Full Judgment Text
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CASE NO.:
Appeal (civil) 1104 of 2008
PETITIONER:
DIVL. FOREST OFFICER, KOTHAGUDEM & ORS
RESPONDENT:
MADHUSUDHAN RAO
DATE OF JUDGMENT: 08/02/2008
BENCH:
A.K. MATHUR & ALTAMAS KABIR
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 1104 OF 2008
[@ SPECIAL LEAVE PETITION (CIVIL) NO. 297 OF 2006]
ALTAMAS KABIR, J.
1. Leave granted. Delay condoned.
2. This appeal at the instance of the Divisional Forest
Officer, Kothagudem and other officers of the Ministry of
Forests, Government of Andhra Pradesh is directed against the
judgment and order dated 9.3.2005 passed by the Division
Bench of the Andhra Pradesh High Court dismissing the Writ
Petition No. 3817 of 2005 filed by the appellants herein.
3. The Writ Petition was filed challenging the order
dated 23.11.2004 passed by the Andhra Pradesh
Administrative Tribunal, Hyderabad, in O.A. No. 1157 of 2002
allowing the same and directing that the respondent herein be
reinstated in service.
4. From the materials as disclosed, it appears that the
respondent herein was appointed as a "Forester" on 7.4.1994
and was posted in Section Komararam from 7.4.1994 to
24.8.1996. According to the appellants, during the said period
the appellant was advanced funds to carry out different works
under the Andhra Pradesh Forestry Project. Despite having
received such funds, he did not undertake the said work and
disciplinary proceedings were initiated against him on the
following charges:
"1. (a) Neglect of duty with mala fide intention
by not depositing the Government funds in the
Joint Account (Bank) thereby causing
embezzlement of Government money of Rs.
10,000/-
(b) by false expenditure and producing the
fabricated vouchers without executing the
work amounting to embezzlement of
Government money of Rs. 54,625.00,
(c) by not maintaining the muster rolls and
non-payment of wages of Rs.4865.00 to the
labourers, resulting in embezzlement of the
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money.
2. Misappropriation of Rs. 580.00 collected
towards C’fees, by not issuing CF.140 receipt to the
accused."
Having been found guilty of both the charges by the Divisional
Forest Officer, the following punishment was imposed upon
the respondent, namely,
(i) (5) Annual Grade Increments was stopped with
cumulative effect apart from recovery of
Government losses of Rs. 64,725/- at the rate
of Rs. 500/- per month in (130) installments;
(ii) The suspension period from 24.8.1996 to
17.4.197 be regularised towards Earned Leave
available to the respondent.
5. Aggrieved by the said order of punishment passed
by the Divisional Forest Officer, Kothagudem, the respondent
filed an appeal to the Conservator of Forests, Khammam
Circle, Khammam. The said authority upon going through the
materials was of the view that it was a clear case of
misappropriation of Government funds which entailed more
punishment than had been awarded by the Divisional Forest
Officer. The respondent’s case was, therefore, reopened in
terms of Rule 18(2) of the Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991 and a show
cause notice was issued to the respondent in terms of Rule
37(2)(v) directing him to show cause as to why he should not
be removed from service. Upon considering the reply
submitted by the respondent, the Conservator of Forests
passed order dated 11.7.2001 dismissing the respondent from
service.
6. A revision petition filed by the respondent before the
Principal Chief Conservator of Forests, Andhra Pradesh was
partly allowed by his order dated 19.11.2001 to the extent that
the order of "dismissal from service" was modified to "removal
from service". It may be indicated that neither the
Conservator of Forests, Khammam Circle, Khammam, nor the
Chief Conservator of Forests, Andhra Pradesh, in their
separate orders gave any reasons as such for maintaining first
the punishment as imposed by the Divisional Forest Officer
and thereafter the enhanced punishment of dismissal passed
by the Conservator of Forests.
7. It is against the said orders that the respondent
moved the Andhra Pradesh Administrative Tribunal, which
after considering the matter in detail formulated the following
points for consideration in the case:
(a) Whether the order of the appellate authority is
vitiated and liable to be set aside?
(b) Whether there are any procedural lapses, which are
not pointed out by the appellate authority?
(c) Whether entertainment of appeal without condoning
the delay is bad?
(d) What decision have and given in this matter?
8. The Tribunal observed on a careful consideration of
the submissions made that all that was found in the appellate
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authority’s order dated 11.7.2001 was a narration of charges
made against the respondent and it did not independently
apply its mind to the materials before it before proceeding to
dispose of the matter. The Tribunal also took note of the fact
that a copy of the Enquiry Officer’s report had not been
supplied to the respondent although the same was mandatory
under Rule 20 of the Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules. It observed that
even the said aspect had not been considered by the appellate
authority.
9. It was also noted that although it was mandatory on
the part of the Government to consult the Public Service
Commission in case of passing an order of removal from
service, such consultation does not appear to have taken place
as the counter affidavit filed was silent in that regard.
10. On consideration of the aforesaid facts, the Tribunal
concluded that the appellate authority had not exercised its
independent discretion while awarding the enhanced
punishment of removal from service.
11. The reasoning of the Administrative Tribunal was
duly considered and endorsed by the High Court in the Writ
Petition filed by the appellants herein. The High Court
observed that although the appellate authority had the power
to enhance the punishment, it was also the duty of the
appellate authority to consider the grounds and then only to
reject the appeal. The High Court also observed that though
in the same proceeding, the appellate authority came to a
conclusion that the punishment was required to be enhanced,
without considering the grounds raised by the respondents, it
simply enhanced the punishment, which was illegal and
contrary to law. On the said reasoning, the High Court
dismissed the Writ Petition filed by the appellants.
12. Appearing in support of the appeal, Mr. H.S.
Gururaja Rao, learned Senior Advocate, submitted that while
confirming an order against which an appeal has been
preferred, the appellate authority is not required to pass a
reasoned order since the order impugned was before him and
he was merely endorsing the same.
13. In support of his aforesaid submission, Mr.
Gururaja Rao referred to a Constitution Bench decision of this
Court in State of Madras Vs. A.R. Srinivasan [AIR 1966 S.C.
1827], which was a case involving compulsory retirement of a
civil servant in which the aforesaid question had arisen.
Repelling the argument of Mr. Setalvad that even while
affirming an order, an authority acting in a quasi-judicial
character should indicate some reasons as to why it accepted
the findings of the lower forum, this Court held that having
regard to the material which is made available to the State
Government, it would be somewhat unreasonable to suggest
that the State Government must record its reasons why it
accepted the findings of the Tribunal. This Court went on to
observe further that even while differing with the order of the
lower forum, the State Government was merely required to
give reasons why it differs though it was not necessary that
such reasons should be detailed or elaborate. The conclusion
arrived at by the Constitution Bench was that where the State
Government agrees with the findings of the Tribunal which are
against the delinquent officer, it could not be said as a matter
of law that the State Government could not impose penalty
against the delinquent officer in accordance with the findings
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of the Tribunal, unless it gave reasons to show why the said
findings were accepted by it.
14. In this regard reference was also made to two other
decisions of this Court; (i) Som Datt Datta Vs. Union of India
& Ors. [(1969) 2 S.C.R. 177], and (ii) Tara Chand Khatri Vs.
Municipal Corporation of Delhi & Ors. [(1977) 1 S.C.C. 472]
where the aforesaid sentiments were reiterated. Mr. Gururaja
Rao urged that since this was a serious matter involving
embezzlement of Government funds, the lacuna in the orders
passed by the appellate and revisional authorities should not
be taken as fatal, since the Divisional Forest Officer had dealt
with the charges and the response of the respondents thereto
in great detail.
15. Mr. D. Ramakrishna Reddy, learned counsel
appearing on behalf of the respondent, however, submitted
that both the Administrative Tribunal as also the High Court
had correctly come to the conclusion that neither the appellate
authority nor the revisional authority had applied their minds
to the appeal and the revision preferred by the respondent and
the orders passed by the said authorities had been correctly
set aside by the Administrative Tribunal on such basis.
Learned counsel further urged that certain mandatory
provisions of the Andhra Pradesh Civil Services (Classification,
Control and Appeal) Rules, had not been followed and as
rightly pointed out both by the Tribunal as also the High
Court, although the Conservator of Forests as the appellate
authority was empowered to enhance the punishment
awarded by the Divisional Forest Officer, he was required to
deal with the response to the show cause notice with more
application, instead of simply enhancing the punishment
without giving any reasons therefor. He also urged that non-
supply of the Enquiry Officer’s Report was another fatal defect
under Rule 20 of the aforesaid Rules. He urged that the order
of the High Court did not warrant any interference and the
appeal was liable to be dismissed.
16. In support of his submissions, Mr. Ramakrishna
Reddy referred to the decision of this Court in R.P. Bhatt Vs.
Union of India & ors. [(1986) 2 S.C.C. 651] wherein it was
observed that while considering an appeal against an order
enhancing any penalty under the Central Civil Services
(Classification, Control and Appeal) Rules, requirements of
Rule 27(2) must be complied with and consideration would
mean a finding of satisfaction as to whether the procedure laid
down in the Rules had been complied with and if not complied
with, whether such non-compliance had resulted in violation
of any of the provisions of the Constitution or in failure of
justice. Mr. Ramakrishna Reddy submitted that the three
cases cited by Mr. Gururaja Rao had already been referred to
and ultimately the appeal was allowed with the direction on
the concerned authority to dispose of the appeal before him
afresh after applying his mind to the requirements of Rule
27(2) of the Central Civil Services Rules, 1965.
17. The next case referred to by Mr. Reddy is Ram
Chander Vs. Union of India & ors. [(1986) 3 S.C.C. 103]
where the decision in R.P. Bhatt’s case (supra) was followed.
18. Having considered the submissions made on behalf
of the respective parties and also having regard to the detailed
manner in which the Andhra Pradesh Administrative Tribunal
had dealt with the matter, including the explanation given
regarding the disbursement of the money received by the
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respondent, we see no reason to differ with the view taken by
the Administrative Tribunal and endorsed by the High Court.
No doubt, the Divisional Forest Officer dealt with the matter in
detail, but it was also the duty of the appellate authority to
give at least some reasons for rejecting the appeal preferred by
the respondent. A similar duty was cast on the revisional
authority being the highest authority in the Department of
Forests in the State. Unfortunately, even the revisional
authority has merely indicated that the decision of the
Divisional Forest Officer had been examined by the
Conservator of Forests, Khammam wherein the charge of
misappropriation was clearly proved. He too did not consider
the defence case as made out by the respondent herein and
simply endorsed the punishment of dismissal though reducing
it to removal from service.
19. It is no doubt also true that an appellate or
revisional authority is not required to give detailed reasons for
agreeing and confirming an order passed by the lower forum
but, in our view, in the interests of justice, the delinquent
officer is entitled to know at least the mind of the appellate or
revisional authority in dismissing his appeal and/or revision.
It is true that no detailed reasons are required to be given, but
some brief reasons should be indicated even in an order
affirming the views of the lower forum.
20. Having regard to the above, we are not inclined to
interfere with the order of the High Court and the appeal is
accordingly dismissed, but without any order as to costs.