* THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.10387 of 2022

% 22.11.2023

# 1) State of Andhra Pradesh,

represented by its Secretary to Government,

Environment, Forests, Science & Technology

Department, Secretariat Buildings,

Velagapudi, Guntur.

2) The Principal Chief Conservator of Forests,

& Head of Forest Force, Andhra Pradesh,

Guntur. …. Petitioners

Versus

$ Sri Parvathaneni Sivaji, S/o Late P.Narasimha Rao,

Aged 67 years, Retired Divisional Forest Officer,

R/o Plot No.90, Eshwar Villas, Nizampet,

Qutbullapur Mandal, Ranga Reddy District. …. Respondent

! Counsel for the Petitioners : Sri G.V.S. Kishore Kumar, Learned

Government Pleader for Services-I,

GP [S]-I

! Counsel for the Respondent : Sri Chetluri Srinivas

< Gist:

> Head Note:

? Cases referred: 1) (2009) 2 SCC 570

2) (2005) 6 SCC 636

3) (2006) 5 SCC 88

4) (2018) (14) SCC 92

1

Nil

2

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.10387 of 2022

# 1) State of Andhra Pradesh,

represented by its Secretary to Government,

Environment, Forests, Science & Technology

Department, Secretariat Buildings,

Velagapudi, Guntur.

2) The Principal Chief Conservator of Forests,

& Head of Forest Force, Andhra Pradesh,

Guntur. …. Petitioners

Versus

$ Sri Parvathaneni Sivaji, S/o Late P.Narasimha Rao,

Aged 67 years, Retired Divisional Forest Officer,

R/o Plot No.90, Eshwar Villas, Nizampet,

Qutbullapur Mandal, Ranga Reddy District. …. Respondent

DATE OF ORDER PRONOUNCED: 22.11.2023

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

1. Whether Reporters of Local Newspapers may

be allowed to see the Order? Yes/No

2. Whether the copies of Order may be marked

to Law Reporters/Journals? Yes/No

3. Whether Your Lordships wish to see the fair

copy of the Order ? Yes/No

_____________

G. NARENDAR, J

________________

NYAPATHY VIJAY, J

3

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.10387 of 2022

ORDER: (Per Hon’ble Sri Justice Nyapathy Vijay)

The present Writ Petition is filed questioning the Judgment in

O.A.No.7068 of 2013 dated 01.08.2017, which was allowed.

2. The brief facts of the case leading to the present Writ Petition are

as follows and the parties are described as in the Tribunal:-

The applicant was appointed as Forest Range Officer and

subsequently promoted as Assistant Conservator of Forests. During the

period 1.7.1993 to 14.3.1996, the applicant had worked as Divisional

Forest Officer, Social Forestry, Kurnool.

3. On 29.11.1999, the applicant was issued Charge Memorandum

under A.P.C.C.S (CCA) Rules, 1991 framing certain charges to the effect

(i) Applicant did not submit records/information in connection with Circle

Officer inspection by Chief Conservator of Forests (JFM) despite clear

instructions; ii) Applicant allowed F.R.Os under his control to purchase

Polythene Bags, Seedlings Barbed Wire, PVC Pipes, Cement and Stone

Monolithic without submitting estimates; iii) Applicant failed to submit

fortnightly diaries and log book extracts as prescribed under A.P. Forest

4

Department Code; iv) Applicant failed to submit information about District

schemes, Accounts and Vouchers in respect of centrally sponsored

schemes to conservation of forests.

4. On 07.07.2000, the Conservator of Forests was appointed as

Enquiry Officer. About three (3) months thereafter, the Enquiry Officer

was changed and Conservator of Forests, Wildlife Management was

appointed as Enquiry Officer on 27.10.2000 and about two years

thereafter, the Enquiry Officer was again changed and Conservator of

Forests, Kurnool was appointed on 31.8.2002 as Enquiry Officer.

The Enquiry Officer submitted his enquiry report on 21.6.2003 holding

that Charge No.I as proved, Charge No.II as partly proved, Charge No.III

as not proved and Charge No.IV was recommended to be dropped. About

one year thereafter, show-cause notice was issued on 07.07.2004 calling

for explanation from the applicant on the findings in the enquiry report.

The applicant submitted his explanation thereto within five days i.e., on

12.7.2004 and the applicant retired from service on 31.07.2004.

The applicant is being paid provisional pension @ 75% of basic.

5. An year thereafter, Memo dated 24.8.2005 was issued calling for

explanation from the applicant proposing punishment of withholding

pension in full, besides recovery of Rs.3,31,182/- under Rule 9 of A.P.

Revised Pension Rules, 1980. This Memo dated 24.8.2005 was served on

5

04.02.2009 through the Divisional Forest Officer, Warangal vide

Proceedings No.2097/2002/S2, dated 30.01.2009. Notwithstanding the

explanation of the applicant, impugned G.O.Ms.No.75, dated 29.8.2013

was issued by Respondent No.1 withholding pension permanently,

besides recovery of Rs.3,31,182/-. Hence, the O.A.No.7068 of 2013 was

filed questioning the impugned proceedings.

6. In the O.A, the applicant apart from raising pleas on merits also

pleaded that he suffered paralysis in 2008 due to brain hemorrhage and

subsequently underwent by-pass surgery at Usha Mullapudi, Cardiac

Centre, Hyderabad. The applicant had pleaded that the provisional

pension @ 75% of basic was just not sufficient to meet the day-to-day

expenditure for medication.

7. The Tribunal on 01.08.2017 passed a detailed order declaring the

impugned G.O.Ms.No.75, dated 24.8.2013 as illegal and arbitrary and

that the applicant is entitled to all consequential benefits of fixation of

pension and arrears of pension.

8. Almost after a lapse of 5 years, the present Writ Petition was filed

on 28.3.2022 questioning the orders of the Tribunal and the short excuse

for delay that was given that due to non-tracing of the original records

there was delay in filing Writ Petition.

6

9. The point that arises for consideration in this Writ Petition is

whether the order of Tribunal is sustainable?

10. On Merits of the charges:- Firstly, coming to the merits of the

enquiry, the Tribunal at Paras 14 and 16 of its order, after going through

the enquiry report, opined that though the Annexure-II to Charge Memo

cited 15 relied upon documents to establish the Charges against the

applicant, the Annexure-III to the Charge-Memo cited “Nil” witnesses. In

the enquiry report, there was no mention of any witness being examined

and in that view, the Tribunal was of the opinion that the Enquiry Officer

could not have donned the role of a witness and hold that the Charge

No.I and sub-charges (v) & (iii) of Charge No.II against the applicant

were established on his own understanding of the relied upon

documents. In this Writ Petition, no plea was urged on this aspect.

11. The Charge No.I is with reference to non-submission of certain

records like Plantation Register, Soil Suitability Certificate, Treatment

Maps and other documents pursuant to inspection on 22.12.1995 and

9.1.1996 and the Conservator of Forests, SF, Kadapa could not monitor

the works and that the applicant was negligent in discharge of duties.

The enquiry report, impugned penalty pleadings of the Government

before this Court as well as before the Tribunal do not speak of any

7

financial loss to the Government with reference to this Charge No.I.

Therefore, this Charge No.I even if it is held to be established is of no

consequence vis-à-vis a retired employee as there is no financial loss to

the Government and no punishment of withholding pension in entirety

and recovery of Rs.3,31,182/- could be imposed on this charge.

12. The Charge No.I does not speak of any intentional act of

non-submission of the records by the applicant for any ulterior motive

and further the Conservator of Forests, SF, Kadapa who allegedly could

not monitor and review the works in SF Division, Kurnool due to

non-submission of records was not named or cited as a witness.

The Charge No.I does not take into consideration the annual audit and

revision of works undertaken by the Department from time to time.

Further, the other way of looking at the Charge No.I is the laxity of the

Conservator of Forests, SF, Kadapa in monitoring the works by physically

going to the office of applicant and verifying the records is sought to be

overcome by blaming the applicant.

13. Coming to Charge No.II (ii and iv), the Tribunal referred to paras

12 and 13 of the Counter Affidavit filed therein and opined that the

Charge was not established. Paras 12 and 3 of the Counter Affidavit are

to the effect that the barbed wire pertaining to Charge II(ii) was

purchased as per the instructions of District Collector, Kurnool and Chief

8

Executive Officer, Zilla Parishad, Kurnool. One of the items was

purchased in the month of April, 1994 and other item was purchased in

the month of August, 1994 and the deviation of rates was due to

enhancement of rates and estimates. As regards Charge No.II(iv), it is

submitted that the Forest Range Officers SF, Kurnool had prepared the

voucher duly quoting the MB No.202 Batch No.7 and rated as Rs.39.10

per each stone. The said individual had paid the money and the Divisional

Forest Officer i.e., the applicant had only scrutinized the bill and

authorized the payment and no extra amounts were allowed. Further, it

was also admitted that tenders could not be called for, for paucity of time

due to then impending VIP visits as requested by CEO for immediate

implementation of work. In effect, the Charge as said to be proved in the

enquiry report was virtually nullified by the Counter Affidavit.

14. Apart from the merits of Charge Nos.I and II, the Enquiry Officer

had missed out on adhering the fundamental principles of conducting

enquiry. Therefore, Charge No.II (ii and iv) cannot be sustained.

The Charge Nos.I and II are regarding negligence/insubordination and

such Charges require documents to be supported by oral witnesses and

these are not inferable charges. In the absence of any witness, the

enquiry report is unsustainable.

9

15. The Hon’ble Supreme Court in Roop Singh Negi v. Punjab

National Bank and others

1

, while considering a case where the

department did not cite any witness in support of the allegations opined

at para 14 there under:-

“14. Indisputably, a departmental proceeding is a quasi judicial

proceeding. The Enquiry Officer performs a quasi judicial function. The

charges leveled against the delinquent officer must be found to have

been proved. The enquiry officer has a duty to arrive at a finding upon

taking into consideration the materials brought on record by the parties.

The purported evidence collected during investigation by the

Investigating Officer against all the accused by itself could not be

treated to be evidence in the disciplinary proceeding. No witness was

examined to prove the said documents. The management witnesses

merely tendered the documents and did not prove the contents thereof.

Reliance, inter alia, was placed by the Enquiry Officer on the FIR which

could not have been treated as evidence.”

16. Therefore, the findings on Charge Nos.I and II (ii and iv) are

patently perverse as there is no material to establish the same. The view

taken by the Tribunal on this aspect is sustained.

17. Pension and Proportionality: The pension as is well known is

an insurance for employees in the last quarter of their life and to

withhold the pension, a finding beyond mere preponderance of

probabilities is an absolute requirement. A mere fancy of the enquiry

officer and the disciplinary authority on the usual concept of probability is

1

(2009) 2 SCC 570

10

not sufficient. A distinction has to be borne in mind while imposing

punishment on retired employees wrt withholding pension as the

fundamental right to independent life with dignity and access to quality

medical care are at stake and those rights cannot be wished away

mechanically.

18. Delay in initiation, conclusion and litigation: On the aspect

of abnormal delays in initiation, conclusion and litigation needs to be

emphasized. The allegations herein pertain to the order 1994-95, the

Charge memorandum was issued on 29.11.1999 about three enquiry

Officers were appointed spanning over a period of four years, the

enquiry, even in the absence of any witnesses took about four years for

submission of enquiry report. The first show cause notice calling for the

explanation of the applicant on the enquiry report was for the year 2004,

final show cause notice of the year 2005 served on the applicant in 2009

as mentioned supra and the punishment was imposed in the year 2013

and the Tribunal order is of the year 2017, challenged before this Court

by way of this writ petition in 2022.

19. The facts in the above para disclose chronic delays at every stage

of enquiry and the proceedings were pending with the authorities for nine

(9) years after the retirement of the applicant. The mental agony and

suffering of an employee, who is retired due to protracted disciplinary

proceedings, is much more than the eventual punishment.

11

20. The denial of full pension on trivial charges is unfathomable.

The Hon’ble Supreme Court in P.V.Mahadevan v. MD.T.N.Housing

Board

2

at para 11 opined that the chronic delays need to be given

quietus in the interest of department as well as delinquent.

Para 11: …..Keeping a higher government official under charges of corruption and

disputed integrity would cause unbearable mental agony and distress to the officer

concerned. The protracted disciplinary enquiry against a government employee

should, therefore, be avoided not only in the interests of the government employee but

in public interest and also in the interests of inspiring confidence in the minds of the

government employees. At this stage, it is necessary to draw the curtain and to put an

end to the enquiry. The appellant had already suffered enough and more on account of

the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of

the appellant due to the protracted disciplinary proceedings would be much more

than the punishment. For the mistakes committed by the department in the procedure

for initiating the disciplinary proceedings, the appellant should not be made to suffer.

Similar view was also taken in M.V.Bijlani v. Union of India and

others

3

and in UCO Bank vs. Rajendra Shankar Shukla

4

21. Though, the aspect of delay in the disciplinary proceedings is to be

decided on a case to case basis, the chronic delay at every stage in the

present case makes the entire disciplinary proceedings liable to be set

aside, more so, in a disciplinary enquiry where there are no witnesses

and no complicated facts warranting extended time to conduct the

enquiry. The enquiry proceedings against this applicant is liable to be

quashed on this aspect of delay also.

2

(2005) 6 SCC 636

3

(2006) 5 SCC 88

4

(2018) (14) SCC 92

12

22. The delay in filing the WP: The Tribunal had passed an order

on 01.08.2017 expressing strong opinion in the initiation and conclusion

of the enquiry and in spite of the same, the present writ petition was filed

in March, 2022 after a lapse of nearly five years. The only explanation

given in the writ petition was that the original files were misplaced. This

lethargic and indolent approach especially in cases where there is a

chronic delay at every stage of the proceedings warrants imposition

of costs.

23. For the foregoing reasons, there are absolutely no merits in the

case and the Writ Petition is dismissed with costs of Rs.1,00,000/-.

The petitioners are directed to pay the entire pensionary benefits, costs

and all other dues to the applicant/Respondent with interest as applicable

within a period of two (2) months from today and report compliance to

the registry. As a sequel, pending applications, if any, shall stand closed.

24. Litigation policy: The facts narrated above, disclose a dire need

of litigation policy for the State and such a policy would help the Law

Officers and the authorities concerned as to what kind of cases need to

be challenged in higher judicial fora. Considering the reality of cost and

delays in the Courts, the Union of India has developed a National

litigation policy with a single platform for monitoring litigation i.e Legal

Information Management & Briefing System (LIMBS).Some of the States

have also developed their own litigation policies and this is imperative.

13

25. For ready reference, Clause 6.8 of the Punjab Dispute Resolution

and Litigation Policy, 2020 issued by the Department of Home Affairs and

Justice published in Gazette on 25.6.2020 specifically deals with Appeals

in service matters and refrains from filing any Appeals from decisions

with regard to pension and retirement benefits unless it does not set any

precedent nor it involves any principle. The Litigation policy is

comprehensive and the Appellant State may examine the policy and such

other policies of other States and also of the Union of India and evolve its

own policy at the earliest, both in the interest of the State, this institution

and the citizenry.

_____________

G. NARENDAR, J

________________

NYAPATHY VIJAY, J

Date: 22.11.2023

IS

14

THE HON’BLE SRI JUSTICE G. NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

WRIT PETITION No.10387 of 2022

Date: 22.11.2023

IS