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CASE NO.:

Appeal (civil) 2332 of 2003

PETITIONER:

Principal Secy. Govt. of A.P. & Anr.

RESPONDENT:

M. Adinarayana

DATE OF JUDGMENT: 06/10/2004

BENCH:

K.G. Balakrishnan & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

The Principal Secretary to Government, Municipal Administration and Urban

Development Department, A. P. Secretariat, Hyderabad, Andhra Pradesh and The

Director of Town and Country Planning, Hyderabad are the appellants in this appeal.

This appeal is directed against the judgment of the Division Bench of the Andhra

Pradesh High Court in Writ Petition No 14358 of 2001 confirming the judgment and

order dated 22.2.2001 of the Andhra Pradesh Administrative Tribunal at Hyderabad

allowing the Original Application No. 6755 of 2000 filed by the respondent herein and

setting aside the order issued by the appellant in G.O.Ms. No. 520 Municipal

Administration and Urban Development Department dated 28.10.2000.

The background facts leading to the filing of this appeal be noted briefly and they

are as follows:

The respondent herein at the relevant time was working as Deputy Director,

Town and Country Planning in the Municipal Administration Department at Hyderabad.

The Anti-Corruption Department Bureau registered a case on 30.9.1992 under Section

13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 with regard to

the disproportionate assets possessed by the respondent herein and investigated into

the case. The Director General, Anti-Corruption Bureau, Government of Andhra

Pradesh, submitted a report to the Government with regard to the disproportionate

assets possessed by the respondent herein and recommended to refer the case to the

Tribunal for Disciplinary Proceedings, Hyderabad for enquiry against the charged officer

into the allegations of acquisition of assets disproportionate to the known sources of his

income and also the violation of Andhra Pradesh Civil Services (Conduct) Rules, 1964

and to submit a report to the Government of Andhra Pradesh. The Tribunal after

conducting thorough inquiry and giving full opportunity to the parties submitted its report

on 2.6.1997 finding the respondent M.Adinarayana guilty under both the charges

framed against him. The Government after considering the report of the Tribunal by

Memo No. 1593/82/93-6 MA & UD dated 24.9.1997 issued a show cause notice to the

respondent herein calling for his explanation to the findings given by the Tribunal.

The respondent instead of giving his explanation to the show cause notice, filed

O.A. No. 7490 of 1997 before the Andhra Pradesh Administrative Tribunal challenging

the show cause notice. The same was dismissed by its order dated 27.4.1998. The

High Court disposed of the Writ Petition and reserved liberty to the charged officer to

raise all objections as to the jurisdiction of the Tribunal as other issues before the

Government in response to the show cause notice dated 24.9.1997. The Government

once again issued a Memo to the respondent herein to submit his explanation. The

respondent submitted his explanation initially with regard to the jurisdiction of the

Tribunal to enquire into the charge No.1 and thereafter on 31.3.1999, submitted his

reply with respect to the report of the Tribunal for disciplinary proceedings. The

Government on consideration of the entire matter and explanation given by the

respondent, issued orders in G.O.Ms.No.520-MA & UD dated 28.10.2000 removing the

respondent herein from service (Annexure \026 P/1). The respondent filed O.A. No.

6755/2000 before the A.P. Administrative Tribunal challenging the above order of the

Government. He contended that the Tribunal has no jurisdiction to enquire into

Charge-I and Charge-II which was defective in nature and, accordingly, sought to

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quash the orders of the Government. The appellant filed a detailed Counter Affidavit

before the Tribunal explaining the position. The Tribunal by its order dated 22.2. 2001

set aside the disciplinary orders of the Government. The Government thereupon filed

Writ Petition No. 14358 of 2001 before the High Court. The Division Bench of the High

Court by order dated 6.6.2002 dismissed the Writ Petition filed by the appellant herein.

Aggrieved against the said judgment, the appellants filed the above appeal.

Mrs. D. Bharathi Reddy, learned counsel appearing for the appellants,

submitted that the charged officer, the respondent herein, was removed from service by

the Government as a disciplinary measure and that the possession of assets

disproportionate to the known sources of the income by the respondent, is a

misconduct as defined under Rule 2(b) of the Conduct Rules framed under the proviso

to Article 309 of the Constitution of India and, therefore, the Tribunal for Disciplinary

Proceedings (in short `TDP') had jurisdiction to enquire into the misconduct in terms of

the TDP Act and the Rules made thereunder. She further submitted that the opinion of

the Andhra Pradesh Administrative Tribunal (in short `APAT') that the TDP had no

jurisdiction to enquire into the first charge which falls under the Prevention of Corruption

Act and which is a graver offence than the routine misconduct under the Conduct Rules

is erroneous. The learned Advocate submitted that the respondent has not taken the

objection regarding jurisdiction at the earliest opportunity and since the charged officer

generally raised such objections, the Government refers the case to the TDP on

27.7.1995 and that having failed to take objection at the earliest point of time, the

Tribunal was not justified in entertaining that plea. She also contested the correctness

of the findings of the Tribunal. With regard to the jurisdiction of the Tribunal to entertai

n

first charge framed against the charged officer in view of the amendment issued in

G.O.Ms. No. 514 General Administration (Services-C) Department dated 15.10.1994

amending sub-rule (1) of Rule 3 of the TDP Rules. It is further contended that under

the TDP Act and the Rules framed thereunder, the TDP is a fact finding authority and

that the findings recorded by the TDP could not have been opposed by the Tribunal in

as much as the Administrative Tribunal has no such power. She further submitted that

the Administrative Tribunal is not a appellate authority and, therefore, he could not have

acted as an appellate authority over the findings recorded by the TDP and accepted by

the Government.

At the time of hearing the learned counsel for the appellant, invited our attention

to Section 4 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal)

Act, 1960 ( Act No.2 of 1960) which reads thus :

"Section 4 \026 Cases to be referred to Tribunal \026 The Government may

refer to the Tribunal for enquiry and report such as may be prescribed

of allegations of misconduct on the part of the Government servants."

The above Section was amended by Act 6 of 1993.

Our attention was also drawn to Rule 3 of Andhra Pradesh Civil Services

(Disciplinary Proceedings Tribunal) Rules, 1989 [G.O.Ms. No.304, G.A.D. (Ser-C),

dated 3.6.1989. The said Rule 3 was substituted by G.O.Ms. No. 409, G.A.D., dated

20.9.1996. The said Rule read as follows :

"Rule 3. The Government may, subject to the provision of Rule 4, refer

all cases of Officers, Gazetted or otherwise involving corruption,

integrity, enquired into by Anti-Corruption Bureau including cases of

misappropriation embezzlement investigated by Anti-Corruption Bureau

or emanating otherwise and which are considered not appropriate for

prosecution in a court of law, to the Tribunal for Disciplinary

Proceedings for enquiry and report under Section 4 of the Act."

Our attention was also drawn to G.O.Ms. No. 514 General Administration

(Services-C) Department dated 15.10.1994. By the said G.O., an amendment was

brought by sub-rule (1) of Rule 3 by substituting the following Rule :

"(1) The Government may, subject to the provisions of rule 4, refer the

cases relating to the Gazetted an Non-Gazetted Officers in respect of

matters involving misconduct committed by them to the Tribunal for

enquiry and report under Section 4 of the Act."

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It is to be noticed that this Rule was in force at the time of referring the case to

the TDP.

It is pertinent to notice that Section 4 prior to its amendment by A.P. Act 6 of

1993 provided as under:

"4. Cases to be referred to Tribunal: The Government shall refer to the

Tribunal for enquiry and report such cases as may be prescribed of

allegations of misconduct on the part of government servants."

Section 4 of the Act which was in mandatory terms, was amended by A.

P.Act

6 of 1993 and the word "shall" occurring in Section 4 was replaced by the word "may"

which gave direction to the Government to refer or not to refer the matter to the

Tribunal. Section 4A which was inserted into particular Act by the same amendment Act

gave power to the Government to withdraw at any such time any case from the Tribunal

before its conclusion. The Section indicates that the copies to refer or not to refer the

case to the Tribunal for disciplinary proceedings or withdraw any case already referred

to the Tribunal became available to the Government only after the amendment of the

particular Act by Act 6 of 1993.

Mr. K.V. Satyanarayana, learned counsel appearing for the respondent, while

answering the contentions of the learned Advocate for the appellant submitted that the

contention of the learned counsel for the appellant that the charged officer did not take

objection to the jurisdiction of the TDP to entertain Charge-I at the earliest opportunity i

s

incorrect. The learned counsel contended that in view of the directions issued by the

High Court while disposing of the Writ Petition No. 8798 of 1998 on 27.4.1998 reserving

the liberty to the charged officer to take all objections including the objection as regards

jurisdiction also. And, therefore, he submitted that the contention raised by the learned

counsel for the appellant is entertainable. The learned counsel next contended that the

second charge framed against the charged officer alleges breach of Rule 9 of Conduct

Rules whereas the Rule 6 contemplated prior permission at all. The learned counsel

submitted that under sub-rule (1) of Rule 9 of the Conduct Rules what is required is

previous intimation to the Government to acquire or dispose of any immovable property

and the reporting of transaction including movable property to the Government and to

sub-rule (2) of Rule 9. Mr. Satyanarayana, therefore submitted that framing of Charge-

II is defective and, therefore, the disciplinary action taken against the respondent should

fall to the ground on that account itself. Mr. Satyanarayana further contended that

there are a number of arithmetical and clerical mistakes in the order of TDP and the

TDP had not correctly appreciated the entire matter in its proper perspective. At the

time of hearing, he pointed out that certain deductions to which respondent was entitled

to was not taken into consideration while calculating the disproportionate assets and

pointed out the discrepancies here and there from out of the orders passed by the TDP.

As it is a decision on a question of fact based evidence adduced, we are not inclined to

interfere with the orders passed by the TDP at this stage.

In the above background of facts and the contentions raised by the respective

counsel, we shall now proceed to consider the rival submissions.

Before proceeding further, we shall now reproduce both the charges framed

against the respondent herein :

"Charge No.1 : That you, Sri Adinarayana joined in Government Service

as Town Planning Assistant on 1.11.1965 in the Department of Town

Planning at Kakinada and subsequently you were promoted as Assistant

Director in the year 1978 and as Deputy Director in May 1985 and while

working as such during the check period from 1.11.1965 to 1.10.1993,

you actuated by the corrupt motive and in abuse of your official position in

order to gain pecuniary benefit for yourself acquired assets worth Rs.

10,02,674/-, through your income was Rs.10,50,024/- and expenditure

was Rs.5,25,570/- and therefore, you are found in possession of

disproportionate assets to a tune of Rs.4,78,220/- and thereby you are

guilty of misconduct within the meaning of Rule 2(b) of A.P. Civil

Services (Disciplinary Proceedings Tribunal) Rules, 1991 framed under

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the A.P. Civil Services (Disciplinary Proceedings Tribunal) (Amendment)

Act, 1993.

Charge No.II : That you have acquired the Assets i.e. house bearing

No. 12-2-717/124, Sapthagiri Colony, Hyderabad in your name worth Rs.

2,23,000/- and one Maruti Car bearing Regn. No. AHU 5355 worth

Rs.80,000/- that also you were allotted 2000 shares of 225 partly

convertible debentures in Nagarjuna Fertilizers and Chemicals Limited on

21.3.1991 and 1.2.1993 in all worth Rs.23,375/- and that you also

purchased teak wood from Sri Venkateswara Saw Mill, Sirpur worth Rs.

58,026/- without prior permission of the Competent Authority violating

Rule 9 of A.P. Civil Services (Conduct) Rules, 1964 and thereby you are

guilty of misconduct within the meaning of Rule 2(b) of A.P. Civil Services

(Disciplinary Proceedings Tribunal) Rules 1991 framed under the Andhra

Pradesh Civil Services (Disciplinary Proceedings Tribunal) Amendment

Act, 1993."

We have given our anxious consideration to the arguments advanced by the

respective counsel. In the instant case, the TDP conducted an enquiry and examined

all the relevant records, material papers and witnesses and submitted their report to the

Government. The TDP held that the charged officer is guilty of misconduct within the

meaning of Section 2(b) of Rules framed under Andhra .Pradesh Civil Services

(Disciplinary Proceedings Tribunal) Rules, 1991 from under Andhra Pradesh Civil

Services Tribunal Amendment Act, 1993 for having been in possession of assets to the

tune of Rs. 2,61,816/- disproportionate to the known sources of income. In respect of

the Charge-II, the charged officer was found guilty of misconduct as there is violation of

Rule 9 of Andhra Pradesh Civil Services Conduct Rules, 1964.

The Government after examining the report of the Tribunal and after following

the required procedure under the Rules, issued orders removing the respondent from

service by order dated 28.10.2000.

The Administrative Tribunal already noticed allowed the original application filed

by the respondent herein and set aside the orders issued by the Government removing

the respondent from service. In our opinion, the order passed by the Tribunal in original

application and the judgment rendered by the High Court dismissing the Writ Petition

filed by the appellant herein, is contrary to law and erroneous.

The possession of assets disproportionate to the known source of income is a

misconduct under the Conduct Rules as the delinquent officer was being charge-

sheeted for violation of Conduct Rules made under the provision of Article 309 of the

Constitution of India. We have already reproduced the Andhra Pradesh Civil Services

Rules, 1960 which defined misconduct under Rule 2(b). The finding of the

Administrative Tribunal that the Tribunal for disciplinary proceedings has no jurisdiction

to interfere into the charge which falls under the Prevention of Corruption Act, 1988, is

not correct.. In our view, the charge under the Prevention of Corruption Act is a graver

offence than the routine misconduct contemplated under the Andhra Pradesh Civil

Services Conduct Rules. A grave misconduct does not cease to be a misconduct

because it is grave. The Tribunal for disciplinary proceedings in our view is competent

to examine the case. The TDP have examined 57 witnesses on the prosecution side

and 13 defence witnesses and have marked 129 exhibits for the prosecution which

were examined by the Tribunal together with 81 defence exhibits. A reading of the

entire proceedings of the TDP would show that the TDP has considered the entire

material placed before it and considered them in the proper perspective.

Reference was made to Article 309 of the Constitution of India by the Counsel

for the respondent and it was contended that respondent could have been proceeded

against, only in accordance with rule framed under Article 309. Article 309 empowers

the legislature to frame rules to regulate the recruitment and conditions of service of

person appointed to public services and posts in connection with the affairs with the

Union or the State. The respondent's plea does not merit for consideration as the

Government have examined the entire report against him and entrusted the case to the

TDP in public interest in accordance with rules framed under Article 309 of the

Constitution. The Government have clearly examined the report of the TDP and

decided to impose a major penalty under Rule 9 sub-clause (IX) of the Andhra Pradesh

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Civil Service (Classification, Conduct and Appeal) Rules, 1991.

The first charge falls under the Prevention of Corruption Act. The charge is that

the respondent is possessing assets which are disproportionate to the known sources

of his income. The contention of the learned counsel for the respondent that at the

relevant time when this matter was referred to TDP and the TDP has no jurisdiction to

entertain the first charge, has no force. There is no merit in the said contention. It is

pointed out that there was an amendment to Andhra Pradesh Civil Services

(Disciplinary Proceedings Tribunal) Rules in G.O.Ms. 514 dated 15.10.1994. As per

the above amendment to sub-rule (1) of Rule 3, the Government may subject to the

provisions of Rule 4 referred to cases relating to Gazetted and the non-Gazetted

Officers in respect of all matters involving misconduct committed by them to the

Tribunal for enquiry and report under Section 4 of the Act. It is to be noticed that when

the matter was referred, this Rule alone was in force. Therefore, the TDP acquired the

right to investigate the cases that fall under Charge-I. It is not disputed that the matter

was referred to TDP on 21.7.1995 when the Rules in G.O.Ms. No. 514 dated

15.10.1994 was in force. Under these circumstances, we are of the opinion that the

contention of the learned counsel for the respondent that the TDP has no right to

entertain the first charge relating to the offence has no merits and in view of the position

stated above, the TDP was competent to entertain Charge-I.

As regard Charge-II, it was contended that the charged officer has acquired such

an assets which included both immovable and movable properties without prior

permission as required under Rule 9 of the Conduct Rules. Rule 9 runs as follows :

"Rule 9. Acquiring or disposing of movable or immovable property : (1)

No Government employee shall, except after previous intimation to

Government, acquire or dispose of, or permit any member of his family to

acquire or dispose of, any immoveable property by exchange, purchase,

sale, gift, or otherwise, either by himself or through others.

(2) A Government employee who enters into any transaction concerning

any movable property exceeding rupees twenty thousand in value,

whether by way of purchase, sale or otherwise, shall forthwith report such

transaction to Government:

Provided that any such transaction conducted otherwise than through a regular

or reputed dealer shall be with the previous sanction of Government."

Sub-rule (1) requires that before a Government employee acquires, dispose of,

or permit any member of his family to acquire or dispose of, any immoveable property

by exchange, purchase, sale, gift, or otherwise either by himself or through others, he

has to do so after previous intimation. It is contended by the learned counsel for the

respondent that the requirement of prior permission cannot be equated to statutory

requirement of previous intimation. It is true that intimation is intended to apprise the

Government whereas the prior permission is something positive on the part of the

Government without which the Government employee cannot acquire the assets. It

was also further contended that framing of the charge is materially defective because

acquisition of the property by itself does not constitute contravention of Rule 9 of the

said Rules.

We have read this charge in the light of allegations in support thereof. In the

instant case, it is not disputed that the respondent has neither supplied any prior

information on the Government nor did he send any prior intimation to the Government.

By not doing this, he has contravened the provisions of Rule 9. The Tribunal has also

categorically held that the respondent has not applied for prior information before he

purchased the items from the competent authority nor he intimated to the competent

authority forthwith soon after the purchase of the several items. Therefore, in our view,

the charged officer has violated the Rule 9 of the Conduct Rules and thus is guilty of

misconduct within Rule 2H of the Andhra Pradesh Disciplinary Amendment Act, 1993.

In view of the above-said finding we hold that respondent is guilty of both the charges

framed against him within the Rule 2(b) of the Conduct Rules of 1991 framed under

amendment Act, 1993.

The order of the Administrative Tribunal interfering with the well-considered

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order of the TDP is unwarranted. The APAT cannot sit as a court of appeal over a

decision based on the finding of the enquiry authority in disciplinary proceedings.

Where there is some relevant material which the disciplinary authority has accepted

and which material reasonably supported the conclusion reached by the disciplinary

authority, it is not the function of the APAT to review the same and reach a different

conclusion. So, it is well settled that if the findings recorded by the Tribunals or of t

he

disciplinary authorities, are found to be perverse, which are not based on the legal

evidence, then the administrative tribunal or the court is empowered to treat such flaw

as a legal flaw and quash the impugned action. In the instant case, the fact finding

authority has based its findings on legally permissible substantive evidence. And,

therefore, such a finding on fact based on substantive evidence is not permissible to be

interfered with.

In our opinion, the Administrative Tribunal cannot ignore the findings of the

disciplinary authority or the tribunals. The truth or otherwise of the charge, is a matter

of the disciplinary authority to go into. The finding of the court or tribunal under judici

al

review which, in our opinion, cannot extend to the re-examination of all evidence to

decide the correctness of the charge. In our view, the Administrative Tribunal cannot sit

as a court of appeal over a decision based on finding of the enquiry authority in

disciplinary proceedings. This court, time and again, categorically stated that court

should not interfere with the quantum of punishment where there is some relevant

material which the disciplinary authority has accepted and which material has

reasonable supports, the conclusion reached by the Disciplinary Tribunal, it is not the

function of the Administrative Tribunal to review the same and reach a different finding

than that of the disciplinary authority.

In our opinion, judicial review cannot extend to the examination of the

correctness of the charges as it is not an appeal but only a review of the manner in

which the decision was made. We have, therefore, no hesitation in setting aside the

order of the Andhra Pradesh Administrative Tribunal and the judgment of the Division

Bench of the High Court for reasons stated (supra). The order passed by the

Government removing the respondent from service is in order and, therefore, the

appeal filed by the appellant State stand allowed. Further, there will be no order as to

costs.