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Judgment
L. Narasimha Reddy, J.—The husband of the petitioner herein, by name, Sri N. Srinivasan (for short ''the employee''), was appointed as Forest Officer in 1966. He was promoted as Deputy Range Officer in 1992. The Forest Range Officer, Venkatapuram Range, Khammam District, gave a complaint against the employee to the Divisional Forest Officer, Bhadrachalam, on 31.01.1998, alleging that the employee committed certain irregularities, in execution of the works sponsored by the World Bank. He was issued a charge memo, dated 15.08.1998, wherein two articles of charges were framed. Thereafter, the employee was placed under suspension through order, dated 20.12.1998. The employee submitted explanation on 21.10.1998, denying the charges. He raised a plea that the relevant documents, which were relied upon by the disciplinary authority, are not supplied to him. Not satisfied with that explanation, the disciplinary authority appointed the Divisional Forest Officer, Bhadrachalam, North Division, as an Enquiry Officer. The employee is said to have raised certain objections in the enquiry, stating that the Enquiry Officer himself was a complainant against him. A report was submitted on 21.10.1999 by the Enquiry Officer, holding that the charges framed against the employee are proved. Taking the same into account, the Conservator of Forests, the 2nd respondent herein, passed an order, dated 31.01.2000, dismissing the employee from service.
The employee filed an appeal before the 1st respondent. The appeal was rejected on 05.08.2000. Thereupon, he filed O.A. No. 2720 of 2001 before the A.F. Administrative Tribunal, Hyderabad (for short ''the Tribunal''), challenging the order of dismissal, as confirmed by the 1st respondent. The O.A. was dismissed on 14.06.2002. Thereafter, he filed W.P. No. 1573 of 2003 before this Court. The Writ Petition was allowed, to the extent of setting aside the orders passed by the Tribunal and that of the appellate authority. A direction was issued to the 1st respondent to pass fresh orders in the appeal, after issuing notice to the employee. Thereafter, the 1st respondent passed an order, dated 17.06.2005, rejecting the appeal. The employee died on 19.02.2006. Therefore, the petitioner filed OA. No. 6782 of 2009 before the Tribunal, challenging the order of dismissal of her husband, dated 31.01.2000, as confirmed by the 1st respondent on 17.06.2005. The O.A. was opposed by the respondents. The Tribunal dismissed the O.A. through order, dated 16.08.2012. Hence, this Writ Petition.
The learned counsel for the petitioner submits that serious irregularities have been crept into the disciplinary proceedings. It is also submitted that the Divisional Forest Officer, Bhadrachalam, is said to have conducted preliminary enquiry against the employee, pointed out the alleged irregularities, and submitted a complaint to the police. He submits that despite this, the same officer acted as an Enquiry Officer, and he was totally prejudiced in the matter. He submits that though this aspect was pointed out at every stage, the same was not taken into account. The learned counsel contends that before the appellate authority, a specific point was raised in this behalf, and he too ignored it. According to him, the Tribunal treated the Enquiry Officer, only as a witness in C.C. No. 412 of 1999 on the file of the Sub Divisional Magistrate, Bhadrachalam, whereas his participation from the beginning and anterior to the initiation of the disciplinary proceedings is clear from his evidence in the criminal case. The learned counsel contends that the Tribunal did not apply the correct parameters and has dismissed the O.A.
The learned Government Pleader for Services-I, appearing for the respondents, submits that in case the Enquiry Officer incurred to any disqualification, the employee ought to have raised an objection, and having permitted the proceedings to go on, the contention in that behalf cannot be raised, at a later stage. He submits that a complaint against the employee was submitted by the Divisional Forest Officer, after conclusion of the enquiry proceedings and, therefore, no illegality can be said to have crept into the proceedings. He submits that the 1st respondent dealt with the matter in detail and the Tribunal has also taken the correct view.
The wife of the deceased employee is pursuing the proceedings. A charge memo was issued to the employee on 15.08.1998. On receipt of the same, he submitted an explanation on 21.10.1998. The Divisional Forest Officer, Bhadrachalam, was appointed as the Enquiry Officer and he submitted a report on 21.10.1999, holding that the charges framed against the employee were proved. Punishment of dismissal of the employee from service was imposed through order, dated 31.01.2000. The appellate authority dismissed the appeal through a cryptic order. O.A. No. 2720 of 2001 filed by the employee was dismissed on 14.06.2002. In W.P. No. 1573 of 2003, this Court is of the view that the appellate authority did not follow the prescribed procedure and, accordingly, requested him to pass a reasoned order. The appellate authority passed a detailed order on 17.06.2005, dismissing the appeal. The employee died on 19.02.2006. His wife filed O.A. No. 6782 of 2009, by raising several grounds and the same was dismissed on 16.08.2012.
The principal contention advanced before this Court is that since the Enquiry Officer himself submitted a complaint against the employee, he ought not to have been appointed as the Enquiry Officer. In the first round of litigation, the limited relief granted by this Court was that the appellate authority shall examine the matter in detail and pass a reasoned order. In the second round of litigation, the Tribunal did not advert to that contention. We have perused the entire record and examined the contentions advanced by the parties in detail.
In the disciplinary proceedings, the disciplinary authority is competent to conduct the enquiry. The Rules also permit the appointment of Enquiry Officer. An Enquiry Officer is mostly, an official from the same Department and is superior in rank to the delinquent employee. He must not be associated with the enquiry in any manner. It is only then, that impartial assessment of the matter can be expected from him. The plea of the petitioner that the Divisional Forest Officer, Bhadrachalam, was the complainant against her husband i.e., the employee and, therefore, he ought not to have been appointed as the Enquiry Officer, is opposed by stating that there is nothing on record to suggest that the Enquiry Officer has taken any steps, till he was appointed as such and submitted his report and the Tribunal also took the view that if the Enquiry Officer has submitted a complaint, after submission of the enquiry report, the proceedings cannot be said to have been vitiated.
In the first round of litigation itself, i.e., in O.A. No. 2720 of 2001, the employee made a specific grievance, soon after the Enquiry Officer was appointed. He submitted a representation to the 2nd respondent herein for change of the Enquiry Officer. The reasons stated by him are that the Divisional Forest Officer, Bhadrachalam, is the person, who was instrumental in initiation of the disciplinary proceedings. This is evident from the following text of the order in O.A. No. 2720 of 2001.
The case of the applicant is that he was initially appointed as Forest Officer in the year 1966 and later promoted as Deputy Range Officer in the year 1992. While the applicant was working as Deputy Range Officer, Arunachalapuram Sector of Venkatapuram Range, the 1st respondent issued a notice to the applicant as to why disciplinary proceedings should not be initiated against him for certain allegations and the applicant submitted his explanation on 03.10.1998. The 1st respondent appointed the 3rd respondent as Enquiry Officer vide proceedings dated 27.11.1998. When the applicant came to know about the same, he made a representation on 31.12.1998 to the 1st respondent to change the enquiry officer, as the same officer made allegations against the applicant and sent a proposal to the 1st respondent to initiate disciplinary proceedings, and as such, there is no possibility of his taking a different view during the enquiry. But the said request of the applicant was not considered by the 1st respondent. Later, the 3rd respondent, who is the Enquiry Officer, issued a charge memo on 5.1.99, calling for the explanation of the applicant as per Rule 20(4) and (5) of the A.P.C.S. (CC&A) Rules, 1991, the
disciplinary authority is alone competent to frame charges against the delinquent officer and after calling for the explanation from the delinquent officer, if the authority is not satisfied with the explanation submitted by the delinquent officer, then shall appoint an enquiry officer. But in the present case, the disciplinary authority without framing such charges and calling for the explanation of the applicant, straight away appointed the 3rd respondent as enquiry officer and the enquiry-officer issued the impugned order, dated 5.1.99, though he is not competent to do so as such, the impugned order dated 5.1.99 is arbitrary, illegal and ultra vires to Rule 20(4) of CCA Rules, the applicant contends.
From the above, it is clear that the role played by the Enquiry Officer, before he came to be appointed, as such was clearly mentioned.
The Tribunal concentrated mostly on the aspect of framing of charges by the Enquiry Officer, but not about his being instrumental in initiation of the disciplinary proceedings and, ultimately, dismissed the O.A.
Since the employee is no more and the proceedings are being prosecuted by his wife, the letter, if any, submitted by him with regard to the change of the Enquiry Officer, is not available. However, the petitioner was able to procure a copy of the deposition of the Enquiry Officer, in his capacity as P.W.1, in C.C. No. 412 of 1999. A perusal of the same discloses that he was the person, who first inspected the records pertaining to the works executed by the employee, submitted a complaint, and thereafter, initiated the prosecution. The relevant portion of his deposition in chief reads:
I know the accused. I worked as a Divisional Forest Officer, Bhadrachalam (North) from 21.10.1996 to 30.3.1999. Presently, I am working as D.F.O. Warangal North The accused worked as a D.R.O., Arunachalapuram Section from 16.3.1995 to 24.2.1998. Vana samrakshana works along with other works entrusted to the accused. He has to take advances from the concerned Range Officer i.e., Venkatapuram. Previously, some complaints are there on accused, and in routine, I inspected V.S.S. works of AC. Puram Section on 3rd and 4th of May 1997, and on my enquiry, I found 10 items of works entrusted to the accused were not carried out fully though amounts have been drawn for the purpose, a sum of Rs. 86,996/-. He said, amount was drawn from the Range Officer, AC Puram. The works shown in detail in Ex. P.1 (Item works 1 to 10). After conducting thorough enquiry, I came to conclusion that the above said sum was misappropriated by the accused. Thereby, I issued directions vide Rc. No. 1660/97/B4, dated 9.5.97, calling to remit the said amount. Ex.P.2 is Rc. No. 1660/97 marked. Later, I have submitted detail report of my inspection to the Conservator of Forests, Khammam, vide Rc. No. 523/98/B3, dated 17.2.98. Basing on my report, the Conservator of Forests, Khammam, issued proceedings vide R.C. No. 8, 70/98-Ml(1), dated 20.2.98. Later, I have received Rc. No. 34/AC/98, dated 11.7.98, from the Range Officer, Venkatapuram, stating that the accused misappropriated for an amount of Rs. 63,420/-. I have submitted a report to the Conservator of Forests with Form-Ill proposals vide Rc. No. 523/98/B3, dated 17.7.98. Ex.P.3 marked. During my inspection regarding above said allegations, I enquired with the V.S.S. Members and Chair-persons. Later, I have lodged a complaint before the SHO, Venkatapuram, which is Ex.P.4. I was examined by the Police.
It is important to note that the charge memo was issued on 15.08.1998. The steps taken by the Enquiry Officer are that, (a) he inspected the records on 3rd and 4th of January, 1997, (b) he issued directions to the Forest Range Officer on 09.05.1997, after he came to the conclusion that the above-mentioned sum was misappropriated by the employee/accused, (c) based upon the report of the said Officer dated 17.02.1998, the Conservator of Forests issued proceedings, dated 20.02.1998, stating that the employee misappropriated the amounts, (d) he was appointed as the Enquiry Officer on 27.11.1998 and submitted a report on 21.10.1999, after conducting the enquiry.
Though it was pleaded before the Tribunal and this Court that the Enquiry Officer lodged a complaint against the employee, after he submitted a report, the same is found to be incorrect.
In the cross-examination, the Enquiry Officer stated "I have lodged a complaint before the S.H.O., P.S. Venkatapuram on 12.11.1998. The A.C. Puram V.S.S. comes under P.S. Wazeedu, which was known to me subsequently. Subsequently, on 19.11.1998, I made a complaint to S.H.O., Wazeedu."
Thus, it was about a week thereafter, that the Divisional Forest Officer came to be appointed as the Enquiry Officer.
The appellate authority did not take this aspect into account, nor did the Tribunal. An Officer, who was instrumental in initiation of the disciplinary proceedings against an, employee, cannot generally be appointed as Enquiry Officer. With a prejudice in his mind and pre-determined motions about the employee, he cannot be expected to act impartially. The conducting of departmental enquiry is not an empty formality. An impartial assessment on the allegations made by the department on one hand and the defence offered by the employee on the other hand, is required to be undertaken. If the Enquiry Officer himself was instrumental in initiation of the disciplinary proceedings, his prejudice would be more than that of the Presiding Officer. Departmental bias manifests itself in such cases. The report submitted by the Enquiry Officer of that nature is totally vitiated and no punishment whatever can be imposed, on the basis of that report. In all fairness, the then Officer, who held the Office of the 2nd respondent, ought to have acceded to the request of the employee for change of the Enquiry Officer.
The proper course in matters of this nature would be to direct fresh enquiry. However, since the employee is not alive, that option is not available.
The allegation made against the employee was that he had misappropriated a sum of Rs. 50,420/- in the course of execution of the works and did not account for Rs. 13,000/- to be paid for Vana samrakshana purpose. Though the employee had his own explanation to offer in this regard, we are of the view that the said amount, together with the probable interest thereon, can be recovered from his death cum retirement benefits.
Hence, we allow the Writ Petition and set aside the order passed by the Tribunal. We proceed to set aside the order, dated 31.01.2000, passed by the 2nd respondent, dismissing the employee, the husband of the petitioner herein, from service, as upheld by the 1st respondent in the appeal through order, dated 17.06.2005. The 2nd respondent shall release all the death cum retirement benefits of the employee, late N. Srinivasan, by deducting a sum of Rs. 1,00,000/- (Rupees One lakh only). He shall also release 50% of the wages for the period during which the employee was under suspension and dismissal. If the said benefits and amounts are released within three (3) months from the date of receipt of a copy of this order, they shall not carry any interest. In default, the amount shall carry interest at 9% per annum, from the date on which the employee attained the age of superannuation. There shall be no order as to costs. The Miscellaneous Petitions, if any, pending in the writ petition shall stand disposed of.