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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: K.A.  KITTU AND OTHERS

DATE OF JUDGMENT:       10/11/2000

BENCH: S.N.Phukan, V.N.Khare

JUDGMENT:

PHUKAN, J.

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     In  this  appeal by special leave, Union of India  has assailed   the  judgment  of   the  Central   Administrative Tribunal,  Ernakulam  Bench passed in  Original  Application No.956 of 1994.

     Briefly stated the facts are as follows.

     The  respondent  was  holding  the  post  of  Cardamom Settlement Officer, Devicolam, Kerala during the period from 7.12.1982  to 14.7.1985.  While working in that capacity  he gave  sanction to three persons for felling of trees for the purpose of letting in sufficient sun light in their cardamom plantation   subject   to   certain   conditions   including permissions  to  be  obtained from  the  Forest  Department. There  is  no  dispute  that during  the  period  while  the respondent  was  serving in the said capacity no felling  of trees took place.  After the transfer of the respondent from that  post, due to felling of trees there was public out cry and  an  inquiry  was conducted;  respondent was  put  under suspension  and thereafter departmental proceeding was drawn up  against  him on four charges.  The Inquiry Officer  held that  charges  No.1 and 2 were partially proved and  charges No.3  and 4 were fully proved.  The report was accepted  and as  during the period of inquiry the respondent retired from service  the  penalty  of reduction of 50%  of  pension  was imposed.  The application filed by the respondent before the Central  Administrative Tribunal was allowed by the impugned judgment and hence the present appeal.

     We  quote  below the four charges and the findings  of the  Inquiry  Officer:  1.  That you, Sri K.A.  Kittu,  IAS, while  holding  charge  of the post of  Cardamom  Settlement Officer,  Devicolam,  (1) by proceeding  No.A2-588/84  dated 10-10-1984  issued  sanction  for felling of  660  trees  in 26-5-hs.   Of  Cardamom Estate at Kurisupara  in  Pallivasal Unreserve, in Sl.  Nos.  1393 & 234 of Palliasal village, to Sri  Thomas  Sebastian,  Karipparambil,   Kottayam  for  the ostensible  purpose  of  shade regulation  in  the  Cardamom Plantation,  treating  the  said Thomas  Sebastian  and  two others  for whom he held power of attorney, as lessees  of the  land  after  conferring on them the  status  of  lease

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offerees  in  a  contrived  manner in  collusion  with  the Special  Deputy  Tehsildar, Cardamom  Settlement,  Devicolam (Sri K.  Ramakrishnan), acted without jurisdiction and in an extraordinary  way,  altogether  by  passing  the  Assistant Settlement  Officer,  Kumily, who is the  primary  statutory authority   for  lease  of   Government  land  for  Cardamom cultivation  including  grant of permission for  felling  of trees  under  rules  7  to  9 of  the  Rules  for  lease  of Government lands for Cardamom Cultivation, 1961.

     2.   by letter No.A2-588/84 dated 25-9-1984  addressed to  the said Sri Thomas Sebastian demanded Cardamom dues, as defaulters,  fixing the amount of arrears as Rs.69,154/- for the  period  from 1954 to 1984, got it remitted, thereby  to bring  him  and  the two others he represented,  within  the definition of lessee under rule 2(e) of the Cardamom Lease Rules  and for permitting felling of trees, though no demand had been raised or communicated to the parties previously in Form  VI,  leave  alone issue of formal lease  in  Form  VII prescribed  under the Cardamom Lease Rules by the  statutory authority,  viz.  the Assistant Settlement Officer, and this was  done  when  the  stay order  issued  by  Government  in communication  No.12252/E3/80/RD  dated   7-3-1980   against regularisation  of encroachments on Government Lands was  in force.

     3.   handled  your  office   file  No.A2-588/84  right through  at your personal level and issued proceedings dated 10-10-1984,  12-12-1984, 15-2-1985, 19-2-1985 and  27-2-1985 regarding  felling  of  trees etc.   prescribing  conditions which  would appear to safeguard the interest of Government, but  actually  intended  to extend to the  said  Sri  Thomas Sebastian undue benefits/wrongful gain by permitting felling of 660 trees, mostly superior species, first identifying the trees  and  then  marking  them on  the  ground  for  making available to him trees of high value and fixing the value of timber  at  Rs.31,06,800/-, the lowest rates of  the  Forest Department  viz.   the  seigniorage  rates as  well  as  the minimum  rates  prescribed under the Kerala  Forest  Produce (Price  Fixation)  Act and also in violation  of  Government orders   in  G.O.(P)  185/65/RD   dated  12-3-65   regarding valuation  of trees, the under-valuation being to the extent of  about  Rs.82 lakhs, excluding the value of an  estimated quantity  of  5000  tones  of fire-wood  that  would  become available  on account of felling of trees, the value thereof being  Rs.3.5 lakhs even at the seigniorage rate of  Rs.70/- per tone.

     4.  permitted Sri Thomas Sebastian to start felling of trees  after realising Rs.3 lakhs as advance and a  Security Deposit  of  Rs.50,000/-  whereas according  to  the  Forest Department  procedure, felling will be permitted only  after remittance of 1/3rd of the estimated value.

     Findings of the Inquiry Officer:

     My  finding  with regard to charges (1) and  (2)  are while  we  cannot  blame him for collection of  premium  and pattom and for treating Shri Thomas Sebastian and two others as  would be lessees and cannot also blame him for the  so called contrivance of a status of lease offeree because of the  rulings  of the various High Court  Judgements  quoted, nevertheless  his  action in giving the sanction  for  shade regulation  when  he  did  not have  the  power,  cannot  be

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regarded  as  regular and correct.  On the contrary,  it  is without  jurisdiction.   It  is motivated  and  actuated  by ulterior  motives.  To that extent, the charges are  proved. (emphasis supplied)

     My  findings  are that the Member of Service  has  not safeguarded   the  interest  of   the  Government  and   the conditions  stipulated  and method adopted are all  for  the benefits of Shri Thomas Sebastian and two others;  and there has  been  gross  under-valuation which  would  have  caused substantial  and  wrongful loss to the Government.   He  has also  failed to apply the rules concerning remittances.   In these  circumstance,  the  charged  (3) and  (4)  are  fully proved. (emphasis supplied)

     As  already  stated above, the felling of  trees  took place  after the respondent was transferred from the post of Cardamom  Settlement  Officer  on 14th July,  1985.   It  is interesting  to  note that the State Government  stayed  the order  of  felling of trees on 11th September, 1985 but  for reasons  best known the stay order was vacated.  During  the pendency  of this appeal, the delinquent officer died and as stated  by  learned  counsel  for  the  respondent  all  the entitlements  of  delinquent officer have been paid  to  his legal representatives.

     We  have heard Mr.  Mukul Rohtagi, learned  Additional Solicitor  General for the appellant and Mr.  K.  Sukumaran, learned senior counsel for the respondent.

     On  behalf of the appellant it has been urged that the Tribunal  acted as an Appellate Court which is erroneous  in as  much  as  in  exercising power of  judicial  review  the Tribunal  could  not  have re-appreciated  the  evidence  on record.   It has also been urged that it is not a case of no evidence  and  therefore  the  Tribunal ought  not  to  have interfered with the finding of the Inquiry Officer.

     In reply the learned senior counsel for the respondent has urged that the Tribunal in the impugned judgment clearly noticed  by  referring  to the decisions of this  Court  the power  of judicial review by the Tribunal.  It has also been contended that Tribunal rightly held that the inquiry report was  bad in law, in as much as evidence of all the witnesses examined by the delinquent officer was not at all considered by the Tribunal.

     On  perusal of the judgment we find that Tribunal also held  that  Inquiry  Officer was biased and also  there  was violation of principle of natural justice.

     The  Tribunal  before proceeding to examine report  of the  Inquiry  Officer  rightly took note of  the  fact  that Tribunal  cannot review the report of the Inquiry Officer if there  are relevant materials on record and the findings  of the  Inquiry  Officer are based on such material facts.   We further  find  from the impugned judgment that the  Tribunal mainly  considered the contradictory findings of the Inquiry Officer.   Therefore,  the submission of the learned  senior counsel for the appellant has no force.

     Regarding  charges No.1 and 2 the Inquiry Officer held that  respondent  could  not  be blamed  for  collection  of premium and pattom and for treating Thomas Sebastian and two others as would be lessee but found fault in the action of

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the  delinquent  officer  in giving sanction as  he  had  no jurisdiction.  It was further held that it was motivated and actuated of ulterior motives.  According to the Tribunal the above  finding regarding motive was based on no evidence and in  this  connection  the   Tribunal  quoted  the  following observation  of  the Inquiry Officer namely  Unfortunately, there  are  no  evidences  to show that his  action  can  be directly  relatable to any material gains.  We have perused the  report of the Inquiry Officer and we find that Tribunal is  right in holding that above finding regarding motive  is based on no evidence.

     Referring  to the finding of the Inquiry Officer  that the action of the respondent in entertaining the application and  taking  action for the purpose of issuing  sanction  is irregular  ab  initio,  the Tribunal held that  the  Inquiry Officer  did not record any finding that the sanction  order was  illegal.   In another place the Inquiry  Officer  found that  action of the respondent could not be regarded that it was  in  public interest and was motivated  and  suspicious. Referring  to this finding the Tribunal held that there  was no  evidence  at  all regarding  suspicion  and,  therefore, rejected  this  finding  and in our opinion it  was  rightly done.   We may add here that in the subsequent paragraph  of the  judgment,  the  Tribunal also  pointed  that  regarding jurisdiction for granting sanction there is no clear finding that it was illegal and motivated.

     Second  finding of the Inquiry Officer that respondent did  not safeguard the interest of the government in as much as  conditions  stipulated and methods adopted were for  the benefits  of  Shri Thomas Sebastian and two others and  that there  was  under  valuation of the trees which  would  have caused substantial wrongful loss to the government, is based mainly on the ground that the respondent ought to have taken the  opinion of an expert.  In this regard the Tribunal  has rightly pointed out the contradictory finding in the Inquiry Report.   At  one place it was observed that being a  layman without  any  background in cardamom cultivation  respondent ought  to  have relied upon some expert in the field but  at another  place  in report the Inquiry Officer recorded  that respondent had been associated with his work for a long time and naturally he would have known the background and history of  cardamom  plantation.  This finding of the  Tribunal  is absolutely correct.  We may add here that as stated above no felling of trees took place while the respondent was holding the post and the sanction order was also stayed by the State Government.   Therefore, there was no actual loss of revenue due to the action of the respondent.

     The  Tribunal also found fault with the report of  the Inquiry  Officer  as  except  evidence of  one  witness  the evidence  of other two witness of the respondent was not  at all considered by the Inquiry Officer.

     For the reasons stated above the appeal is without any merit  and  accordingly  it  is  dismissed.   Costs  on  the parties.