question of handing over the copies of proclamation of sale to him on 3-11-1990 does not arise. P.W.5 has stated to have sent the copies of proclamation of sale to other offices for display on the notice board. But, there is no evidence on record that the copies of proclamation of sale were displayed on the notice board of other offices. It is noteworthy that the sale proclamation Ex.P-5, which is in respect of the sale of seven teak logs, bears the signature of the persons to whom its copies were sent. But, no such acknowledgment is found on the copies of the sale proclamation Ex.P-19 in respect of the sale of seventeen teak logs. True, that the 1st respondent was not expected to go round to other offices to check whether the notices were displayed in all other offices to which they had been sent, but he would have verified the same on the reverse of the sale proclamation Ex.P-19.
16. The auction date which was originally typed as 14-11-1990 was later on corrected as 12-11-1990 in the impugned order as also in the sale notice. The name of the successful bidder was originally written as Yadagiri Reddy but later we find over figuring and correction of the name as Yadi Reddy in the auction sheet Ex.P-20 as also in the sale certificate Ex.P-12. Signature on auction sheet Ex.P-20 seems to read as Yadagiri Reddy. The place of residence of this successful bidder has been scored out from the auction sheet Ex.P-20 and village Uppal has been written. No other details have been given.
17. There is evidence on record that the auction sheet Ex.P-20 is in the handwriting of PW-5 who had made the relevant entries on the dictation of the 1st respondent. Had the address of the alleged bidders been shown in the auction sheet, the department would have summoned the bidders in an attempt to establish that no person bearing such name resides in the given address. But not writing the address of the alleged auction purchasers the possibility that me 1st respondent with a view to deny the superior officers to verify the truth or otherwise of the allegations did so cannot be ruled out. The auction sheet Ex. P-20 does not bear the date of auction.
18. It would not be out of place to mention that P.Ws.4 and 5 were working under the 1st respondent at the relevant time. They had participated in the proceedings. The auction sheet is in the handwriting of P.W.5. Under these circumstances, it can be legitimately presumed that they were bound to speak that the auctions did take place because it cannot be expected of them to deny their acts and handwriting respectively and to make themselves liable with the 1st respondent for a make-belief sale by auction.
19. We get from the evidence of the 1st respondent that the price of the seized seventeen teak logs was Shown to be Rs. 2,000/- in the seizure memo. The upset price was shown to be Rs. 500/- only in the sale proclamation. The 1st respondent has volunteered in his deposition that the seventeen teak logs had been damaged and, therefore, the price had been reduced from Rs. 2.000/- to Rs. 500/-. There is evidence on record that there are four or five saw mills in Achampet. D.W.2 D. Satish Kumar claims himself to be a saw mill owner. According to the 1st respondent and D.W.2 wood found in the house of the 1st respondent was sold by D.W.2 to the 1st respondent. Under these circumstances, it was expected of the 1st respondent to summon D.W.2 or any other saw mill owner to inspect the alleged seventeen teak logs and to opine regarding their market price because they were dealing in teak timbers and they had up to date idea of the market price. As noted above, there is no legal evidence on record that the seventeen teak logs were damaged by rain water and white ants. Looking to the size of the seventeen teak logs, as mentioned in the sale proclamation Ex.P-19 and the total quantity to be O.8043 c.m.ts., it can be safely presumed with the aid of experience in life, particularly, looking to the quality of the wood that on the relevant date the market price of teak wood was much more than what has been mentioned in the sale proclamation Ex.P-19. In other words, the upset price of Rs. 500/- appears to be too low as shown in the proclamation of sale Ex.P-19.
20. We get from the evidence of PW-1 that on 24-12-1990 during inspection this witness found wood pieces in the enclosed verandah used as office room by the 1st respondent in his residence as also in the adjoining room. His statement is corroborated by the evidence of PW-2. They have not been cross-examined on this point by the 1st respondent who has stated in defence that he had purchased the wood pieces in question on 10-12-1990 from one Satish of Achampet and kept the same in his residence which were found by P.W.I during his inspection on 24-12-1990. On 27-12-1990 he got prepared two chairs with the said wood pieces for Rs. 50/- The receipts are at Exs.D-8 and, D-9 respectively. His statement is corroborated by the evidence of D. Satish Kumar D.W.2. From his evidence it appears that he sent the wood pieces and the receipt Ex.D-8 through the attender of the 1st respondent to him and later on27-12-1990 he got the chairs prepared from the said wood pieces and delivered the chairs to him.
21. PW-1 was the District Judge at the relevant time who had inspected the residence of the 1st respondent on 24-12-1990. It is noteworthy that the 1st respondent did not suggest to him during his cross-examination that immediately after return from vacation after 24-12-1990 he visited and told to him to have purchased the wood pieces from Mr D. Satish Kumar. When the chairs are alleged to have been prepared by D. Satish Kumar DW-2 only on 27-12-1990, there appears to be no earthly reason as to why on 10-12-1990 wood pieces for the chairs were delivered to him only to be kept in his residence upto the date of surprise visit by PW-1 and then again sent back on 27-12-1990 for getting the chairs prepared on the same day and to be sent again on the same day to the 1st respondent. Admittedly, DW-2 is not a Carpenter, then how could he issue the receipt Ex.D-9 being the labour charges for making the two chairs. He does not say that he got the chairs prepared through some Carpenter. Even if it is assumed that he got the chairs prepared from some Carpenter, the receipt Ex.D-9 should have been obtained from the said Carpenter. The attender as also the Carpenter has not been examined by the 1st respondent. DW-2 has not produced his account books though available with him to prove the alleged sale. Under the aforementioned circumstances, no fault can be found with the assessment of the evidence of these two witnesses on these points done by the Enquiry Officer and in recording the finding that Exs.D-8 and D-9 are fabricated documents.
22. Relying on State of Andhra Pradesh v. Sree Ram Rao,, Syed Yakob v. K.S. Radha Krishnan and Railway Board, , New Delhi v. Niranjan Singh, , the following propositions have been laid down regarding the scope of Article 226 of the Constitution of India in dealing with departmental enquiries in the case of State of A.P. v. C. Venkata Rao, "In considering whether a public officer is guilty of misconduct charged against him., the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court need not be applied. If that rule be not applied by a domestic tribunal in any inquiry the High Court in a petition under Art. 226 is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Art. 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Were 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 to review the evidence and to arrive at an independent finding on the evidence. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal."
23. In the case of Union of India v. J. Ahmed, and State of Punjab v. Ram Singh Ex-Constable, , AIR 1992 SC 2188 , it is held that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be carelessness or negligence in discharge of duty and the act complained of bears forbidden quality or character but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. In the case of Union of India v. J. Hamed, , AIR 1992 SC 2188 the delinquent officer has failed to perform his duty efficiently as an administrative officer. The conclusion drawn by the High Court was approved that since the respondent was no longer in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void. While, in the case of State of Punjab v. Ram Singh Ex. Constable, , AIR 1992 SC 2188 the drunken delinquent officer on duty was dismissed from service on the ground that his act constituted gravest misconduct.
24. In the case of V.R. Katarki v. State of Karnataka, , the delinquent officer was a Civil Judge in the Karnataka Judicial Service. He was imputed with misconduct in fixing, in his capacity as Civil Judge" higher valuation than was legitimate of the lands." After holding proper enquiry he was found guilty of misconduct and, therefore, was removed from service which was confirmed by the High Court oh judicial side. In appeal, a request was made to the Apex Court not to go into the question of valuation since that was subject matter of an appeal In the High Court. The Apex Court was pleased to dispose of the appeal holding thus:
"We would like to make a special mention of the position that even if the assessment of valuation is modified or affirmed in an appeal as a part of the judicial process, the conduct of the judicial officer drawable from an overall picture of the matter would yet be available to be looked into. In appropriate cases it may be open to draw inferences even from judicial acts."
This case was quoted with approval in the case of Union of India v. A.K Patnaik, .
25. We have recently observed in the case of K. Someswara Kumar v. High Court of Andhra Pradesh and another in Writ Appeal No. 1415 of 1995 dated 19th March, 1996 mat the law is dearly laid by the Apex Court as regards the circumstances under which judicial functioning of judicial officers attracts disciplinary scrutiny and punitive action. The resultant position is that the conduct of a judicial officer in exercise of his judicial functions can be the subject matter of disciplinary action. We also have to observe that judicial officers exercise sovereign judicial power of the State and that they hold an office of trust. Judicial probity is of utmost importance and it is on this bed-rock that public confidence rests. Disciplinary action taken against the delinquent officer cannot be assailed if from an overall picture of the matter it is found that he acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or that he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of statutory, powers or if he had acted in order to unduly favour a party-it is not necessary that he should have been actuated by corrupt motive."
26. The position of law that emerges from the law laid down by the apex Court and referred to in the preceding paragraphs appears to be that in proceedings under Article 226 of the Constitution of India, the findings of fact cannot be interfered with except when there are some special reasons, mat is, error of law committed by the Enquiry Officer, but investigation of evidence cannot be done. Judicial review is confined to see whether the decision making process was correctly applied or not. The sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts' to an error of law apparent on the face of record. Purpose of judicial review is to ensure that individual receives fair treatment. But, the Court does not sit as an appellate Court to examine order or decision itself. Inferences can be drawn even from judicial acts.
27. True that there is no direct evidence that the value of seventeen teak logs was Rs. 50,000/- at the relevant time and that the delinquent officer, that is to say, the 1st respondent had purchased the teak logs in the name of fictitious persons and it is also true that the sale held on 27-10-1990 regarding the seven teak logs does not appear to be a make-belief affair, yet (i) confiscating seventeen teak logs Under Section 48 of the Forest Act beyond jurisdiction, (ii) over-figuring and alteration in the dates in the proclamation of sale, (iii) over-figuring and changing the name of the highest bidder in the auction sheet and sale certificate, (iv) scoring and changing the place of the residence without giving full address of the successful bidder thereby denying the opportunity to the department to verify whether the purchaser was genuine or not, (v) putting a very low upset price of costly teak logs, (vi) keeping in possession of several wood pieces in the residence, (vii)taking false defence that the wood pieces found in his residence at the time of inspection were duly purchased from a saw mill owner, (viii) preparing false ground for confiscation that seventeen teak logs were damaged by rain water and white ants, and (ix) false mentioning in the order that no body was interested in the teak logs When the concerned Forest Officer appears to be very much interested in it., when considered together, betrays the guilty mind of the 1st respondent and his conduct as a judicial officer smacks of some ulterior motive and we can take note of the features that, the human nature being what it is, there was some bad purpose in passing the order of confiscation of the seventeen teak logs and auctioning the same. Therefore, on the material discussed above, we find that the 1st respondent had not acted innocently in confiscating and selling the property by auction, but had acted in a manner that reflects on his reputation or integrity and indicates that his acts were unbecoming of a judicial officer establishing misconduct in the discharge of his duty.
28. It has been urged on behalf of the 1st respondent that the Enquiry officer has cross-examined him and, therefore, the entire enquiry is vitiated. Reliance has been placed in the case of In Re. G. Vasantha Pai, AIR 1960 Madras 73, Peirce, Leslie & Co. v. Labour Court, 1963 (1) Labour Law Journal, Ramnetra v. Dist. Supdt, , Krishna Nair v. Divisional Supdt. Southern Rly, 1973 (2) SLR 353
29. In the case of In Re G. Vasantha Pai, AIR 1960 Madras 73 the Division Bench of the Madras High Court has held that "the judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points mat the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a Judge and assumes the role of an advocate; and thus the change does not become him well." In this case it is observed mat a Judge should not frequently interfere during the cross-examination of a witness by his advocate with a view to frustrate the cross-examination and in this reference the aforesaid observation has been made.
30. In the case of Peirce, Leslie and Co. v. Labour Court, 1963 (1) Labour Law Journal 797 it was found that during the course of the enquiry an attempt was made to put leading questions in order to get answers in support of the charge and, therefore, it was held that such an enquiry cannot be said to be quite fair.
31. In the case of Ramnetra v. Dist. Supdt, of Police, the Enquiry Officer, who was a Deputy Superintendent of Police, acted as a Judge as well as a prosecutor and not only put leading questions to witnesses but also gave them hints and, thereafter, gave only five days time to the delinquent officer to produce his witnesses in defence. Therefore, it was found that the conduct of the Enquiry Officer exhibited lack of impartiality.
32. In the case of S. Krishnan Nair v. Divisional Supdt, Southern Rly., 1973 (2) SLR 353 it is held. that it is not that a person who faces the charge should not be asked any question by the Enquiry Officer. Normally such statement is taken after the close of the evidence. If the attempt by the Enquiry Officer is not to seek the accused to explain the case against him but to elucidate certain material out of him so that the charge which is otherwise unsubstantiated is proved, the enquiry is certainly vitiated.
33. In the case of M.E. & R. Industries v. Workmen, , it is held that "the Enquiry Officer in a domestic enquiry can put questions to the witnesses for clarification wherever necessary and if he allows witnesses to be cross-examined, thereafter, the enquiry proceedings cannot be impeached as unfair."
34. In this case, the prosecution witnesses have only proved the documents on record. The fact that the 1st respondent had ordered for the confiscation and sale of seventeen teak logs as also sale of seven teak logs by auction has not been disputed by the 1st respondent. The auction sale conducted under his control has also not been denied. On the other hand, in his examination in-chief he has accepted all the documentary evidence. The learned Counsel of the 1st respondent could not demonstrate the prejudice caused to the 1st respondent during his cross-examination. He has been asked about the omission in his order dated 3-11-1990 regarding the condition of the seventeen teak logs, etc., as also regarding the upset price of the same. He was given an opportunity to explain the circumstances. It would not be out of place to mention that at no stage of the proceedings right from beginning to end, this plea has been taken by the 1st respondent who was a senior Munsif Magistrate that due to his cross-examination prejudice has been caused to his case. In the grounds of writ petition the 1st respondent had not taken the ground that the enquiry proceeding has been vitiated because the Enquiry Officer has cross-examined the witnesses including himself. Over and above all, in paras-8 and 9 of his reply dated 12-8-1993 he has alleged that the Enquiry Officer should have put more questions to the witnesses. This shows that he had acquiesced to the act of the Enquiry Officer in putting questions to him and did not raise any objection though it can be presumed that he was very much alive to his right for the simple reason that he was a senior Munsif Magistrate.
35. For the foregoing reasons, we respectfully disagree with the conclusions drawn by the learned Single Judge that without evidence on record the Enquiry Officer has found the 1st respondent guilty of misconduct and the alleged established acts amount to mere irregularities and that the order of the 2nd respondent passed in pursuance of the recommendation of the appellant High Court is liable to be set aside.
36. Imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the appellate authority to interfere with it but not to the High Court or the Administrative Tribunal. The Supreme Court can exercise equitable jurisdiction under Article 136 of the Constitution of India, but the High Court has no such power or jurisdiction under Article 226 of the Constitution of India, vide State Bank of India v. Samarendra Kishore Endow, (1994) 2 SCC 357.
37. In the result, the appeal is allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed holding the orders passed by the appellant and the 2nd respondent are legal and valid. However, in the circumstances of the case, we leave the parties to bear their own costs.