06 October 2004
Supreme Court
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PRINCIPAL SECY, GOVT. OF A.P. Vs M. ADINARAYANA

Bench: K.G. BALAKRISHNAN,DR. AR. LAKSHMANAN
Case number: C.A. No.-002332-002332 / 2003
Diary number: 22645 / 2002
Advocates: D. BHARATHI REDDY Vs ABHIJIT SENGUPTA


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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.