WP/22309/1999 of Syed Anwar Saleem Vs The Registrar (Vigillance Cell), on 30 December 2005

:: ORDER ::

Counsel for the Petitioner: Sri V. Venkata Ramana Counsel for Respondent No.1 : Sri C.V. Nagarjuna Reddy Counsel for Respondent No.2 : G.P. for Home December 30, 2005

Per G.S. Singhvi, CJ

In this petition, the petitioner has prayed for quashing G.O.Ms.No.48, Law (L.A. & J—Cts.C) Department dated 25-4-1996 vide which he was dismissed from service. He has further prayed forquashing communication No. RoC. 40/ 94/Vigilence Cell dated 21-1-1998 videwhich he was informed about rejection of the appeal filed by him against the order ofdismissal.

The petitioner joined service of the High Court of Andhra Pradesh (hereinafterreferred to as ‘the High Court’) as Lower Division Clerk on 15-8-1970. In the courseof service he was promoted on various posts in the clerical cadre. In 1986, he wastemporarily promoted as Munsif Magistrate. While he was posted as MunsifMagistrate, Kollapur, the members of the Bar made complaint casting aspersion onhis integrity and conduct. On receipt of the complaint, the High Court got a discreetenquiry made through District Judge, Mahabubnagar, who submitted report dated10-2-1994 with the finding that allegations enumerated in the complaint were primafacie correct. After considering the preliminary enquiry report, the High Court vide itsorder dated 15-3-1994 placed the petitioner under suspension. Simultaneously, aregular departmental enquiry was initiated against him under Andhra Pradesh CivilServices (Classification, Control and Appeal) Rules, 1963 (for short ‘the Rules’) andAdditional District Judge, Kurnool was appointed as enquiry officer. The following charges were framed against the petitioner:

“CHARGE NO.1:

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur,during a period of nine months, indulged in corruption by collecting minimumamount of Rs.200/- by way of illegal gratification for granting bails andcollecting money for release of the case property in criminal cases andopenly demanding huge amounts as bribe for disposal of civil suits andcriminal cases and contacting private parties in his chambers and collectingamounts from them by way of illegal gratification and thereby rendering hisintegrity doubtful and such a conduct of the above Magistrate is unbecomingof a judicial officer and are thereby guilty of grave misconduct incontravention of R.3 of Andhra Pradesh Civil Services Conduct Rules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur inthe course of his corrupt practices intentionally withheld confiscation of 13cycles, which were the unclaimed case property produced by the KollapurPolice in S.T.C.30/93 on 24-12-1993 though he ordered confiscation of thecash of Rs.170/- and 7 cocks, which were later auctioned and that on 27-12-1993, he ordered return of the 13 cycles to the petitioners, who filed petitionsthrough Sri V. Upender, Advocate without any proof of ownership of thecycles by them and he ordered the return of the said cycles in spite of cautiongiven to the contra by Sri C.H. Suryanarayana Murthy, Deputy Nazir of theCourt and that he released the said cycles by taking bribes from theconcerned petitioners and the said action besides amounting to gravemisconduct is also a serious material irregularity committed by him inviolation of the procedure sanctioned by law and thus the officer is guilty ofgrave misconduct and material irregularity in discharge of his official dutywhich is unbecoming of a judicial officer in contravention of R.3 of A.P. CivilServices Conduct Rules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapurperformed the marriage of his daughter at Hyderabad and for the saidmarriage, he took the clothes from the shop of Sri V. Upender, Advocate andother padmasali persons of Pentlavalli village, Kollapur Mandal, by way ofillegal gratification and is thus guilty of grave misconduct unbecoming of ajudicial officer in contravention of Rule-3 of Andhra Pradesh Civil ServicesConduct Rules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur,sought to justify his corrupt practices by openly telling in a brazen manner thatHigh Court Judges themselves were taking bribes and there was no wrong if he took bribes and further boasting that the Hon’ble Sri Justice Syed ShahMohammed Quadri, Judge of the High Court of A.P. is closely related to himand is his god-father and so, nobody can do any harm to him and indulging insuch a talk amounts to misconduct on his part, unbecoming of a judicialofficer in contravention of Rule-3 of Andhra Pradesh Civil Services ConductRules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur,used to close the prosecution evidence without examining the materialwitnesses whenever approached by the concerned parties, resulting in theiracquittal and such a premature closure of the prosecution leading tomiscarriage of justice for extraneous considerations amounts to misconducton his part unbecoming of a judicial officer in contravention of Rule-3 ofAndhra Pradesh Civil Services Conduct Rules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur,was staying in the Court Chambers during the entire tenure, but claimedhouse rent allowance without actually taking any house on rent and suchillegal drawal of house rent allowance contrary to the rules amounts tomisconduct on his part unbecoming of a judicial officer in contravention ofRule-3 of Andhra Pradesh Civil Services Conduct Rules, 1964.

That Sri Syed Anwar Saleem, while working as Munsif Magistrate, Kollapur,used to go to Hyderabad on every Saturday by 1 p.m. and return toheadquarters on Monday at 12 Noon without permission from the superiors,which amounts to misconduct, unbecoming of a judicial officer incontravention of Rule-3 of Andhra Pradesh Civil Services Conduct Rules,1964.”

The department examined 17 witnesses and produced 51 documents to prove thecharges. The petitioner appeared as a witness in support of his defence andproduced 18 documents. The enquiry officer submitted report dated 30-10-1995 with the conclusion that the charges No.4, 6 and 7 have been provedagainst the petitioner and the remaining charges have not been proved. A copy ofthe enquiry report was furnished to the petitioner so as to enable him to makerepresentation against the findings and conclusions recorded by the enquiry officer.The petitioner submitted representation dated 21-12-1995, wherein he controvertedthe findings recorded by the enquiry officer in respect of charges No.4, 6 and 7. The High Court did not accept the representation of the petitioner and recommended tothe government that he be dismissed from service. Accordingly, proposal wasforwarded to the State Government, which passed order dated 27-4-1996 dismissingthe petitioner from service. Revision filed by the petitioner under Rule 21 (1) and (2)of the Rules, which was erroneously described as appeal and was dealt with assuch, was dismissed by the Governor. This was conveyed to him vide letter dated 21-1-1998.

The petitioner has challenged the order of dismissal as also rejection of his revisionon the following grounds:

a. The findings recorded by the enquiry officer in respect of charges No.4,6 and 7 which were accepted by the High Court on administrativeside are based on no evidence and, therefore, the order ofpunishment is liable to be declared as vitiated by an error of law.6 and 7 which were accepted by the High Court on administrativeside are based on no evidence and, therefore, the order ofpunishment is liable to be declared as vitiated by an error of law.

b. The allegations levelled in the complaint made by the advocates weremotivated and the same should not have been acted upon by theHigh Court for initiation of departmental inquiry.motivated and the same should not have been acted upon by theHigh Court for initiation of departmental inquiry.

c. Charge No.7 was vague to the core and, in any case, he could not havebeen punished for leaving the headquarter because he used toobtain permission for doing so from District Judge, Mahabubnagar.been punished for leaving the headquarter because he used toobtain permission for doing so from District Judge, Mahabubnagar.

In the counter filed on behalf of respondent No.1 it has been averred that thepetitioner was dismissed from service because he was found guilty of gravemisconduct. It has been further averred that the departmental inquiry was heldagainst the petitioner strictly in accordance with the rules and the principles ofnatural justice and the findings recorded by the enquiry officer in respect of chargesNo.4, 6 and 7 are based on cogent evidence produced during the enquiry.

Sri V. Venkata Ramana argued that the findings recorded by the enquiryofficer on Charges No.4, 6 and 7 are not based on correct appreciation of evidenceand the High Court committed a grave illegality by accepting the same and makingrecommendation to the State Government for the petitioner’s dismissal from service.Learned counsel emphasized that the bald statements made by some advocatesthat the petitioner had openly claimed his association with a Judge of the High Courtand that there was nothing wrong in accepting bribe by the members of thesubordinate judiciary because Judges of the High Court were also accepting bribe

could not be made basis for recording a finding against him more so when nocorroborative evidence was produced by the department to substantiate the charge.He then argued that the finding recorded on the charge of the petitioner taking rentwhile living in the Chamber is based on a misreading of evidence and should havebeen ignored by the High Court. In regard to Charge No.7, learned counsel arguedthat the finding of the enquiry officer is based on surmises and conjectures and, inany case, the petitioner could not be held guilty because he used to leave theheadquarters after obtaining permission from District Judge, Mahaboobnagar. In theend, Sri Venkata Ramana argued that even if the Court is not inclined to interferewith the findings recorded by the enquiry officer in respect of three charges, thepunishment of dismissal should be substituted with a lesser penalty by invoking thedoctrine of proportionality. Learned counsel submitted that the extreme penalty ofdismissal from service was not at all warranted because the petitioner had not beenfound guilty of financial misdemeanor. He further submitted that the High Court andthe State Government should have taken into consideration the fact that as on thedate of punishment, the petitioner had completed 30 years service without anyblemish and a less severe penalty like compulsory retirement would have met theends of justice.

Sri C.V. Nagarjuna Reddy, counsel for the High Court and the learnedGovernment Pleader defended the decision of the respondents to dismiss thepetitioner from service and argued that in exercise of power vested in it under Article226 of the Constitution of India, the Court cannot interfere with the findings recordedby the enquiry officer and the discretion exercised by the employer in the matter ofimposition of penalty. Sri Reddy took us through the findings recorded by the enquiryofficer to show that all the three charges were found proved on the basis of evidenceproduced by the department. He submitted that the petitioner has not been able tosubstantiate the suggestive allegations of ulterior motive on the part of the advocatesand, therefore, this Court should not upset the well reasoned findings recorded bythe enquiry officer. Sri Reddy emphasized that the High Court does not exerciseappellate jurisdiction in such matters, and, therefore, there is no warrant forinterference with the punishment imposed on the petitioner who has been foundguilty of grave misconduct.

Conclusion

to the questions whether the findings recorded by the enquiry officer in respect ofCharges No.4, 6 and 7 are based on no evidence and the order of punishment isliable to be declared as vitiated as an error of law and, whether the punishment ofdismissal imposed on the petitioner is wholly disproportionate to the misconductfound proved or is totally arbitrary, unreasonable and unconscionable, we deem itproper to remind ourselves of the limited scope of the High Court’s power of judicialreview in such matters. The prayer made by the petitioner in the writ petition isessentially for issuance of a writ of certiorari. The parameters for exercise of the HighCourt’s power to issue a writ of certiorari are well defined. Such writ, order ordirection can be issued for correcting errors of jurisdiction committed by inferiorcourts or tribunals or quasi-judicial authorities. A writ can also be issued where inexercise of jurisdiction conferred on it, the Court or the Tribunal or quasi-judicialauthority acts illegally or improperly, i.e., it decides a question without giving anopportunity of hearing to the party affected by the order or where the procedureadopted by it is opposed to the principles of natural justice. However, it must beremembered that the jurisdiction of the High Court to issue a writ of certiorari issupervisory in nature and not appellate one. This necessarily means that the findingof fact reached by the inferior Court, Tribunal, etc., as a result of the appreciation ofevidence, cannot be reopened or questioned in writ proceedings except when thejudgment, order or award suffers from an error of law apparent on the face of therecord. An error of law is one which can be discovered on a bare reading of thejudgment, order or award under challenge along with the documents which havebeen relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error,the discovery of which is possible only after a detailed scrutiny of the evidenceproduced by the parties and lengthy debate at the bar cannot be regarded as anerror of law for the purpose of a writ of certiorari. A finding of fact recorded by aninferior Court or Tribunal or quasi-judicial authority can be corrected only if it isshown that in recording the said finding, the Court etc., had erroneously admittedinadmissible evidence and the same has influenced the impugned finding. Similarly,a finding of fact based on no evidence would be regarded as error of law which canbe corrected by issuing a writ of certiorari. However, sufficiency or adequacy of theevidence relied upon by the inferior Court or Tribunal or quasi-judicial authoritycannot be gone into by the High Court while considering the prayer for issue of a writof certiorari. Likewise, mere possibility of forming a different opinion on re-appreciation of evidence produced by the parties is not sufficient for issue of a writ of certiorari.

In Syed Yakoob v. K.S. Radhakrishnan and others the Constitution Benchof the Supreme Court considered the scope of the High Court’s power to issue thewrit of certiorari and laid down the following propositions:

“A writ of certiorari can be issued for correcting errors of jurisdictioncommitted by inferior courts or tribunals: these are cases where orders arepassed by inferior courts or tribunals without jurisdiction, or is in excess of it,or as a result of failure to exercise jurisdiction. A writ can similarly be issuedwhere in exercise of jurisdiction conferred on it, the Court or Tribunal actsillegally or improperly, as for instance, it decides a question without giving anopportunity to be heard to the party affected by the order, or where theprocedure adopted in dealing with the dispute is opposed to principles ofnatural justice.

The jurisdiction to issue a writ of certiorari is a supervisory jurisdictionand the Court exercising it is not entitled to act as an appellate Court. Thislimitation necessarily means that findings of fact reached by the inferior Courtor Tribunal as result of the appreciation of evidence cannot be reopened orquestioned in writ proceedings. An error of law which is apparent on the faceof the record can be corrected by a writ, but not an error of fact, however graveit may appear to be. In regard to a finding of fact recorded by the Tribunal, awrit of certiorari can be issued if it is shown that in recording the said finding,the Tribunal had erroneously refused to admit admissible and materialevidence, or had erroneously admitted inadmissible evidence which hasinfluenced the impugned finding. Similarly, if a finding of fact is based on noevidence, that would be regarded as an error of law which can be correctedby a writ of certiorari.

A finding of fact recorded by the Tribunal cannot, however, bechallenged in proceedings for a writ of certiorari on the ground that therelevant and material evidence adduced before the Tribunal was insufficientor inadequate to sustain the impugned finding. The adequacy or sufficiency ofevidence led on a point and the inference of fact to be drawn from the saidfinding are within the exclusive jurisdiction of the Tribunal, and the said pointscannot be agitated before a writ Court.”

In Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab andothers their Lordships of the Supreme Court, while dealing with the scope of HighCourt’s power under Article 226 to re-appreciate the evidence produced before thetrial Judge, held as under:

“Where the evidence adduced before the trial Judge was not so immaculate that another Judge might not have taken a different view, it cannot be saidthat there was no evidence on which the trial Judge could have come to theconclusion he did. When the trial Court accepts the evidence, the High Courtwhich is not hearing an appeal cannot be expected to take a different view inexercising jurisdiction under Articles 226 and 227.”

In R.S. Saini v. State of Punjab and others the Supreme Court upheld theorder passed by the High Court dismissing the writ petition filed against the order ofthe petitioner’s removal from the office of the President of Municipal Committee.Some of the observations made in that decision, which are worth noticing read asunder:

“The court while exercising writ jurisdiction will not reverse a finding of theinquiring authority on the ground that the evidence adduced before it isinsufficient. If there is some evidence to reasonably support the conclusion ofthe inquiring authority, it is not the function of the court to review the evidenceand to arrive at its own independent finding. The inquiring authority is the solejudge of the fact so long as there is some legal evidence to substantiate thefinding and the adequacy or reliability of the evidence is not a matter whichcan be permitted to be canvassed before the court in writ proceedings.”

The proposition laid down in Sayed Yakoob[1 ](supra) has been reiterated ina recent judgment in Mohd. Shahnawaz Akhtar & Anr. v. Ist ADJ Varanasi & ors.

We may now notice some decisions which have bearing on the High Court’spower to interfere with the disciplinary proceedings and the order of punishment. InState of Orissa v. Bidyabhushan Mohapatra, the Supreme Court consideredwhether the High Court can interfere with the order of punishment simply becausefinding recorded by the enquiry officer in respect of some charges is found to bevitiated by an error of law and whether it can go into the sufficiency and adequacy ofpunishment. While reversing the order of Orissa High Court, which had allowed thewrit petition filed by the respondent, their Lordships of the Supreme Court observed:

“But the Court in a case in which an order of dismissal of a public servantis impugned is not concerned to decide whether the sentence imposed,provided it is justified by the rules, is appropriate having regard to the gravityof the misdemeanour established. The reasons which induce the punishingauthority, if there has been an inquiry consistent with the prescribed rules, arenot justiciable: nor is the penalty open to review by the Court. If the HighCourt is satisfied that if some but not all of the findings of the Tribunal were ‘unassailable’, the order of the Governor on whose powers by the rules norestrictions in determining the appropriate punishment are placed, was final,and the High Court had no jurisdiction to direct the Governor to review thepenalty for as we have already observed the order of dismissal passed by acompetent authority on a public servant, if the conditions of the constitutionalprotection have been complied with, is not justiciable. Therefore if the ordermay be supported on any finding as to substantial misdemeanour for whichthe punishment can lawfully be imposed, it is not for the Court to considerwhether that ground alone would have weighed with the authority indismissing the public servant. The Court has no jurisdiction if the findings ofthe inquiry officer or the Tribunal prima facie make out a case ofmisdemeanour, to direct the authority to reconsider that order because inrespect of some of the findings but not all it appears that there had beenviolation of the rules of natural justice.”

In State of A.P. v. Sree Rama Rao the Supreme Court indirectly reiteratedthe proposition laid down in Bidyabhushan Mohapatra[5] (supra) and held:

“The High Court is not constituted in a proceeding under Article 226 of theConstitution a court of appeal over the decision of the authorities holding adepartmental inquiry against a public servant; it is concerned to determinewhether the inquiry is held by an authority competent in that behalf, andaccording to the procedure prescribed in that behalf, and whether the rules ofnatural justice are not violated. Where there is some evidence, which theauthority entrusted with the duty to hold the inquiry has accepted and whichevidence may reasonably support the conclusion that the delinquent officer isguilty of the charge, it is not the function of the High Court in a petition for awrit under Article 226 to review the evidence and to arrive at an independentfinding on the evidence. The High Court may undoubtedly interfere where thedepartmental authorities have held the proceedings against the delinquent ina manner inconsistent with the rules of natural justice or in violation of thestatutory rules prescribing the mode of inquiry or where the authorities havedisabled themselves from reaching a fair decision by some considerationsextraneous to the evidence and the merits of the case or by allowingthemselves to be influenced by irrelevant considerations or where theconclusion on the very face of it is so wholly arbitrary and capricious that noreasonable person could ever have arrived at that conclusion, or on similargrounds. But the departmental authorities are, if the inquiry is otherwiseproperly held, the sole judges of facts and if there be some legal evidence onwhich the findings can be based, the adequacy or reliability of that evidenceis not a matter which can be permitted to be canvassed before the High Courtin a proceeding ... under Article 226 of the Constitution.”

In Rly. Board v. Niranjan Singh the principle laid down in BidyabhushanMohapatra[5] (supra) was reiterated. In State of Madras v. G. Sundaram theConstitution Bench of the Supreme Court laid down the following proposition:

“High Court, in the exercise of its jurisdiction under Article 226 of theConstitution, cannot sit in appeal over the findings of fact recorded by acompetent Tribunal in a properly conducted departmental enquiry exceptwhen it be shown that the impugned findings were not supported by anyevidence. It cannot consider adequacy of that evidence to sustain thecharge.”

In State of A.P. v. C. Venkata Rao a three Judges Bench of the SupremeCourt referred to the judgments of Syed Yakoob[1 ](supra), BidyabhushanMohapatra[5 ](supra), Niranjan Singh[7](supra) and observed:

“In considering whether a public officer is guilty of misconduct chargedagainst him, the rule followed in criminal trials that an offence is notestablished unless proved by evidence beyond reasonable doubt to thesatisfaction of the Court need not be applied. Even if that rule is not appliedby a domestic tribunal in any inquiry the High Court in a petition under Article226 of the Constitution is not competent to declare the order of the authoritiesholding a departmental enquiry invalid. The High Court is not a court ofappeal under Article 226 over the decision of the authorities holding adepartmental enquiry against a public servant. The Court is concerned todetermine whether the enquiry is held by an authority competent in that behalfand according to the procedure prescribed in that behalf, and whether therules of natural justice are not violated. Where there is some evidence whichthe authority entrusted with the duty to hold the enquiry has accepted andwhich evidence may reasonably support the conclusion that the delinquentofficer is guilty of the charge, it is not the function of the High Court to reviewthe evidence and to arrive at an independent finding on the evidence. Anerror of law which is apparent on the face of the record can be corrected by awrit, but not an error of fact, however grave it may appear to be. A finding offact recorded by the Tribunal cannot be challenged on the ground that therelevant and material evidence adduced before the Tribunal is insufficient orinadequate to sustain a finding. The adequacy or sufficiency of evidence ledon a point and the inference of fact to be drawn from the said finding arewithin the exclusive jurisdiction of the Tribunal.”

In B.C. Chaturvedi v. Union of India the Supreme Court, while consideringthe appellant’s challenge to the order of punishment passed as a sequel to thedepartmental enquiry held against him, highlighted the limited scope of judicial review by making the following observations:

“Judicial review is not an appeal from a decision but a review of themanner in which the decision is made. Power of judicial review is meant toensure that the individual receives fair treatment and not to ensure that theconclusion which the authority reaches is necessarily correct in the eye of thecourt. When an inquiry is conducted on charges of misconduct by a publicservant, the Court/Tribunal is concerned to determine whether the inquiry washeld by a competent officer or whether rules of natural justice are compliedwith. Whether the findings or conclusions are based on some evidence, theauthority entrusted with the power to hold inquiry has jurisdiction, power andauthority to reach a finding of fact or conclusion. But that finding must bebased on some evidence. Neither the technical rules of Evidence Act nor ofproof of fact or evidence as defined therein, apply to disciplinary proceeding.Adequacy of evidence or reliability of evidence cannot be permitted to becanvassed before the Court/Tribunal. When the authority accepts thatevidence and conclusion receives support therefrom, the disciplinaryauthority is entitled to hold that the delinquent officer is guilty of the charge.The disciplinary authority is the sole judge of facts. Where appeal ispresented, the appellate authority has coextensive power to re-appreciate theevidence or the nature of punishment. The Court/Tribunal in its power ofjudicial review does not act as appellate authority to reappreciate theevidence and to arrive at its own independent findings on the evidence. TheCourt/Tribunal may interfere where the authority held the proceedings againstthe delinquent officer in a manner inconsistent with the rules of natural justiceor in violation of statutory rules prescribing the mode of inquiry or where theconclusion or finding reached by the disciplinary authority is based on noevidence. If the conclusion or finding be such as no reasonable person wouldhave ever reached, the Court/Tribunal may interfere with the conclusion orthe finding, and mould the relief so as to make it appropriate to the facts ofthat case.

In Apparel Export Promotion Council v. A.K. Chopra the Supreme Courtagain considered the High Court’s power to interfere with the disciplinaryproceedings and held:

“It is a settled position that in departmental proceedings, the disciplinaryauthority is the sole judge of facts and in case an appeal is presented to theappellate authority, the appellate authority has also the power/and jurisdiction toreappreciate the evidence and come to its own conclusion, on facts, being thesole fact-finding authorities. Once findings of fact, based on appreciation ofevidence are recorded, the High Court in writ jurisdiction may not normallyinterfere with those factual findings unless it finds that the recorded findings werebased either on no evidence or that the findings were wholly perverse and/orlegally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as anappellate authority over the factual findings recorded during departmentalproceedings, while exercising the power of judicial review, the High Courtcannot, normally speaking, substitute its own conclusion, with regard to the guiltof the delinquent, for that of the departmental authorities. Even insofar asimposition of penalty or punishment is concerned, unless the punishment orpenalty imposed by the disciplinary or the departmental appellate authority, iseither impermissible or such that it shocks the conscience of the High Court, itshould not normally substitute its own opinion and impose some otherpunishment or penalty.

Further, it is a well-settled principle that even though judicial review ofadministrative action must remain flexible and its dimension not closed, yet thecourt, in exercise of the power of judicial review, is not concerned with thecorrectness of the findings of fact on the basis of which the orders are made solong as those findings are reasonably supported by evidence and have beenarrived at through proceedings which cannot be faulted with for proceduralillegalities or irregularities which vitiate the process by which the decision wasarrived at. Judicial review, it must be remembered, is directed not against thedecision, but is confined to the examination of the decision-making process.

Judicial review, not being an appeal from a decision, but a review of themanner in which the decision was arrived at, the court, while exercising thepower of judicial review, must remain conscious of the fact that if the decisionhas been arrived at by the administrative authority after following the principlesestablished by law and the rules of natural justice and the individual hasreceived a fair treatment to meet the case against him, the court cannot substituteits judgment for that of the administrative authority on a matter which fell squarelywithin the sphere of jurisdiction of that authority.

In the above backdrop, we shall now consider whether the findings recordedby the enquiry officer in respect of Charges No.4, 6 and 7 levelled against thepetitioner are based on correct appreciation of evidence or the same are vitiated byan error of law apparent on the face of the record.

Charge No.4:

This charge consists of two parts. It is alleged that the petitioner tried to justifyhis alleged corrupt practices by openly telling in a brazen manner that the HighCourt Judges themselves would be taking bribes. He also claimed that he wasclosely related to one of the Judges of the High Court of Andhra Pradesh andnobody can do any harm to him. During the preliminary enquiry, P.Ws.1 to 5, all of whom are advocates practicing in Kollapur, testified that the petitioner used to justifyhis corrupt practices by saying that the High Court Judges were themselves takingbribe and nobody can harm him because Hon’ble Justice Sri Syed ShahMohammed Quadri was his godfather. In the regular enquiry, P.Ws.1 to 5 reiteratedthe statements made by them in the preliminary enquiry. P.W.2 happens to beseniormost member of the bar at Kollapur having a standing of over 50 years. Theenquiry officer accepted the testimony of the advocates by observing that there wasno reason why these persons would depose against the petitioner and concludedthat even though the charge of corrupt practices levelled against the petitioner hasnot been proved, his attempt to justify the corrupt practice of the judicial officers bysaying that the High Court Judges were themselves taking bribe and that nobodycan touch him because one of the judges of the High Court was his godfathertantamounts to unbecoming of a judicial officer within the contemplation of Rule 3 ofA.P. Civil Services Conduct Rules, 1964. Paragraph 44 of the enquiry report whichcontains detailed analysis of evidence and the conclusion of the enquiry officer readas under:

“44. In the evidence P.W.1 testified that on one day after the court work is overwhen himself and several advocates met the officer in the Chambers on hisinvitation, he told them in the course of conversation that some of the HighCourt judges are corrupt and at that time the charged officer also told thatHon’ble Justice Sri Syed Shah Mohammed Quadri is his relative and god-father and that nobody can do any harm to him. In the cross-examinationP.W.1 asserted that the charged officer commented about the High CourtJudges in his presence and in the presence of other advocates. He alsoasserted that the charged officer adversely commented in a lighter vein aboutthe High Court Judges from the Bench also two or three times in his presenceand stated about his relationship to the Hon’ble Justice Sri Syed ShahMohammed Quadri several times in his presence. P.W.2 the seniormostadvocate of Kollapur having over 50 years standing at the Bar also testifiedthat the charged officer has commented in the presence of himself and otheradvocates that even High Court Judges are taking bribes and there was nowrong if he took the bribe and this comment by him was in the course ofcasual talk in the court premises. He further deposed that the charged officerstated in his presence that he is related to Hon’ble Justice Sri Syed ShahMohammed Quadri. P.Ws.3 to 5 have also testified to the same effect that thecharged officer in the course of his conversation before the advocates used tocomment adversely against the Hon’ble Judges of the High Court anddisclose that he was closely related to Hon’ble Justice Sri Syed ShahMohammed Quadri and so no harm would be done to him. Their evidence onthis aspect is not shaken in the cross-examination. They have testified on thisaspect from their personal knowledge and perception as they heard it from the charged officer himself. It is not based on hearsay. The fact that the otheradvocates have kept silent over this aspect of loose talk on the part ofcharged officer is no solace to him because the conduct of indulging in anysuch loose and irresponsible talk even to the hearing of one person isreprehensible. There is absolutely no reason as to why the senior advocatesP.Ws.1 to 5 should make a false accusation of this sort against the chargedofficer. It is to be noted that even in respect of grave charges pertaining to thealleged corrupt practices, the above witnesses did not claim any personalknowledge, but they assert that the charged officer indulged in such looseand reckless talk in their presence and to their hearing in the course ofconversation with them. The fact that the date or time as to when the saidconversation took place is not disclosed in Exs.P.1 and P.2 or in theirevidence is not of much consequence because they cannot be expected tomaintain a record of timings of casual or informal conversations. The fact thatthe charges pertaining to the alleged corrupt practices on the part of thecharged officer could not be established does not also make any differenceand it cannot be contended that because those charges were not provedthere was no need or occasion for the charged officer to attempt to justify hisconduct by trying to project the Hon’ble Judges of the High Court in bad lightwith adverse comments. The thrust of the charges is whether or not thecharged officer indulged in any such loose talk. The evidence on recordsufficiently establishes that the charged officer has more than once indulgedin such reckless and irresponsible talk in the course of his conversation withthe members of the Bar and it certainly amounts to misconduct on his partunbecoming of a judicial officer and in contravention of Rule 3 of CivilServices Conduct Rules, 1964. In these circumstances it is held that thecharge No.4 is proved against the charged officer.

Charge No.6:

Charge No.6:

The allegation against the petitioner was that while he used to stay in thechamber of the Court during his tenure as Munsif Magistrate, Kollapur, the petitionerdrew house rent allowance. In the preliminary enquiry, 8 advocates of Kollapurtestified that the petitioner used to live in the chamber. P.W.13, who is Head Clerk ofthe Court proved that the petitioner had claimed house rent allowance for 9 months.In the regular enquiry, 6 advocates who appeared as P.Ws.1, 3, 5, 6, 8 and 11deposed in one voice that the charged officer used to reside in the court chamber,but P.Ws.9 and 10 resiled from their earlier statements. P.W.15 who was working asDeputy Nazir and P.W.16 who was working as Attender also testified that thepetitioner used to reside in the chamber. P.W.16 gave detailed version of theactivities of the petitioner while he was residing in the chamber. The petitioner triedto rebut the charge by stating that he had taken house on rent from Sri D. Srinivasa Rao, but could not prove the same and evidence of D.W.1

Sri D. Krishnadeva Rao who deposed that the petitioner was residing in his houseas a tenant was not accepted by the enquiry officer. The discussion made by theenquiry officer on this charge is found in para 32 to para 36 of the report. The sameare extracted below:

“32. In the evidence during this enquiry P.W.1 reiterated that the chargedofficer was staying in the Chambers and he has not taken any house on rentfor his residence during the entire period he worked. In the cross-examinationit was suggested to P.W.1 that the charged officer was residing in a rentedhouse belonging to Sri D. Srinivas Rao and he never resided in theChambers. P.W.1 denied the suggestion and stated that he knows the houseof Srinivas Rao which is 400 or 500 yards from the court building and that the charged officerwas getting food from outside to the chambers and was sleeping on the bigoffice table in the Chambers. P.W.2 senior advocate having over 50 years ofstanding at Kollapur bar deposed that the charged officer was residing in theChambers itself without taking any house on rent in the town during his entiretenure. The other advocate witnesses P.W.3, P.W.5, P.W.6, P.W.8, P.W.11have all testified in one voice that the charged officer was residing in the courtchambers only and he has not taken any house on rent at Kollapur during hisentire tenure. P.W.9 and P.W.10 tried to resile away from their earlierstatements Exs.P.13 and P.14 given before P.W.17 by deposing that thecontents of the said statements are true and correct except that the Magistratewas living in the Chambers and he has not taken any house on rent. P.W.17stated that P.W.9 and P.W.10 have stated as contained in Exs.P.13 and P.14.Even according to P.W.9 and P.W.10 the other contents of their previousstatements Exs.P.13 and P.14 are true and correct. It is highly improbableand hard to believe that P.W.17 the District Judge and a responsible officerwould have recorded the said averments in Exs.P.13 and P.14 without P.W.9and P.W.10 actually stating the same. There is absolutely no reason as towhy P.W.17 should record something which was not stated by the witnesses.P.W.9 and P.W.10 being advocates are literate persons and they cannot beexpected to have signed Exs.P.13 and P.14 sworn statements withoutreading their contents. It is obvious that having stated before P.W.17 that thecharged officer was staying in the Chambers only without taking any houseon rent, the two witnesses are now trying to resile away from their earlierstatements Exs.P.13 and P.14 probably to accommodate the charged officer.Thus, all the advocate witnesses have stated both during the preliminaryenquiry and also regular enquiry that the charged officer was residing in thecourt Chambers and he has not taken any house on rent, but still he wasclaiming H.R.A. Kollapur being a small town and the advocates being theresidents of the place, can be expected to know as to where the chargedofficer was residing. Their evidence that the charged officer was residing in

the court Chambers and he has not taken any house on rent cannot thereforebe brushed aside.

33. P.W.13 the Head Clerk of the court has curiously testified that he does notknow where the charged officer was residing. It is hard to believe that theHead Clerk would not be knowing as to where his officer was residingespecially at a small place like Kollapur. He vaguely says that he heardthrough the Attenders that the charged officer was residing in the house of SriD. Srinivas Rao. He however admitted that he has not seen the chargedofficer at any time in the house of Sri D. Srinivas Rao and he does not knowhow much rent the charged officer was paying and the charged officer has notfurnished any rent receipts to the office for the purpose of record. According tohim, the charged officer was taking lunch in the Chambers, but he curiouslysays that he does not know where he was sleeping during night time. If reallythe charged officer has taken the house of Sri D. Srinivas Rao on rent, thereis no need for P.W.13 to disclaim the knowledge as to where the chargedofficer was sleeping during night time. A vain attempt to accommodate thecharged officer to the extent possible is clearly discernible from the evidenceof P.W.13. P.W.13 admitted that the residence of the officer was not notified tothe District Court.

34. P.W.15 the Deputy Nazar also deposed that the charged officer wasresiding in the Chambers of the court and he has not taken any house on rent.It is also in his evidence that he was allotting duties to the Attenders and outof 5 Attenders, two were on guard duty and three were allotted to the officerfor working in the court and at the place of his residence. He further testifiedthat as the officer was residing in the Chambers no Attender was bringing theoffice box from any rented premises to the court and back and all theAttenders were doing the duty in the court compound only. P.W.15 being theDeputy Nazar incharge of allotment of work to the Attenders is thus acompetent witness to testify as to the nature and place of the work of theAttenders and his evidence goes to show that the charged officer wasresiding only in the Chambers and so there was no occasion for any Attenderto carry the office box from the court to any rented premises and back and allthe Attenders were doing duty in the court compound only.

35. P.W.16 one of the Attenders who worked under the charged officer alsotestified that the charged officer was residing in the Chambers during hisentire tenure as he could not secure a house and among the three Attendersone was attending to the court hall duty and the other two were attending onthe officer by turns. It is also in his evidence that they were getting mealscarriers from the hotel to the Chambers for lunch and dinner and the chargedofficer was sleeping inside the Chambers. He further deposed that as thecharged officer did not take up any house for his residence the office boxremained in the Chambers and the charged officer used to give dictation tothe Steno in the Chambers. In the cross-examination P.W.16 denied the

suggestion that the charged officer was residing in the house of D. SrinivasRao. He further denied the suggestion that he was deposing falsely becausethe charged officer called for the explanation by giving a memo. There isnothing to show that any such memo was given by the charged officer toP.W.16 calling for his explanation for any dereliction of duty. The said aspectis not suggested to P.W.13 and P.W.15. In the cross-examination P.W.16asserted that the charged officer was taking bath in the bathroom attached tothe Chambers and was residing in the Chambers and sleeping on the officetable. In the re-examination he stated that the office table in the Chambersmeasures 4 mooras x 3 mooras (i.e., 6’ x 3½’). P.W.16 one of the Attenderswho actually attended on the charged officer is a competent witness to testifyas to where the charged officer was residing and his evidence clearly showsthat the charged officer has not taken any house on rent and he was residingin the court chambers only through out his tenure. P.W.17 deposed that thecharged officer has not obtained any permission from him to stay in theChambers and his enquiry revealed that the charged officer was residing inthe Chambers itself during his entire tenure and claimed full H.R.A. asrevealed from the pay bill register and acquittance register and he neverinformed the District Court that he has taken a private residence in the houseof one D. Srinivas Rao of Kollapur.

36. In support of his plea that he has taken a private house on rent thecharged officer examined D.W.1 Sri D. Krishnadeva Rao who deposed thatthe charged officer was residing in his house as a tenant. It is not the plea ofthe charged officer at any time that he was tenant in the house of D.W.1. Inthe cross-examination of P.W.1 and other witnesses it was suggested that thecharged officer has been residing in the house of one D. Srinivas Rao. Ofcourse D.W.1 stated that Sri D. Srinivas Rao is his senior paternal uncle, butthe plea of the charged officer that he has been tenant in the house of Sri D.Srinivas Rao is inconsistent with the evidence of D.W.1 that the chargedofficer was his tenant. According to D.W.1 the charged officer was paying rentof Rs.200/- p.m. and D.W.1 passed the receipts Exs.D.1 to D.9. It wasnowhere pleaded by the charged officer either in his written statement or byway of suggestions to the witnesses that he was paying rent of Rs.200/- p.m.and obtaining receipts. If the receipts Exs.D.1 to D.9 which were filed by thecharged officer on 17-6-1995 were genuine he could have referred to theirexistence in his written statement filed on 12-10-1994 and he could have filedthe receipts along with the original written statement. In the cross-examinationD.W.1 stated that except Exs.D.1 to D.9 there is no other record to show thatcharged officer paid him rent of Rs.200/- p.m. and there is no rentalagreement or any other document of tenancy between him and the chargedofficer. D.W.1 is admittedly a resident of Hyderabad and he admitted that hewas not residing at Kollapur during the period from May, 1993 to January1994. He claims that he used to collect the rents personally during his trips toKollapur. He is an employee in the Allwyns at Hyderabad. He admits thatthere will not be any record in his company to show that he was at Kollapuron the respective dates of Exs.D.1 to D.9. The evidence of D.W.1 that the charged officer was his tenant on a rent of Rs.200/- p.m. and he wascollecting rents personally and passing the receipts Exs.D.1 to D.9 isinconsistent with the plea of the charged officer that he has been tenant in thehouse of Sri D. Srinivas Rao. No weight or credence can be given to thetestimony of D.W.1 or the receipts of Exs.D.1 to D.9 said to have been passedby him. There is no reference to D.W.1 or to Exs.D.1 to D.9 either in theoriginal written statement or in the additional written statement. The additionalwritten statement was filed on 17-6-1995 on which date Exs.D.1 to D.9receipts were filed along with a memo, but still there is no reference to D.W.1or the receipts Exs.D.1 to D.9 in the additional written statement. D.W.1 hasnot produced any document to show that he owns the house D.No.3-22-81 orany portion thereof. In the cross-examination he admitted that the said housestands in the name of his senior paternal uncle Sri D. Srinivas Rao and thereis no document to show that the house fell to his share, and there has beenno partition. When that is so, it cannot be said that the portion in the allegedoccupation of the charged officer fell to the share of D.W.1 or that it was let outby him and … the rents for the said portion is … is not examined. Theevidence of D.W.1 is not convincing. It is obvious that he has been pressedinto service along with Exs.D.1 to D.9 in a vain attempt to somehow get overthe adverse situation the charged officer found himself in on account ofalmost unanimous evidence from the advocate witnesses and staff membersthat the charged officer was residing in the Chambers of the court only andhas not taken any house on rent during his entire tenure. It is therefore clearfrom the evidence on record that the charged officer did not take the house ofSri D. Srinivas Rao or D.W.1 ion rent but he was residing only in the courtChambers during his entire tenure of about 9 months from May 1993 toJanuary 1994.”

The enquiry officer then referred to Circular RoC No.2568/95 C-Spl. (Con.) dated 11-7-1995 and held that unauthorized drawalof house rent allowance amounted to misconduct.

Charge No.7 levelled against the petitioner was that he used to leaveheadquarter and visit Hyderabad on every Saturday afternoon and would come backon Monday in the afternoon. The enquiry officer took cognizance of the fact that thepetitioner used to take permission from District Judge, Mahabubnagar for leavingheadquarters on every Saturday and held that this did not entitle him to leave theCourt before working hours and return after commencement of the working hours onMonday and concluded that the charge is proved. Paragraphs 40, 41 and 42 of theenquiry report give an idea of the reasoning adopted by the enquiry officer forholding the petitioner guilty of this charge. Therefore, the same are reproducedbelow:

“40. In the evidence during the regular enquiry, P.W.1 reiterated that thecharged officer was leaving for Hyderabad on every Saturday by bus at 1 p.m.and was returning on the next working day at about 12 .00 noon and as suchthe work of Saturdays and Mondays used to suffer. P.W.2 a senior advocatehaving over 50 years standing at Kollapur also deposed that the chargedofficer used to leave for Hyderabad once in two weeks or so by about 12.00noon or 1.00 p.m. and return to headquarters on the next Monday by 11 a.m.or 12.00 noon. P.W.3 testified that the charged officer used to leave forHyderabad almost every Saturday by 1.00 or 2.00 p.m. and return to Kollapuron next Monday by about 12.00 noon. P.W.4 has no personal knowledgeabout it and he only heard it from others. P.W.5, P.W.6 and P.W.11 alsodeposed to the effect that the charged officer used to leave the head quartersin the afternoon on Saturdays and return to the headquarters in the afternoonof the next Monday. The above witnesses being the advocates practicing atKollapur can be expected to know as to when the charged officer was leavingthe headquarters and returning because they regularly attend the court. Theevidence of the advocate witnesses on this aspect is therefore based on theirpersonal knowledge and experience and not on any hearsay. The advocatesattending the court on Monday morning will be knowing as to when the officerreturned to the headquarters and resumed the work especially because thecharged officer has been residing in the Chambers itself.

41. In the cross-examination of P.W.13 the Head Clerk it was elicited that thecharged officer was leaving the headquarters after applying for thepermission from the District Court and on Saturdays there will not be anybench work and the officer used to return to the headquarters on Mondaybefore the court commenced, but sometimes he used to come late by 15minutes or half an hour when the bus came late. From this evidence ofP.W.13 also it can be seen that the charged officer was leaving theheadquarters on Saturdays and returning on Mondays. The plea of thecharged officer in his written statement and additional written statement is thathe was leaving the headquarters with the permission of the District Court. Hedid not however deny the fact of going to Hyderabad on Saturdays andreturning to Kollapur on Mondays. Admittedly his family was staying atHyderabad. It is not his plea that he shifted his family to Kollapur. His plea isonly to the effect that whenever he left headquarters it was with thepermission of the District Court. The file pertaining to the grant of permissionsand casual leaves is sent for at the instance of the charged officer from theAdditional District Judge, Mahabubnagar and it is marked as Ex.C.1. Aperusal of Ex.C.1 shows that the charged officer has been frequentingHyderabad, of course after applying for sanction of the casual leave orpermission to avail the public holidays as the case may be. Even if thecharged officer availed the casual leave or public holidays seeking thenecessary sanction or permission from the District Court, still he cannot leavethe headquarters during office hours of Saturdays and he has to return to theheadquarters before the working hours on Mondays. There is absolutely no reason as to why P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 should deposefalsely that the charged officer was leaving headquarters in the afternoon onSaturdays and returning in the afternoon on Mondays. It has to be noted thateven regarding the more serious charges pertaining to the alleged corruptpractices the above witnesses conceded that their knowledge is based onhearsay. So far as this charge is concerned they deposed from their personalknowledge and their competence to so depose cannot also be doubtedbecause they are practicing advocates at Kollapur regularly attending thecourt there and the charged officer is also residing in the court Chambersitself.

42. Thus, the evidence on record shows that the charged officer was leavingthe headquarters after applying for necessary permission from the DistrictCourt but he was however leaving the headquarters in the afternoon onSaturdays i.e., before the closure of the working hours and returning to theheadquarters on Mondays at about noon time i.e., after commencement of theworking hours and it was resorted to very frequently. When the officer himselfindulged in such permissiveness it breeds indiscipline among the staffmembers as well apart from the fact that office work on Saturdays and thebench work on Mondays also suffers. Such conduct on the part of the chargedofficer to leave the headquarters on the afternoon of Saturdays and return tothe headquarters on the afternoon of Mondays almost week after weekcertainly amounts to misconduct which is unbecoming of a judicial officer andin contravention of Rule-3 of Civil Services Conduct Rules, 1964. In thesecircumstances the charge No.7 is held proved against the charged officer tothe extent indicated above.”

Sri V. Venkata Ramana made efforts to persuade us to re-appreciate theevidence and over turn the findings recorded by the enquiry officer, which, asmentioned above, were accepted by the High Court. He emphasized that theadvocates who deposed against the petitioner were hostile to him because of hisstrict and uncompromising attitude and, therefore, their evidence could not be madebasis for holding him guilty. Learned counsel then took us through representationdated 21-12-1995 made by the petitioner and argued that abject failure on the HighCourt to consider the points raised in the representation should be treated assufficient to nullify the order of punishment. He further argued that in view of thefindings recorded by the enquiry officer in relation to charges No.1 and 2, chargeNo.4 could not have been treated as proved. Learned counsel submitted that oncethe petitioner was exonerated of the charge of corruption, he could not have beenheld guilty of openly trying to justify the taking of bribe.

Sri C.V.Nagarjuna Reddy argued that even though charges No.1 and 2 maynot have been found proved against the petitioner, the enquiry officer did not commitany error by holding him guilty of charge No.4. Sri Reddy submitted that the conductof the petitioner in trying to justify the taking of bribe by saying that High CourtJudges also used to take bribe and that nobody can touch him because one of theJudges was his godfather was wholly unbecoming of a judicial officer. Learnedcounsel then argued that even if the finding recorded by the enquiry officer in respectof charge No.4 is held to be legally untenable, the order of punishment should not beannulled because the remaining two charges found proved against him areextremely serious. Sri Reddy laid considerable emphasis on the fact that charges ofgrave financial irregularity of drawing house rent allowance for a period of 9 monthswhile staying in the chamber attached to the Court has been found proved againstthe petitioner beyond any manner of doubt. He then submitted that charge of leavingthe headquarter during working hours of Saturday and coming back on Monday aftercommencement of the working hours has been proved against the petitioner and,therefore, there is no warrant for court’s interdiction in the matter of punishmentimposed on the petitioner. According to the learned counsel, charge No.6, by itself,is sufficient for imposing the penalty of dismissal from service. Sri Reddycontroverted the argument of Sri Venkata Ramana that the High Court did not applymind to the representation made by the petitioner and argued that the High Courtwas not required to independently analyse the evidence and record findings on thecharges found proved against the petitioner because it had accepted the report ofthe enquiry officer. He also emphasized that the so-called failure of the High Court toindependently record reasons for holding the petitioner guilty of three chargescannot be made a ground for nullifying the order of punishment because noprejudice is shown to have been caused to him.

In our opinion, the enquiry officer did not commit any error in appreciating theevidence produced during the enquiry and the conclusions recorded by him aresupported by cogent evidence. A large number of advocates practicing at Kollapurhad not only complained against the deviant conduct of the petitioner, but twiceappeared before the enquiry officer to substantiate the allegations levelled by them.The employees of the Court also supported the allegations levelled by theadvocates. In the course of enquiry, the petitioner did not adduce any evidence todiscredit the testimony of the advocates and members of the staff. Therefore, the

Analysis

findings recorded by the enquiry officer in respect of charges No.4, 6 and 7, whichhave been extracted above cannot be declared as vitiated by error of law warrantinginterference by this Court under Article 226 of the Constitution of India. At the cost ofrepetition we consider it necessary to emphasize that the scope of judicial review ofdisciplinary action taken against a delinquent employee is very limited. In exerciseof power under Article 226 of the Constitution of India, the High Court cannot sit inappeal over the findings recorded by the enquiry officer and / or the disciplinaryauthority. The High Court cannot re-appreciate or re-value the evidence or go intothe sufficiency and / or adequacy of the evidence. The mere possibility that the HighCourt may, on re-appreciation of evidence come to a different conclusion is not aground for interfering with the findings and conclusions reached by the enquiryofficer and / or the disciplinary authority. The High Court can interfere with thefindings and conclusion reached by the competent authority only if the same arebased on no evidence or are based on legally inadmissible evidence or if it is foundthat while recording adverse findings, the competent authority overlooked materialand relevant evidence and such omission has affected the merits of the finding.Even in the cases of last mentioned category, the Court may refuse to interfere if it isfound that the action or omission of the competent authority has not causedprejudice to the delinquent.

In the present case, the findings recorded by the enquiry officer on chargesNo.4, 6 and 7 are based on a comprehensive evaluation of the evidence producedduring the enquiry. He referred to the testimony of each witness as also thedocuments and accepted the evidence produced by the department and discardedthe defence of the petitioner. It is neither the pleaded case of the petitioner nor hiscounsel has been able to show that the findings recorded by the enquiry officer arebased on no evidence or that no reasonable person could have reached thosefindings and conclusions on a proper appreciation of evidence. Therefore, we do notfind any merit in the petitioner’s plea that the order of punishment is vitiated by anerror of law apparent on the face of the record.

The argument of Sri V. Venkata Ramana that charge No.4 cannot be treatedas proved because the charges of corruption have not been proved againstpetitioner sounds attractive but on a closer scrutiny we are unable to agree with him.The substratum of charge No.4 is that the petitioner had openly declared that therewas nothing wrong for him to accept bribe because the High Court Judges also used to accept bribe and that nobody can touch him because one of the Judges of theHigh Court was his godfather. Both the facets of this charge have been found provedon the basis of the statements made by the advocates, one of whom had a standingof more than 50 years on the date of making statement. The petitioner did try todiscredit the statements of the advocates by suggesting that they were ill-disposedagainst him, but he did not produce any evidence to substantiate this accusation.Therefore, the mere fact that the charge of acceptance of bribe has not been provedagainst the petitioner cannot be made a ground for rejecting the finding recorded bythe enquiry officer in relation to charge No.4.

We are further of the view that even if charge No.4 is held as not proved, theorder of punishment cannot be quashed because the remaining two charges i.e.,charges No.6 and 7 which have been found proved against the petitioner areextremely serious and charge No.6 i.e., drawing house rent allowance without livingin a rented accommodation alone would have been sufficient to dismiss him fromservice. Therefore, by applying the ratio of the Supreme Court’s decision inBidyabhushan Mohapatra[5 ](supra) we have no hesitation to reject the petitioner’schallenge to the order of punishment only on the ground that one of the charge i.e.,charge No.4 can be treated as not proved against him.

The question which remains to be considered is whether the punishmentimposed on the petitioner is shockingly disproportionate to the misconduct foundproved against him or the same is totally arbitrary, unreasonable andunconscionable and warrants interference by the Court. The doctrine ofproportionality was invoked by the Supreme Court in Ranjit Thakur v. Union ofIndia for quashing the order of punishment. The proposition laid down in that casereads as under:

“Judicial review generally speaking, is not directed against a decision, butis directed against the “decision-making process”. The question of the choiceand quantum of punishment is within the jurisdiction and discretion of thecourt-martial. But the sentence has to suit the offence and the offender. Itshould not be vindictive or unduly harsh. It should not be so disproportionateto the offence as to shock the conscience and amount in itself to conclusiveevidence of bias. The doctrine of proportionality, as part of the concept ofjudicial review, would ensure that even on an aspect which is, otherwise,within the exclusive province of the court-martial, if the decision of the courteven as to sentence is an outrageous defiance of logic, then the sentencewould not be immune from correction. Irrationality and perversity are I n Union of India v. G.Ganayutham the doctrine of proportionality wasconsidered along with Wednesbury Rule and the following propositions were laiddown:

(1) To judge the validity of any administrative order or statutory discretion,normally the Wednesbury test is to be applied to find out if the decision wasillegal or suffered from procedural improprieties or was one which nosensible decision-maker could, on the material before him and within theframework of the law, have arrived at. The court would consider whetherrelevant matters had not been taken into account or whether irrelevantmatters had been taken into account or whether the action was not bonafide. The court would also consider whether the decision was absurd orperverse. The court would not however go into the correctness of the choicemade by the administrator amongst the various alternatives open to him. Norcould the court substitute its decision to that of the administrator. This is theWednesbury test.

(2) The court would not interfere with the administrator's decision unless itwas illegal or suffered from procedural impropriety or was irrational – in thesense that it was in outrageous defiance of logic or moral standards. Thepossibility of other tests, including proportionality being brought into Englishadministrative law in future is not ruled out. These are the CCSU principles.

(3) (a) As per Bugdaycay, Brind and Smith as long as the Convention is notincorporated into English law, the English courts merely exercise asecondary judgment to find out if the decision-maker could have, on thematerial before him, arrived at the primary judgment in the manner he hasdone.

(3) (b) If the Convention is incorporated in England making available theprinciple of proportionality, then the English courts will render primaryjudgment on the validity of the administrative action and find out if therestriction is disproportionate or excessive or is not based upon a fairbalancing of the fundamental freedom and the need for the restrictionthereupon.

(4) (a) The position in our country, in administrative law, where nofundamental freedoms as aforesaid are involved, is that the courts/tribunalswill only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority.The secondary judgent of the court is to be based on Wednesbury andCCSU principles as stated by Lord Greene and Lord Diplock respectively tofind if the executive or administrative authority has reasonably arrived at hisdecision as the primary authority.

(4) (b) Whether in the case of administrative or executive action affectingfundamental freedoms, the courts in our country will apply the principle of“proportionality” and assume a primary role, is left open, to be decided in anappropriate case where such action is alleged to offend fundamentalfreedoms. It will be then necessary to decide whether the courts will have aprimary role only if the freedoms under Articles 19, 21 etc. are involved andnot for Article 14.”

In Om Kumar v. Union of India the Supreme Court considered theapplicability of the doctrine of 'Proportionality' in the context of Article 14 of theConstitution, referred to the judgments in Ranjit Thakur Vs. Union of India[13](supra), B.C. Chaturvedi Vs. Union of India and held:

“1) In this context, we shall only refer to these cases. In Ranjit Thakur V.Union of India this Court referred to “proportionality” in the quantum ofpunishment but the Court observed that the punishment was “shockingly”disproportionate to the misconduct proved. In B.C. Chaturvedi Vs. Union ofIndia this Court stated that the court will not interfere unless the punishmentawarded was one which shocked the conscience of the court. Even then,the court would remit the matter back to the authority and would nor normallysubstitute one punishment for the other. However, in rare situations, thecourt could award an alternative penalty. It was also so stated inGanayutham.”

2) Thus, from the above principles and decided cases, it must be held thatwhere an administrative decision relating to punishment in disciplinarycases is questioned as “arbitrary” under Article 14, the court is confined toWednesbury principles as a secondary reviewing authority. The court willnot apply proportionality as a primary reviewing court because no issue offundamental freedoms nor of discrimination under Article 14 applies in sucha context. The court while reviewing punishment and if it is satisfied thatWednesbury principles are violated, it has normally to remit the matter to theadministrator for a fresh decision as to the quantum of punishment. Only inrare cases where there has been long delay in the time taken by thedisciplinary proceedings and in the time taken in the courts, and suchextreme or rare cases can the court substitute its own view as to thequantum of punishment.”

In Regional Manager, U.P. SRTC v. Hoti Lal the Supreme Court outlined themode to be adopted for determining whether the punishment imposed by thedisciplinary authority is shockingly disproportionate and observed as under:

“The Court or tribunal while dealing with the quantum of punishment has torecord reasons as to why it is felt that the punishment was not commensuratewith the proved charges. The scope for interference is very limited andrestricted to exceptional cases. In the impugned order of the High Court noreasons whatsoever have been indicated as to why the punishment wasconsidered disproportionate. Failure to give reasons amounts to denial ofjustice. A mere statement that it is disproportionate would not suffice. It is not-only the amount involved by the mental setup, the type of duty performed and-similar relevant circumstances which go into the decisionmaking processwhile considering whether the punishment is proportionate ordisproportionate. If the charged employee holds a position of trust wherehonesty and integrity are inbuilt requirements of functioning, it would not beproper to deal with the matter leniently. Misconduct in such cases has to bedealt with iron hands. Where the person deals with public money or isengaged in financial transactions or acts in a fiduciary capacity, the highestdegree of integrity and trustworthiness is a must and unexceptional.”(underlining is ours)

Reference also deserves to be made to the decisions of the Supreme Court inState Bank of India v. Samrendra Kishore Endow; State of Uttar Pradesh v.Ashok Kumar Singh; State of Uttar Pradesh v. Nandkishore Shukla; State ofPunjab Vs. Baxi Singh; Uttar Pradesh State Road Transport Corporation v.A.K. Parul; Union of India Vs. J.R. Gheman; Secretary A.P. SWRE I Society Vs.J. Prathap wherein the Supreme Court disapproved the invoking of the doctrine ofproportionality by the High Courts.

In Director General, RPF v. Ch. Sai Babu the Supreme Court reiterated thatthe High Court should ordinarily not interfere with the discretion exercised by thedisciplinary authority in the matter of imposition of punishment and observed:

“Normally, the punishment imposed by a disciplinary authority should not bedisturbed by the High Court or a tribunal except in appropriate cases that tooonly after reaching a conclusion that the punishment imposed is grossly orshockingly disproportionate, after examining all the relevant factors includingthe nature of the charges proved, the past conduct, penalty imposed earlier,the nature of duties assigned having due regard to their sensitiveness,exactness expected and discipline required to be maintained, and thedepartment/establishment in which the delinquent person concerned works.”

Following the ratio of the above noted decisions of the Supreme Court, wehold that the High Court will be loath to interfere with the discretion exercised by theemployer in the matter of imposition of punishment. Only in exceptional cases theCourt may interfere with the punishment if it is convinced that the same is whollyarbitrary or shockingly disproportionate to the misconduct found proved. Fordetermining whether the punishment imposed by the disciplinary authority is grosslyor shockingly disproportionate, the Court has to take into consideration all therelevant factors including the nature of charges proved, the past conduct of theemployee, the punishment, if any, imposed earlier, the nature of duties assigned tothe employee having due regard to their sensitiveness, performance norms, if any,laid down by the employer and above all the paramount requirement of maintainingdiscipline in the service and larger public interest. If the Court comes to a definiteconclusion that the employer has failed to consider relevant factors and on thataccount the order of punishment is vitiated, the authority concerned can be calledupon to re-examine the issue with reference to the relevant factors and then passappropriate order.

We may add that the position of a judicial officer is not akin to an ordinary civilservant. The judicial service is not a service in the sense of an employment. Thejudges discharge their functions while exercising the sovereign judicial power of theState. Their honesty and integrity is expected to be beyond doubt. They must betotally committed to the cause of justice. Their conduct within and outside the Courtmust be exemplary. They are obliged to discharge their function in a manner whichenhances the dignity of the institution of which they are the integral part. Theirfunctioning must be such which instill confidence in the public in general and thelitigants in particular. They must not do anything which shakes the peoples’confidence in the system of administration of justice. In High Court of Judicature,Bombay v. Shirish Kumar Rangarao Patil the Supreme Court expressed itsconcern over the erosion of values in the judiciary in the following words:

“The lymph nodes (cancerous cells) of corruption constantly keep creepinginto the vital veins of the judiciary and the need to stem it out by judicialsurgery lies on the judiciary itself by its self-imposed or corrective measuresor disciplinary action under the doctrine of control enshrined in Articles 235,124 (6) of the Constitution. It would therefore, be necessary that there shouldbe constant vigil by the High Court concerned on its subordinate judiciary and In The High Court of Judicature at Bombay v. Shashikant S. Patil and another,the Supreme Court reversed the decision of the Division Bench of the High Courtwhich had nullified the dismissal of the respondent and observed:

“The Judges, at whatever level they may be, represent the State and itsauthority, unlike the bureaucracy or the members of the other service. Judicialservice is not merely an employment nor the Judges merely employees. Theyexercise sovereign judicial power. They are holders of public offices of greattrust and responsibility. If a judicial officer “tips the scales of justice its ripplingeffect would be disastrous and deleterious”. Dishonest judicial personage isan oxymoron.”

In the context of judicial services it is also important to bear in mind that theunimpeachable integrity and unquestionable conduct of every judicial officer is sinequa non for maintaining the peoples’ faith and confidence in the system ofadministration of justice and if any component of this system is found to haveindulged in financial misconduct, the only course open to the authority concerned isto remove that component and replace it by a new one. If strict standards of conductare not followed by the members of the judicial family, they have to be shown thedoors and there is no justification for judicial intervention in such matters.

In the present case, we are convinced that the petitioner has failed to makeout a case for interference with the order of punishment. He was found guilty ofgrave misconduct. One of the charges found proved against him falls in the realm offinancial delinquency. The petitioner was holding the post of Munsif and JudicialMagistrate as a trustee of public faith and confidence. By drawing house rentallowance without living in a rented accommodation he will be deemed to havecommitted breach of trust reposed in him. Therefore, he has lost right to continue inservice and the punishment imposed on him cannot, by any stretch of imagination,be treated as shockingly disproportionate to the misconduct found proved or whollyarbitrary, unreasonable or unconscionable.

For the reasons mentioned above, the writ petition is dismissed.

December 30, 2005

svs

G.S. SINGHVI, CJ

R. SUBHASH REDDY, J