WP/22972/2007 of T.P. Sowmithri Vs The High Court of Andhra Pradesh, Rep. by its Registrar, on 31 December 2009

1. (2000)6 Supreme Court Cases 562

2. AIR 1974 SUPREME COURT 259

3. AIR 1963 Supreme Court 1723

4. AIR 1964 Supreme Court 364

5. AIR 1965 Supreme Court 1103

6. AIR 1969 Supreme Court 983

7. (1978)3 Supreme Court Cases 366

8. (1975)1 Supreme Court Cases 574

9. (1988)3 Supreme Court Cases 370

10. (199)2 Supreme Court Cases 10

11. (1999)5 Supreme Court Cases 762

12. (2002)7 Supreme Court Cases 142

13. (2003)3 Supreme Court Cases 583

14. AIR 1977 SUPREME COURT 1512

15. AIR 1982 SUPREME COURT 673

16.1999(7) SUPREME 612

17. (1999)8 Supreme Court Cases 582

HONOURABLE SRI JUSTICE A.GOPAL REDDY&HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

WRIT PETITION No.22972 of 2007

Date: 29.12.2009

Between:T.P.Sowmithri

And:

…..Petitioner

The High Court of Andhra Pradesh and another

…..Respondents.

HONOURABLE SRI JUSTICE A.GOPAL REDDY&HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

WRIT PETITION No.22972 of 2007

ORDER:(PER HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU)

This petition is filed seeking writ of Certiorari for quashing orderin Roc.No.129/2001 CII/1, dated 07.10.2002 of the 1[st] respondentconfirming order in L.Dis.No.4616, dated 02.07.2001 of the 2[nd]respondent and for reinstating the petitioner into service with allconsequential benefits.

2) The petitioner was working as typist in the Mahila Court,Visakhapatnam in the Visakhapatnam unit and the 2[nd] respondentnamely District and Sessions Judge, Visakhapatnam was the unithead. After conducting enquiry under Rule 20 of the A.P.CivilServices (Classification, Control and Appeal) Rules, 1991 the DistrictJudge imposed punishment of compulsory retirement on the petitioner and it was confirmed by the High Court on administrative side inappeal filed by the petitioner. Therefore, the petitioner approached thisCourt for necessary relief under Article 226 of the Constitution of India.

3) It is alleged that the petitioner took Rs.5,000/- from thecomplainant Poosarla Lakshmana Rao of Bheemunipatnam on18.12.1998 assuring him with a job in Judicial department for his sonand cheated Lakshmana Rao and that when Lakshmana Raodemanded repayment of the said sum of Rs.5,000/- with interest, thepetitioner gave a post dated cheque for Rs.5,500/- in his favour on07.04.1999 and the said cheque was dishonoured for want of sufficientfunds in the petitioner’s account. The petitioner denies havingreceived Rs.5,000/- from Lakshmana Rao for securing a job to his sonin Judicial department. But, the petitioner did not dispute about hegiving cheque for Rs.5,500/- to Lakshmana Rao and dishonour of thatcheque. The petitioner contends that Lakshmana Rao gave Rs.5,000/-to him as hand loan and that the petitioner gave cheque for Rs.5,500/-to Lakshmana Rao towards repayment of the said debt with interest. There is no dispute that after dishonour of cheque issued by thepetitioner, Lakshmana Rao got issued registered legal notice on24.04.1999 to the petitioner demanding him to pay amount covered bythe cheque and that the petitioner did not give reply to that notice anddid not pay amount covered by the cheque and that thereuponLakshmana Rao filed C.C. No.214 of 1999 against the petitioner in theCourt of IX Metropolitan Magistrate, Bheemunipatnam for offencepunishable under Section 138 of the Negotiable Instruments Act andthat subsequently after compromise between Lakshmana Rao and thepetitioner, Lakshmana Rao absented himself resulting in dismissal ofC.C No.214 of 1999 and acquittal of the accused (the petitioner) underSection 256 Cr.P.C. on 03.05.2000.

4) When the above criminal case was pending, Lakshmana Raogave complaint-petition to the Judge, Mahila Court, Visakhapatnam on 21.12.1999 marking copy of the said petition to the District Judge,Visakhapatnam and to the Honourable Chief Justice, High Court ofAndhra Pradesh, Hyderabad. Lakshmana Rao has got two sons, outof whom his eldest son is working as L.I.C agent and his second sonwas without any employment after passing intermediate course. In thecomplaint, Lakshmana Rao alleged that one A.Bhaskara Rao who isworking as Development Officer in L.I.C at Visakhapatnam used tofrequently visit Bheemunipatnam and that Bhaskara Rao representedto him about the petitioner being his friend and there being somevacancies in Court and assuring him with a job for his second son andthat Bhaskara Rao asked him to pay Rs.5,000/- to the petitioner andtook him on 18.12.1998 to the petitioner’s house bearing Door No.7-14, Midhya Veedhi, Santhosh Nagar, Adavivaram, Simhachalam andthat Lakshmana Rao took his second son with them along withPhotostat copies of S.S.C certificate and Intermediate pass certificateetc., and that at about 8.00 A.M after receiving Rs.5,000/- from him, thepetitioner took some signatures of his second son on some blankapplication forms and also took Photostat copies of pass certificates ofhis second son. It is further alleged that in spite of meeting thepetitioner at his house and at the Court premisis, no job could besecured and that Bhaskara Rao was not to be seen and that onenquiries, Lakshmana Rao came to know about Bhaskara Rao takingmany jobless persons to the petitioner who collected heavy amountsfrom them with assurance of securing jobs to them in Judicialdepartment and that on 02.04.1999 when he and his son demandedthe petitioner and Bhaskara Rao for return of Rs.5,000/- along withinterest and threatened to give report to the District Judge,Visakhapatnam on that subject, the petitioner gave post-dated chequefor Rs.5,500/- on Andhra Bank, Simhachalam.

5) The District Judge, Visakhapatnam on receipt of the saidcomplaint copy from Lakshmana Rao, ordered preliminary enquiry in the matter by the Sessions Judge, Mahila Court, Visakhapatnam. Aftermaking preliminary enquiry, in which statement of Lakshmana Raowas recorded and copies of dishonoured cheque, dishonour memo ofthe Bank, notice etc., were collected, the Sessions Judge, MahilaCourt, Visakhapatnam sent preliminary enquiry report to the DistrictJudge, Visakhapatnam stating that there is prima facie material to holda regular enquiry against the petitioner. Thereupon, the District Judge,Visakhapatnam by the order dated 27.03.2000 framed charges againstthe petitioner and communicated the same to him along withannexures I to III and calling upon him to submit written statement ofhis defence if any. Charges framed by the District Judge,Visakhapatnam against the petitioner are as follows:

“That you Sri T.P.Sowmitri while working as Typist, MahilaCourt, Visakhapatnam took a sum of Rs.5,000/- on 18-12-98from one Sri Poosarla Lakshmana Rao of Bheemunipatnamassuring a job in Judicial Department to the son of the saidLakshmana Rao stating that you know the Judges in theJudicial Department and cheated the complainant SriPoosarla Lakshmana Rao under a false assurance andthereby you exhibited misconduct and unbecomingnesswhich acts of yours if, proved or established would amountto grave misconduct and unbecomingness within themeaning of Rule 3 of A.P.Civil Services (Conduct) Rules,1964”.

“That the said complainant Sri Poosarla Lakshmana Raohaving come to know that he was cheated by youT.P.Sowmitri he demanded repayment of Rs.5,000/- withinterest for which you issued a postdated cheque forRs.5,500/- in the name of Poosarla Lakshmana Rao,complainant on 7-4-99 which was bounced for want ofsufficient funds and thereupon the said Lakshmana Rao gotissued a Registered Lawyer’s notice on 24-4-99 demandingyou to pay the amount of Rs.5,500/- covered by the chequebut you did not pay the amount, though you have receivedthe registered notice and thereby you have exhibited gravemisconduct and unbecomingness which acts of yours if,proved or established would amount to grave misconductand unbecomingness within the meaning of Rule 3 of A.P.Civil Services (Conduct) Rules, 1964”.

6) The petitioner submitted written statement to the DistrictJudge, Visakhapatnam denying taking Rs.5,000/- from LakshmanaRao with assurance of securing job to his second son, but contendingthat Lakshmana Rao gave Rs.5,000/- to him as hand loan and heattempted to repay that loan amount with interest by giving cheque forRs.5,500/- to Lakshmana Rao. He further pleaded that C.C. No.214 of1999 filed by Lakshmana Rao against him for dishonour of chequewas dismissed for his absence as Lakshmana Rao received entireloan amount thereafter. After considering written statement of defenceof the petitioner, the District Judge appointed the IV Additional DistrictJudge, Visakhapatnam as Enquiry Officer for conducting enquiry intocharges of misconduct framed against the petitioner. During enquiry,the enquiry officer examined P.Ws 1 to 3 and marked Exs.A-1 to A-11and after following procedure prescribed by Rule 20 of the A.P. C.S(CC & A) Rules gave enquiry report dated 22.12.2000 holding that thepetitioner is guilty of the charges framed against him. P.W-1 is BranchManager of Andhra Bank, Simhachalam and she was examined tospeak about dishonour of cheque issued by the petitioner on hisaccount lying with that branch. P.W-2 is the complainantP.Lakshmana Rao. P.W-3 is the Sessions Judge, Mahila Court,Visakhapatnam, who is the preliminary enquiry officer. The enquiryofficer based his conclusion of guilt on Exs.A-5, A-9 and A-10 and alsooral testimony of P.W-2. Ex.A-5 is petition given by Lakshmana Rao. Ex.A-9 is copy of legal notice got issued by Lakshmana Rao to thepetitioner. Ex.A-10 is sworn statement of Lakshmana Rao recorded byP.W-3, who is the preliminary enquiry officer. The District Judge,Visakhapatnam after enclosing copy of enquiry report called upon thepetitioner to submit representation if any. The petitioner submitted hisrepresentation and after considering the entire material on record, theDistrict Judge accepted finding of guilt recorded by the enquiry officeron the charges and passed order dated 02.07.2001 imposing punishment of compulsory retirement from service on the petitioner. As against the said order, the petitioner filed appeal to the High Courton administrative side. The High Court by the order-dated 07.10.2002dismissed the appeal. After a long period of nearly five years, thepetitioner has chosen to question the same in this writ petition.

7) It is contended by the petitioner’s counsel that enquiry report isperverse and is not based on legal evidence and that the enquiryofficer should have acted on evidence of Lakshmana Rao recorded byhim during enquiry and should not have taken into account statementof Lakshmana Rao recorded during preliminary enquiry. It is furthercontended that material witness namely Bhaskara Rao was notexamined during enquiry and that therefore, the enquiry and reporttherein are vitiated. It is further contended that enquiry officer did notbase his conclusions on considerations, which are germane. On theother hand, it is contended by the respondents’ counsel that enquiryreport is valid and is based on proper and legal material and that thepetitioner could not point out any violation of procedure by the enquiryofficer under Rule 20 of the Rules in conducting enquiry. It is alsocontended for the respondents that delay in approaching this Court byway of this writ petition is fatal and that no reason was put forward bythe petitioner explaining delay and latches on his part in filing the writpetition.

8) In Life Insurance Corporation of India V. Jyotish ChandraBiswas[[1]], when order of termination of the petitioner was passed on28.01.1969, it was challenged by writ petition on 25.03.1975 after sixyears and when there is no explanation whatsoever in the writ petitionfor this inordinate delay, the Supreme Court concluded that it indicatedthat the petitioner accepted order of termination of his services if notexpressly but impliedly. On the other hand the petitioner’s counselplacing reliance on Ramachandra Sankar Deodhar V. State of

Conclusion

Maharashtra[[2]]contended that the principle on which the Courtproceeds in refusing relief to the petitioner on ground of latches ordelay is that rights which have accrued to other by reason of delay infiling the petition should not be allowed to be disturbed unless therewas reasonable explanation for the delay. It was a decision renderedby the apex Court in a matter relating to denial of promotion to thepetitioners. It is not a case of termination of services of theGovernment servant. Observations of the Supreme Court in the latterdecision cannot be applied to facts of this case which relates tocompulsory retirement of the petitioner from service. The formerdecision which is later in point of time is aptly applicable to facts of thiscase.In this writ petition, the petitioner did not attempt to explaininordinate delay of five years in filing this writ petition after disposal ofdepartmental appeal by the 1[st] respondent. On the other hand, inPara-2 of their counters, the respondents 1 and 2 specifically pleadedthat unexplained delay on the part of the writ petitioner in notchallenging disciplinary proceedings for all these years is fatal tomaintainability of this writ petition. In spite of it, the petitioner did notmake any endeavour to file reply affidavit putting forth any reasonsexplaining the inordinate delay. It only suggests that the petitioner hasno explanation at all for the delay. It is contended by the petitioner’scounsel that due to poverty and lack of funds, the petitioner might nothave taken diligent steps to file this writ petition immediately afterdisposal of departmental appeal by the 1[st] respondent. On the otherhand the respondents’ counsel contended that the delay may suggestthat the petitioner was gainfully employed elsewhere and therefore, hewas not very much serious in questioning the disciplinary proceedingsby way of this writ petition. Having regard to circumstances of thecase, we have to conclude that the petitioner has tacitly accepted hiscompulsory retirement from service; or otherwise he would not haveslept over the order of compulsory retirement from service for all thesefive years conveniently.

9) No doubt, this Court exercising powers under Article 226 ofthe Constitution of India will not hesitate to interfere in departmentalenquiry results in case findings of the enquiry officer, the disciplinaryauthority and the appellate authority are based on no evidence andbased on mere surmises and conjectures and also in case findingsrecorded in disciplinary proceedings are perverse. The petitioner’scounsel took us through catena of legal pronouncements of the ApexCourt on this aspect. As a matter of recapitulation, those decisionsmay be briefly reproduced herein.

In State of Andhra Pradesh V. S.Sreerama Rao[[3]], on scope ofscrutiny under Article 226 of the Constitution of India by the HighCourt, it was observed:

“The High Court is not constituted in a proceeding underArticle 226 of the Constitution a Court of appeal over thedecision of the authorities holding a departmental enquiryagainst a public servant: it is concerned to determinewhether the enquiry is held by an authority competent in thatbehalf, and according to the procedure prescribed in thatbehalf, and whether the rules of natural justice are notviolated. Where there is some evidence, which the authorityentrusted with the duty to hold the enquiry has accepted andwhich evidence may reasonably support the conclusion thatthe delinquent officer is guilty of the charge, it is not thefunction of the High Court in a petition for a writ under Article226 to review the evidence and to arrive at an independentfinding on the evidence. The High Court may undoubtedlyinterfere where the departmental authorities have held theproceedings against the delinquent in manner inconsistentwith the rules of natural justice or in violation of the statutoryrules prescribing the mode of enquiry or where theauthorities have disabled themselves from reaching a fairdecision by some considerations extraneous to the evidenceand the merits of the case or by allowing themselves to beinfluenced by irrelevant considerations or where theconclusion on the very face of it is so wholly arbitrary andcapricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But thedepartmental authorities are, if the enquiry is otherwiseproperly held, the sole judges of facts and if there be somelegal evidence on which their findings can be based, theadequacy or reliability of that evidence is not a matter whichcan be permitted to be canvassed before the High Court in aproceeding for a writ under Article 226 of the Constitution.”

I n Union of India V. H.C.Goel[[4]],it was laid down by theSupreme Court :

“There can be little doubt that a writ of certiorari, forinstance, can be claimed by a public servant if he is able tosatisfy the High Court that the ultimate conclusion of theGovernment in the said proceedings, which is the basis ofhis dismissal, is based on no evidence.”

In State of Madras V. G.Sundaram[[5]], it was held by the SupremeCourt that the High Court in exercise of its jurisdiction under Article226 of the Constitution of India cannot sit in appeal over findings of factrecorded by a competent Tribunal in a properly conducteddepartmental enquiry except when it is shown that the impugnedfindings were not supported by any evidence.

In Central Bank of India V. Prakash Chand Jain[[6]], the Supreme Court observed:

“The principle that a fact sought to be proved must besupported by statements made in the presence of the personagainst whom the enquiry is held and that statements madebehind the back of the person charged are not to be treatedas substantive evidence, is one of the basic principles whichcannot be ignored on the mere ground that domestictribunals are not bound by the technical rules of procedurecontained in the Evidence Act.”

In Nand Kishore Prasad V. State of Bihar[[7]]the Supreme Courtreiterated:

“Disciplinary proceedings before a domestic tribunal are

of a quasi-judicial character; therefore, the minimumrequirement of the rules of natural justice is that the tribunalshould arrive at its conclusion on the basis of someevidence, i. e. evidential material which with some degree ofdefiniteness points to the guilt of the delinquent in respect ofthe charge against him. Suspicion cannot be allowed to takethe place of proof even in domestic inquiries.”

In L.Michael V. Johnson Pumps Limited[[8]], on the question ofinterference by the Supreme Court with a finding fact recorded by thetrial Court, the Supreme Court held:

“If such a finding is based on no evidence, or is the resultof a misreading of the material evidence, or is sounreasonable or grossly unjust that no reasonable personwould judicially arrive at that conclusion, it is the duty of thisCourt to interfere and set matters right.”

In Ishwarchand Jain V. High Court of Punjab and Haryana[[9]], itwas held by the Supreme Court that if the conclusions are based onnon-existent and irrelevant material and if order of termination wasbased on unsubstantiated allegations, then such order is liable to beset aside.

In Kuldeep Singh V. Commissioner of Police[[10]], the SupremeCourt observed:

“The power of judicial review available to the High Courtas also to this Court under the Constitution takes in its stridethe domestic enquiry as well and it can interfere with theconclusions reached therein if there was no evidence tosupport the findings or the findings recorded were such ascould not have been reached by an ordinary prudent man orthe findings were perverse or made at the dictate of thesuperior authority.”

In Bank of India V. Degala Suryanarayana[[11]], the SupremeCourt held:

“STRICT rules of evidence are not applicable todepartmental enquiry proceedings. The only requirement oflaw is that the allegation against the delinquent officer must be established by such evidence acting upon which areasonable person acting reasonably and with objectivitymay arrive at a finding upholding the gravamen of thecharge against the delinquent officer. Mere conjecture orsurmises cannot sustain the finding of guilt even indepartmental enquiry proceedings. The Court exercising thejurisdiction of judicial review would not interfere with thefindings of fact arrived at in the departmental enquiryproceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or wherea finding is such that no man acting reasonably and withobjectivity could have arrived at that finding.”

In Sher Bahadur V. Union of India[[12]], the Supreme Court observed:

“The expression "sufficiency of evidence" postulatesexistence of some evidence which links the charged officerwith the misconduct alleged against him. Evidence,however, voluminous it may be, which is neither relevant ina broad sense nor establishes any nexus between thealleged misconduct and the charged officer, is no evidencein law.”

In Lalit Popli V. Canara Bank[[13]],the Supreme Court madecomparison of nature of proof required in criminal proceedings as wellas disciplinary proceedings before a domestic tribunal and laid down.

“IT is fairly well settled that the approach and objective incriminal proceedings and the disciplinary proceedings arealtogether distinct and different. In the disciplinaryproceedings the preliminary question is whether theemployee is guilty of such conduct as would merit actionagainst him: whereas in criminal proceedings the question iswhether the offences registered against him are establishedand if established what sentence should be imposed uponhim. The standard of proof, the mode of enquiry and therules governing the enquiry and trial are conceptuallydifferent. [see State of Rajasthan v. B. K. Meena and Ors.(1996) 6 SCC 417)]. In case of disciplinary enquiry thetechnical rules of evidence have no application. Thedoctrine of "proof beyond doubt" has no application.Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not thedelinquent has committed misconduct.

WHILE exercising jurisdiction under Article 226 of theConstitution the High Court does not act as an appellateauthority. Its jurisdiction is circumscribed by limits of judicialreview to correct errors of law or procedural errors leading tomanifest injustice or violation of principles of natural justice.Judicial review is not akin to adjudication of the case onmerits as an Appellate Authority”

10) Apart from the above case law relied upon by the petitioner’scounsel, the respondents’ counsel cited certain reported decisions ofthe apex Court on these aspects. I n State of Haryana V. RattanSingh[[14]], the Supreme Court enunciated the following principlesregarding rules of evidence in a domestic enquiry:

“IT is well settled that in a domestic enquiry the strict andsophisticated rules of evidence under the Indian EvidenceAct may not apply. All materials which are logicallyprobative for a prudent mind are permissible. There is noallergy to hearsay evidence provided it has reasonablenexus and credibility. The essence of a judicial approach isobjectivity, exclusion of extraneous materials orconsiderations and observance of rules of natural justice. Ofcourse, fairplay is the basis and if perversity or arbitrariness,bias or surrender or independence of judgment vitiate theconclusions reached, such finding, even though of adomestic tribunals cannot be held good. Sufficiency ofevidence in proof of the finding by a domestic tribunal isbeyond scrutiny. Absence of any evidence in support of afinding is certainly available for the court to look intobecause it amounts to an error of law apparent on therecord.”

I n J.D.Jain V. Management of State Bank of India[[15]],the Supreme Court reiterated “IN an application for a Writ of Certiorari under Art. 226 of theConstitution for quashing an award of an Industrial Tribunal,the jurisdiction of the High Court is limited. It can quash theaward, inter alia, when the Tribunal has committed an errorof law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. The learned Tribunal hascommitted another error in holding that the finding of thedomestic enquiry was based on "hearsay" evidence. Thelaw is well-settled that the strict rules of evidence are notapplicable in a domestic enquiry.”

In R.S.Saini V. State Of Punjab[[16]], the Supreme Court summarised by saying:

“Scope of judicial review in matters of this nature beingrestricted, the High Court had to consider the challenge tothe impugned order with a limited degree of scrutiny thatwas called for. We too have considered the complaint withinthat limited scope in order to find out the correctness of theallegation that the impugned order of the disciplinaryauthority suffered from the vice of perversity, non-applicationof mind and tainted by malice and having come to theconclusion that the report of the enquiring authority cannotbe faulted with on any of the grounds stated above, we areunable to agree with the appellant. For the reasons statedabove, this appeal fails and is hereby dismissed.”

11) In the light of above case law on the subject, we propose toexamine report of enquiry officer herein, which was accepted by thedisciplinary authority and the appellate authority. The petitionerprimarily contends that P.W-2 Lakshmana Rao did not support thecharges and supported version of the petitioner and that thereforefinding of the enquiry officer is based on no evidence and that the saidfinding is also perverse. No doubt, as P.W-2, P.Lakshmana Raostated before the enquiry officer that he lent an amount of Rs.5,000/- tothe charged employee and that the charged employee executed apromissory note in his favour and that Bhaskara Rao obtainedsignatures of his second son on blank application form and that on02.04.1999 he and his son came to the conclusion that Bhaskara Raoand the charged employee cheated them and that they demandedrepayment of money with interest from the charged employee. Fromthese pieces of evidence, it is contended by the petitioner’s counselthat transaction between Lakshmana Rao and the petitioner was only

loan transaction and that it is not a transaction with the assurance ofsecuring job to son of Lakshmana Rao as alleged in the charge. Relying upon decision of the Supreme Court in Hardwari Lal V. Stateof U.P[[17]], it is urged by the petitioner’s counsel that having regard tofacts of the case and evidence in the enquiry, Bhaskara Rao is amaterial witness and failure to examine Bhaskara Rao vitiates theenquiry. No doubt, even from the beginning i.e., from the stage ofEx.A-5 complaint of Lakshmana Rao, it was Bhaskara Rao, who stoodas middleman between Lakshmana Rao and the petitioner. But, at nopoint of time, Bhaskara Rao handled cash of Rs.5,000/- between thepetitioner and Lakshmana Rao. In Ex.A-5 complaint given byLakshmana Rao on 21.12.1999, Lakshmana Rao did not contend thathe lent Rs.5,000/- to the petitioner. It is his case in Ex.A-5 complaintthat Bhaskara Rao approached him and represented about he havingbest friend who is the petitioner working as Typist in Mahila JudgeCourt at Visakhapatnam and there being some vacancies in Court andassuring him about the petitioner securing a job for his second son. Itis further stated in Ex.A-5 by Lakshmana Rao that he believedBhaskara Rao’s words with fond hope of getting job for his second sonand that Bhaskara Rao asked him to pay Rs.5,000/- to the petitionerand took him to the petitioner’s house at Santhosh Nagar ofAdavivaram of Simhachalam and that Lakshmana Rao asked hissecond son also to accompany him with photostat copies of S.S.Ccertificate and intermediate pass certificate etc., and that after receivingRs.5,000/- from him, the petitioner took some signatures of his secondson on blank application forms and took Photostat copies of passcertificates etc., of his second son. Nowhere in Ex.A-5 P.W-2 statedthat it is a case of loan transaction. Further, in Ex.A-5, there is noreference to execution of any promissory note by the petitioner infavour of Lakshmana Rao for the said sum of Rs.5,000/-. Duringenquiry before the enquiry officer, Lakshmana Rao as P.W-2 in hisexamination in chief itself categorically stated that contents of Ex.A-5

are true and correct and that at his instructions, Ex.A-5 complaint wastyped. Before the enquiry officer, P.W-2 did not give any explanationfor contents of Ex.A-5 which are contrary to what he stated as P.W-2before the enquiry officer.

12) Further, in Ex.A-9 legal notice got issued by LakshmanaRao(P.W-2) to the petitioner on 24.04.1999 prior to filing of criminalcase against him, Lakshmana Rao maintained the same stand whichis contained in Ex.A-5 complaint. It is not his case in Ex.A-9 that theamount of Rs.5,000/- was given as loan by him to the petitioner. It isnot his case in Ex.A-9 that after receiving Rs.5,000/- from him thepetitioner executed a promissory note in his favour for the said amount.If really it is a loan transaction, then the petitioner should have gone toLakshmana Rao’s house at Bheemunipatnam for seeking the debt andLakshmana Rao would not have gone to the petitioner’s house fromBheemunipatnam to Simhachalam for making payment of Rs.5,000/- tothe petitioner. It is pertinent to note at this stage that for Ex.A-9 legalnotice of Lakshmana Rao, the petitioner did not get any reply noticeissued disputing correctness of allegations in the legal notice. It isonly after closure of the criminal case, which occurred after thepetitioner repaid the sum of Rs.5,000/- with interest, Lakshmana Raotook a U-turn from that contained in Exs.A-5 and A-9. Before theenquiry officer, Lakshmana Rao as P.W-2 deposed that at hisinstructions, his counsel prepared Ex.A-9 legal notice and thatcontents of Ex.A-9 legal notice are true and correct. P.W-2 did not tryto explain or reconcile contents of Exs.A-5 and A-9 with his evidencebefore the enquiry officer.

13) Nextly, the preliminary enquiry officer who is the SessionsJudge, Mahila Court, Visakhapatnam (P.W-3) recorded swornstatement of Lakshmana Rao during preliminary enquiry as Ex.A-10. In Ex.A-10 statement given by Lakshmana Rao on oath before P.W-3also Lakshmana Rao consistently stated in support of contents of Exs.A-5 and A-9, as if he gave Rs.5,000/- to the petitioner onrecommendation of Bhaskara Rao as he was given assurance tosecure a job in Judicial department to his son. He did not state beforeP.W-3 that transaction relating to payment of Rs.5,000/- was a loantransaction between him and the petitioner. During enquiry before theenquiry officer, Lakshmana Rao as P.W-2 categorically stated that theSessions Judge, Mahila Court recorded his sworn statement on22.01.2000 as per Ex.A-10 and that Ex.A-10 bears is signature andthat after recording statement, the Sessions Judge, Mahila Court readover and explained contents of the same to him. Thus, P.W-2 admitstruth of Ex.A-10 statement recorded by P.W-3 and also certificateappended by P.W-3 at the end of Ex.A-10 statement. The preliminaryenquiry officer as P.W-3 stated during enquiry that PoosarlaLakshmana Rao (P.W-2) gave Ex.A-10 sworn statement to her andalso filed documents as mentioned in her preliminary enquiry report. P.W-3 was not at all cross-examined. In cross-examination of P.W-2,the charged employee did not attack P.W-2 on contents of Ex.A-5complaint, Ex.A-9 legal notice and Ex.A-10 sworn statement. Havingregard to proof of contents of Exs.A-5, A-9 and A-10 during enquirybefore the enquiry officer, it does not lie in the mouth of the petitioner tocontend that there is no legal evidence before the enquiry officer tocome to a conclusion against the petitioner on the charges. Havingregard to his consistent case in Exs.A-5, A-9 and A-10, the enquiryofficer rightly did not believe subsequent version of P.W-2 given duringenquiry to the affect that it is a case of lending of Rs.5,000/- by him tothe petitioner. In the circumstances, Bhaskara Rao may be a relevantwitness and it cannot be said that he is the only material witness. Even though Bhaskara Rao is not examined either during preliminaryenquiry or during final enquiry and was not cited as a witness inannexure-III to the charge memo, it matters little because oral anddocumentary evidence on record as indicated above, particularly oralevidence of P.Ws 2 and 3 and Exs.A-5, A-9 and A-10 clearly and sufficiently proved that the petitioner received Rs.5,000/- fromLakshmana Rao on the assurance of securing job to his second son inJudicial department. We find that finding of guilt by the enquiry officerand that of the disciplinary authority and the appellate authority arebased on sufficient legal and valid evidence and that the said finding isneither perverse nor contrary to law.

14) Having regard to the above discussion of legal and factualmatrices of the case, we are of the opinion that the petitioner could notmake out any error on face of the record warranting interference by thisCourt under Article 226 of the Constitution of India. We are of thefurther opinion that quantum of punishment awarded by thedisciplinary authority is also commensurate with gravity of the charge. The petitioner who was working in Judicial department had exploitedhis position as such and tried to make out illegal money on falsepromises and cheating by assuring that he would secure job in hisdepartment. Persons like the petitioner may not deserve continuationto work in the Judicial department. In fact, the disciplinary authority didnot either dismiss or terminate the petitioner from his service, but wasconsiderate enough in compulsorily retiring him from service, whichact will enable the petitioner to have all his retirement benefits.

15) In the result, the Writ Petition is dismissed. No costs.

_________________

A.GOPAL REDDY, J

December , 2009Note: L.R copy to be marked. (b/o)KSH

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SAMUDRALA GOVINDARAJULU, J

[1](2000)6 Supreme Court Cases 562

[2]AIR 1974 SUPREME COURT 259[3]AIR 1963 Supreme Court 1723[3]AIR 1963 Supreme Court 1723

[4]AIR 1964 Supreme Court 364AIR 1964 Supreme Court 364

[5]AIR 1965 Supreme Court 1103

[6]AIR 1969 Supreme Court 983

[7](1978)3 Supreme Court Cases 366(1978)3 Supreme Court Cases 366

[8](1975)1 Supreme Court Cases 574(1975)1 Supreme Court Cases 574

[9](1988)3 Supreme Court Cases 370(1988)3 Supreme Court Cases 370

[10](1999)2 Supreme Court Cases 10(1999)2 Supreme Court Cases 10

[11](1999)5 Supreme Court Cases 762(1999)5 Supreme Court Cases 762

[12](2002)7 Supreme Court Cases 142(2002)7 Supreme Court Cases 142

[13](2003)3 Supreme Court Cases 583(2003)3 Supreme Court Cases 583

[14]AIR 1977 SUPREME COURT 1512

[15]AIR 1982 SUPREME COURT 673

[16]1999(7) SUPREME 6121999(7) SUPREME 612

[17](1999)8 Supreme Court Cases 582(1999)8 Supreme Court Cases 582