The State Of Telangana, v. Sri K. Dasaratham,

HON'BLE SRI JUSTICE SURESH KUMAR KAIT & HON'BLE DR JUSTICE SHAMEEM AKTHER W.P. No. 8062 of 2017 O R D E R:- (ORAL) (Per Hon'ble Sri Justice Suresh Kumar Kait) This writ petition is filed by the petitioners - Government challenging the order dated 28.03.2016 passed by the Tribunal in O.A.No. 6775 of 2012, whereby the Tribunal, while allowing the O.A., directed the respondents therein to release the withheld pension benefits to the 1st respondent - applicant, within a period of three months from the date of receipt of a copy of the order.

The learned Government Pleader for Services appearing on behalf of the petitioners, submits that a charge was framed against the 1st respondent which is as follows: " That you, Sri K.Dasaratham, while working as CTO, Suryapet, Nalgonda District actuated by corrupt motive and in abuse of your official position, demanded and accepted an illegal gratification of Rs.20,000/ - from the complainant - Sri Y.Brahmam Goud, Managing Partner of M/ s.Venkatakrishna Trading Company, Suryapet, Nalgonda District on 25.03.2005 in your office for not issuing the notice to the firm of the complainant for the irregularities noticed and to settle the issue amicably in favour of the complainant and thereby you are guilty of misconduct within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964 read with Rule 2(b) of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989 framed under the A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 as amended in 1993."

Thereafter, the 1st respondent filed reply to the charge framed against him. Finding no substance in the reply, the disciplinary authority appointed an enquiry officer, who, after conducting enquiry, submitted a report which reads as under: " PW1, in fact, filed a complaint with the DSP, ACB, Ex.P2. PW1 is a businessman having rice-mill. PW1 has clearly stated in the complaint that there was a demand of bribe by the CO of Rs.20,000/ - for not to issue notice to his firm. Rs.20,000/ - is admittedly produced by PW1 before the DSP in the presence of mediators and admittedly mediators have noted down the numbers of the currency notes in pre-trap proceedings on 25.03.

2005, PW1 approached the CO and CO has ascertained whether PW1 has brought the demanded bribe amount or not and there was no reason whatsoever for PW1 to place money in the bathroom ventilator unless he was instructed to do so. I observed during earlier lines of my discussion that the official favour is pending with CO. In fact, the records pertaining to PW1 were seized by the DSP in the office of CO. Therefore, the possibility of tainted money kept in the ventilator on the instructions of CO, cannot be ruled out. In fact, in Ex.P9, PW1 has stated that the tainted money was kept on the instructions of CO. It is also found in the evidence that the trap party members went into the bathroom along with the CO and PW1 and found the tainted amount at the ventilator. PW1 has stated that tainted amount was kept by him was changed.

This incidence draws support as the two corners of the ventilator were subjected to sodium carbonate solution test which yielded in positive result. This indicates that soon after PW1 left the room, the CO went into the bathroom and changed the place of the tainted money from one corner to another corner. Therefore, when his right hand fingers dipped into the solution, they yielded in positive result. The learned Government counsel has relied on a ruling reported in 1996(10) SC 371 - Hostile - Not a case of no evidence where charge held proved on the statement of one witness even though 17 witnesses turned hostile - Disciplinary Authority perfectly empowered to take appropriate decision on findings and penalty.

In one of the rulings relied by the Government Counsel is a case between M.Narsinga Rao v. State of Andhra Pradesh reported in 2001 Crl.L.J. SC 515 - Trap - Appreciation of evidence - Complainant and accompanying witness turned hostile - Accused was convicted by the trial Court. In the instant case also, PW1 indeed has turned hostile but the evidence of PW3 is worth of credence that there was no motive whatsoever for PW3 to give false evidence against the CO."

The learned Government Pleader submits that the charge framed against the 1st respondent is very grave in nature and tainted money was recovered from the bathroom ventilator of the 1st respondent and the test report was also positive. In spite of that the learned Tribunal has not relied upon the enquiry report and allowed the O.A. filed by the 1st respondent.

The issue that arose for consideration before the Tribunal was as to whether the 1st respondent was guilty of the charge based on the evidence?

It is settled principle of law that the Courts can interfere with the penalty in question if only the findings of the Enquiry Officer are based on no evidence and are based on surmises and conjectures. In this case, the enquiry report dated 02.07.2008 shows that the de facto complainant - Y. Brahmam Goud was examined as PW1. But, he did not support the prosecution case by deposing that he never paid the bribe amount to the 1st respondent, but the President of Rice Miller's Association of Nalgonda District by name

Ananthula Janardan informed him that he paid the bribe amount of Rs.20,000/ - to the 1st respondent on the date of occurrence i.e. 09.02.2005. He was declared hostile and cross-examined at length by the Government Pleader, but nothing was elicited from him to show that on demand of the 1st respondent, he paid him the bribe of Rs.20,000/ - on that day. PW2 is the Accountant of PW1, and he too, turned hostile to the case of Disciplinary Authority. PW3 is the mediator, who charge sheeted about trap proceedings and accompanied him in the office of the 1st respondent on that day. He stated in his evidence that when himself, DSP, ACB and other staff members were waiting in the office of CTO, the 1st respondent alone went into the office around 12:00 p.m.

and later came out, gave pre-arranged signal, and thereafter himself, other mediator, DSP and staff went into the chambers of the 1st respondent and found the tainted amount on the ventilator of the toilet attached to the office of the 1st respondent and recovered it. He also stated that the 1st respondent denied his guilt when examined by the DSP, ACB.

It is also evident that DSP conducted phenolphthalein test to both hand fingers of the 1st respondent and the right hand fingers alone turned into pink colour. PWs.4 to 8 are the ACTOs at the relevant point of time. PW9 is the retired Joint

Commissioner of Commercial Taxes. Their evidence has no bar in the issue directly.

PW10 is the DSP, who deposed that PW1 complained to him about the demand of bribe amount by the 1st respondent on 24.03.2005 and on registering the case, a trap on the 1st respondent was conducted on 24.03.2005 and the tainted amount of Rs.20,000/ - recovered from the ventilator of his bathroom attached to his chamber in the presence of the mediators on that day. He also stated that phenolphthalein test conducted on the right hand fingers of the 1st respondent yielded positive result.

It is pertinent to mention here that as per the evidence mentioned above, it is clear that the de facto complainant turned hostile and has not supported the version of the disciplinary authority including demand and payment of bribe. He denied the very report of ACB authorities. The crucial witness - Janardan Goud, who is said to be the President of Rice Miller's Association of Nalgonda District, was not examined in the enquiry.

It is a case where tainted amount was not recovered from the possession of the 1st respondent, but it was found in the ventilator of the toilet attached to his chamber. The 1st respondent examined DW1 who is his Stenographer. He stated in his evidence that by the time the ACB authorities

came, the 1st respondent was in his room giving dictation to him right from morning and the ACB authorities accosted him. He denied the entire incident. It is also his evidence that PW1, who came to the office on that day, conveyed Holi greetings to the 1st respondent by shaking his hands and left the place, but did not pay any amount to the 1st respondent. In view of the version of the aforesaid witness, weight cannot be attached to the result of phenolphthalein test conducted on the right hand fingers of the 1st respondent. Accordingly, the learned Tribunal recorded in its order that there is possibility of his right hand fingers turning pink in colour to the test due to the shaking of hand with PW1 on that day. Had the tainted amount been recovered from his pocket, things would have been different. Since he was said to be in the dictation room with the Stenographer all through, there is a possibility for other persons also for placing the tainted amount in his toilet without his knowledge.

Accordingly, the learned Tribunal opined that under these circumstances, unless there is some evidence in proof of the demand and acceptance of bribe by the 1st respondent for doing official favour and recovery of tainted amount directly from him, the Disciplinary Authority, ought not to have held the charge proved.

Had the tainted amount would have been recovered from his pocket, then significance should have been attached to the result of the phenolphthalein test.

When this Court put a query to the learned Government Pleader for Services appearing on behalf of the petitioners as the 1st respondent was caught in a raid laid by the ACB authorities, what is the result of the criminal case? He replied that criminal case was dropped against the 1st respondent due to lack of evidence, however directed the Department to initiate disciplinary action.

Vide Proceedings Memo No. 14421/ Vig.I(1)/ 2005-1, dated 15.09.2006, the Principal Secretary, Revenue had taken decision as under:

" Discreet enquiries conducted by the appropriate authority on the allegations against Sri K. Dasaratham, Commercial Tax Officer, Suryapet, Nalgonda District relating to demand and acceptance of bribe of Rs.20,000/ - from the complainant on 25.03.2005 for showing the official favour of not issuing the offence notice to the firm of the complainant, to return the records of the mill and to settle the issue amicably in favour of the complainant, reveal prima facie the need to probe into the matter in detail. The Government have decided to entrust the case against the said individual to the Tribunal for Disciplinary Proceedings for detailed and regular inquiry into the allegation.

Under Rule 3 of the A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989 read with Section 4 of APCS (DPT) Act, 1960, Sri K. Dasaratham, Commercial Tax Officer, Suryapet, Nalgonda District is placed on defence before the Disciplinary Proceedings Tribunal to inquire into the allegation of demand and acceptance of bribe Rs.20,000/ - from the complainant. The Tribunal for Disciplinary proceedings shall

conduct enquiry as per rules and submit its report to the Government within the stipulated period.

The Director General, Anti-Corruption Bureau shall furnish all relevant records and material to the Tribunal for Disciplinary Proceedings to conduct inquiry."

In view of the facts recorded above, we find no perversity or illegality in the decision taken by the Tribunal. Hence, we find no merit in the writ petition and the same is liable to be dismissed.

However, before parting with the present case, it is pertinent to mention that the 1st respondent herein filed W.P. No. 4894 of 2017 and the same was disposed of on 06.03.2017 directing the authorities concerned to abide by and implement the order dated 28.03.2016 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A.No.6775 of 2012 expeditiously, and in any event, not later than six weeks from the date of receipt of a copy of the order. Since the present writ petition was pending before this Court, the petitioners - authorities might not have complied with the order. However, we direct the petitioners herein to comply with the order dated 28.03.2016 passed by the Tribunal in O.A.No. 6775 of 2012 and the order dated 06.03.2017 passed by this Court in W.P. No. 4894 of 2017, within a period of two weeks from the date of receipt of a copy of this order. Even though the learned Government Pleader for Services has sought four weeks' time to comply with the

above-mentioned orders, we reject his request on the ground that the wife of the 1st respondent is a cancer patient and the 1st respondent - applicant needs money immediately for the said purpose.

Accordingly, the writ petition is disposed of. No order as to costs.

As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.

_____________________ SURESH KUMAR KAIT, J 22.06.2017 ______________________ DR. SHAMEEM AKTHER, J bcj