WP/7853/2002 of Jonna Krishnappa Vs The Senior Civil Judge, on 31 December 2007

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

MONDAY THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND SEVEN

PRESENT

HON’BLE THE ACTING CHIEF JUSTICE BILAL NAZKIANDHON’BLE MR JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION NO.7853 of 2002

Between:Jonna Krishnappa

AND

The Senior Civil Judge, Madanapalle,Chittoor District and 2 others

..... PETITIONER

.....RESPONDENTS

HON’BLE THE ACTING CHIEF JUSTICE BILAL NAZKIANDHON’BLE MR JUSTICE NOOTY RAMAMOHANA RAOWRIT PETITION No.7853 of 2002

ORDER:(per Hon’ble Sri Justice Nooty Ramamohana Rao)

The petitioner who was working as an Amin, had instituted this writpetition, aggrieved by an order passed by the learned District Judge,Chottore on 24.06.1998, imposing the punishment of stoppage of fourincrements with cumulative effect.

2. The facts to the extent relevant would disclose that the writpetitioner was working as Amin at the Subordinate Judge’s Court,Madanapalle at the relevant point of time. Certain complaints have beenlodged by the Advocates and their Clerks alleging that the Amins of theCourt, in particular one Sri A.Venkatamuni had been indulging in themalpractice of selling away the postal covers and postal stampsdeposited in various matters, after pilfering them from the Court records. The learned Subordinate Judge, Madanapalle had been directed by thelearned District Judge on 30.08.1995 to conduct a discreet enquiry tofind out about the veracity of these allegations. Thus, the ball was setrolling in the matter.

3. The learned Subordinate Judge had returned his prima faciefindings, in substance, to the following effect:

“For the present purpose it is suffice to have the view of B-Registers of each Court which are maintained every year andDispatch Register, which is a common Register for all courts. The Dispatch Amin’s duty is to receive the postal covers whichare to be sent to the Defendants or Respondents, as the casemay be, in respective suits or O.Ps. and other proceedings. When he receives the postal covers, he sends them under registered post and after collecting the postal receipts thereof hewill be pinning them separately and on occasions filing them inthe Dispatch Register itself. He makes relevant entries in theDispatch Register such as B-Number, O.S.Number, name of theRespondent or Defendant, date of receipt by him and entersthese particulars against the dispatch number. The Nazir’sAssistant in turn has to enter the dispatch number under therelevant column in B-Registers against the respective B-Numbers. From verification of B-Registers and dispatchregisters, it would be very easy to make out as to which of thecovers were actually handed over to the dispatch Amin, by theNazir Assistant on those relevant days. Even if wrong dispatchnumbers are noted against B-numbers in B-Registers by theNazir’s Assistant, the same can also be detected by crosschecking the suit or O.P.Number with reference to B-Numbermentioned in B-Registers with that of the correspondingparticulars in the dispatch register.”

“Since I did not disclose anything to the Sheristadar about thispetition, I had to ask him to trace out at what stage those coverswere missing i.e. whether they were retained by the concernedAssistant of Deputy Nazir or whether though they were handedover to the Dispatch Amin, whether the dispatch Amin hasretained them without dispatching them. Therefore, theSheristadar had to take out the periods of each Amin who hasworked as Assistant to Deputy Nazir of the dispatch Amin duringthose periods. He has verified the same and put up before me awritten report with all particulars and having perused the sameand personally verifying the registers with the particulars he hasgiven, I am satisfied with the correctness of those particularswhich lead to the detection of missing of postal covers.”

“According to his report the postal covers were missing whenthe Amin, Sri A.Venkatamuni and the Amin Sri J.Krishnappafunctioned as Nazir Assistants. During the periods of SriA.Venkatamuni, the instances are many, whereas during theperiod of Sri J.Krishnappa, the instances are of course veryless.”

4. In view of this preliminary report, disciplinary action has beeninitiated against both the Amins Sri A.Venkatamuni and the petitionerherein. To the extent relevant, charge No.2 framed against the petitionerreads as under:

“that you Sri J.Krishnappa, Amin, Sub Court, Madanapalliwhile working as Deputy Nazir’s Assistant during the months of March and September, 1991, February, May, June, 1994, andduring that period you indulged in malpractice of stealing of thestamped covers after preparation of summons and notices by theProcess-writers of ADJ Court, Sub Court, District Munsif Court,Madanapalli and you retained without handing over them to theDispatch assistant of Nazarath willfully to make wrongful gain byselling them to the intending purchasers and thus committedmisconduct contravening the provision of Rule 3 of A.P.CivilServices (Conduct) Rules, 1964.”

5. Since the petitioner and the other Amin have disputed theveracity, a regular enquiry has been ordered and before the EnquiryOfficer, as many as 13 witnesses have been examined and 17 exhibitshave been got marked in support of the charge. The writ petitioner hadnot preferred to examine any witnesses nor did he file any documentsduring the course of enquiry. The Enquiry Officer has concluded theenquiry holding the petitioner guilty of charge No.2 in the followingmanner:

“D2 was the nazar assistant during the above periods as perthe records and as per the evidence available. Though B-numbers were given for receiving the summons with postalcovers by the parties and entered in the B-registers there was nocorresponding dispatch numbers of the postal covers sent to therespective parties. In B.Nos.359, 360, in OS.69/91; B.No.1068in SC.54/91; B.No.1122 in OS.254/89; B.No.640 in OS.141/94;B.No.664 in OS.148/94 on the file of P.D.M.Court, the postalcovers were not sent as per the registers. In the above suits itwas proved by both oral and documentary evidence that at leastone postal cover was not sent in each of the above cases by D.2in the respective dates. In the dispatch register, the columnswere kept blank. Though this delinquent suggested that thisenquiry has been got appointed at the instance of SheristadarPW 3 in view of the disputes between him and PW 3, there is nomaterial to show that there was any enemity betweenSheristadar PW 3 and D.2 and the enquiry was got ordered onthe report of Sheristadar. There is no evidence to show that PW3 has got enemity or enimosity with D.2, and at his instance theenquiry was ordered. After going through the material on record,after considering the written statement and the written argumentsfiled by D.2, I am of the considered opinion that D2 during therelevant period mentioned in the charge worked as nazirassistant and indulged in malpractice in handling the postal

covers appended to the summons and he has not handed overthem to the dispatch amin in the above suits, though he receivedpostal covers and entered in B-registers. Since he being thenazir assistant during the relevant period mentioned in thecharge and he maintained the records, he is liable for nothanding over the postal covers to dispatch amins and for thedispatch register blanks in the relevant columns. Since there isno reasonable explanation by the delinquent the only inferencethat can be drawn is that the delinquent No.2 with ulterior motivefor wrongful gain retained the postal covers without handingover them to the dispatch amin and contravened the provisionsof Rule 3 of Civil Services (Conduct) Rules, 1964.”

6. Since the explanation offered by the petitioner after the receiptof the above report, is not found satisfactory, the District Judge throughthe impugned order, imposed the punishment of withholding four annualincrements with cumulative effect on both the Amins. The petitionerpreferred an appeal on the Administrative side of this Court on13.11.1997. That appeal was considered and rejected by this Court byan order dated 27.03.1999. Thereafter, the petitioner moved anotherpetition on 23.06.1999, soliciting re-consideration of the entire matterand that application was also rejected by this Court on 20.10.1999.

7. Heard the learned counsel on either side.

8. The principal contention of the learned counsel for the petitioneris that the main element of the charge leveled against the petitioner isthat he indulged in the malpractice of stealing of the stamped postalcovers from the Court records, whereas the said charge has not beenbrought home and hence he deserves to be let off. The learned counselwould also urge that even assuming, for purposes of argument that therewas sufficient material on record for an inference to be drawn against thepetitioner, but nonetheless the punishment imposed in so far as thepetitioner is concerned, is too grave and disproportionate to the extent ofthe charge held proved against him. The learned counsel would alsourge that he had discovered new material which disclosed that thepostal covers have not, in fact, been deposited by the Advocates in the matters concerned and hence, he could not have been penalized forcausing disappearance of a non-existing material.

9. Per contra, the learned counsel for the respondents SriD.V.Seetharamamurthy would contend that the material that wasmarshaled before the Enquiry Officer, both oral and documentaryevidence would unmistakably disclose the culpability of the writpetitioner along with another Amin and therefore, it is not open to thisCourt to

re-appreciate the entire evidence for arriving at a conclusion differentfrom that of the Enquiry Officer and the Disciplinary Authority with regardto the guilt of the petitioner. He would also further contend that whenonce it has been brought out that the petitioner is equally guilty for themisdemeanor of causing pilferage of the record of the Court, the fact thathe has indulged in such an act on less number of occasions than theother Amin, does not make the punishment imposed in so far as thepetitioner is concerned any heavier. In fact, the learned District Judgehad dealt with both of them with an even Land and hence the impugnedorder could not be faulted on that count. In so far as the new material,the petitioner is now seeking to rely upon, the learned counsel for therespondents would urge that in spite of providing more than areasonable opportunity, the same has not been produced during thecourse of enquiry, and if any consideration is shown to the same to day,it would be a denial of a fair chance for the respondents to put forth theirviews with regard to the accuracy and relevance of the same, andhence, he urges that the same should not be taken into consideration. He also urges that in view of the enormous time consumed by the writpetitioner in instituting this writ petition, even after the review petitionmoved by him is dismissed by this Court on administrative side, on20.10.1999, for that reasons also, the fresh material which is sought tobe relied upon by the petitioner should not be taken into account orconsideration by this Court.

10. We agree with the point of view canvassed by the learnedcounsel for the respondents, in that, consideration of the new and freshmaterial by way of evidence by the petitioner at this stage would result indenying them a fair opportunity to meet the case of the petitioner. Thereare no valid reasons assigned as to why the petitioner could not obtain“the certified copies of the battas paid in the respective matters” earlierand produce the same before the Enquiry Officer. Without providing anyopportunity for testing the veracity and genuineness of such claims, it ishazardous to take into account and consideration such additional andnew material at this belated stage and particularly after several yearshave rolled by before the petitioner would institute the present writpetition.

11. It is not in dispute that the disciplinary authority had agreedwith the finding on Charge No.3 and held the petitioner as not guilty ofthe same. Entire issue, therefore, centers around the guilt of thepetitioner with reference to charge No.2, as he is not concerned withcharge No.1, which in turn, is directed against the other Amin SriA.Venkatamuni.

12. For bringing home the guilt of the petitioner, amongst severalothers, the Sheristadar of the Court has been examined at thedepartmental enquiry as PW 3. He has deposed with reference to therole of the petitioner herein in the following manner:

“Sri J.Krishnappa, worked as Nazar Assistant for the monthsof May & June 1994, January & February, 1994; He also workedas a Nazar Assistant during the months of March & September,1991; Ex.P-15 is the ‘B’ Register from 8-11-89 to 8-4-91, in Ex.P-15 B.No.164 in OP.38/91 one postal cover made ready on 15-3-91 and dispatch column is left blank, which means it was notsent. There is erasement and again written as ‘post’ in col.No.4,i.e. Ex.P-16 (page No.452) ‘B’ register of P.D.M.Court for theperiod from 15-10-90 to 9-10-91 is marked as Ex.P-17. InB.No.292 out of 3 postal covers only 2 covers were sent and inthe other cover the dispatch number is left blank. B.No.359 inEx.P-17 in OS.60/91 the column of Dis.No. is left blank. B.No.360 the column of dis.No.one postal cover is left blank.

B.No.1068 in SC.54/91 the postal cover made ready on 6-9-91and the column of dispatch No. is left blank. B.No.1172 thecover made ready on 27-9-91 the column of dispatch No. is leftblank. In Ex.P-3 in B.No.640 the postal cover for D-1 & D-2were made ready on 5-5-94, though J.Krishnappa was NazarAssistant during that period, the hand-writing of J.Krishnappadoes not tally. B.No.664 in Ex.P-3 in OS.148/94 was madeready on 29-6-94, the column of dispatch number was left blank. I made cross-check in reference to the dispatch register and Ifound that the above covers were not sent.

For the missing entries in B-register relating to the 3 Courtswere verified by the presiding officer, i.e. Sub-Judge,Madanapalle and put red-lines by him in all the entries wherethe columns are kept blank.”

13. PW 3 has been subjected to extensive cross examination. In cross examination, he has reiterated as under:

“I am deposing as per entries of B-registers and there is noaccount for dispatch of postal cover in B.No.640. I have notverified the batta memos, but I scrutinized the B-registers anddispatch registers concerned.”

14. It is settled principle of law that in exercise of jurisdiction underArticle 226, the High Court cannot re-appreciate the entire evidence, aswould a Court of Appeal, normally do. Adequacy and sufficiency ofevidence for returning a finding of guilty is also not an issue, which canbe entertained by this Court in its jurisdiction under Article 226, unlessone is able to demonstrate that the material, as is available on the faceof the record, would not normally lead a reasonable body of men toarrive at the conclusion of guilt, and thus rendering the finding of guiltyrecorded by the Enquiry Officer/Disciplinary Authority to becharacterized as a perverse finding, warranting interference.

15. But nonetheless the main thrust of the charge appears to bethat the petitioner had indulged in “malpractice of stealing of thestamped covers” from the Court records. As is already noticed, aninference has been drawn that the petitioner is equally guilty of causingdisappearance of the postal covers from the Court records and thus,

indirectly, the charge is sought to be held established against thepetitioner. In matters of this nature, the possibility or availability of directevidence can be very remote if not liable to be ruled out. When once thepetitioner had failed to satisfactorily explain the absence of postal coversfrom the Court records under his custody, it is reasonable inference thatmay be drawn that he has indulged in the malpractice of removing themfrom the Court Records. Though the charge as framed against thepetitioner used a far more stringent expression “malpractice of stealing”,but nonetheless the main theme with which the petitioner had beenproceeded and confronted against is that he has caused thedisappearance of certain material forming part of the Court records. Thepetitioner had not suffered, in this process, any prejudice by the usage ofa stronger expression characterizing his misconduct.

16. But nonetheless one fact which remains to be taken note of isthat the allegations have been principally made against the other AminSri A.Venkatamuni and in the process of investigating those allegations,the role of the present petitioner herein has also come out. It is veryclear that the postal covers have not been properly accounted for in fewcases in so far as the present petitioner is concerned, whereas therewere large scale irregularities indulged in by Amin Sri A.Venkatamuni. In those set up circumstances, a lenient view should have been takenwhile imposing the punishment in so far as the present petitioner isconcerned. The petitioner as well as Sri A.Venkatamuni could not havebeen treated alike without any regard for the quantum of irregularitiesindulged in by them.

17. Proportionality of punishment, as an area open for judicialreview, has been brought into the Indian Jurisprudence by the SupremeCourt in the cases of Ranjit Thakur v. Union of India[[1]], Bhagat Ramv. State of H.P[[2]],and U.P.SRTC v. Mahesh Kumar Mishra[[3]]. TheSupreme Court has also cautioned that normally what should be theadequate punishment that would meet the offender should be left for consideration of the disciplinary authority. But, however, with a view tocut down further rounds of avoidable litigation and the possible delay,Courts have also been substituting the punishment by themselves inappropriate cases.

18. In fact, the learned counsel for the petitioner had drawn ourattention to an unreported judgment, rendered by a Division Bench ofthis Court, comprising of the Honourable Chief Justice S.Saghir Ahmedand Honourable Justice Sri P.Venkatarama Reddi (as Their Lordshipsthen were) in Writ Appeal No.1195 of 1994 in this regard, wherein theirLordships concluded as under:

“Having regard to the facts and circumstances of the case, Wefeel that the contention of the learned counsel for the appellantmerits acceptance.

Accordingly, We allow the writ appeal partly and directmodification of the punishment into one of withholding twoincrements without cumulative effect.”

19. Stopping of increments with cumulative effect will have agrave impact on an employee travelling even beyond his term of service,and his post retiremental benefits will also get adversely effected by thecumulative effect imposed on such an employee. We, therefore,consider that stoppage of four increments without cumulative effectwould meet the ends of justice in the case of the petitioner in contrast tothe case of the other Amin Sri A.Venkatamuni.

20. While upholding the finding of the misconduct against thepetitioner, We think it appropriate that the petitioner be imposedpunishment of withholding of stoppage of four increments withoutcumulative effect, in substitution of the punishment of stoppage of fourincrements with cumulative effect.

21. Accordingly, the Writ Petition is allowed, modifying thepunishment as stoppage of four increments without cumulative effect, insubstitution of the punishment of stoppage of four increments with cumulative effect. In the circumstances, there shall be no order as tocosts.

_______________________

BILAL NAZKI, ACJ

Dated: 31.12.2007Dsr

___________________________________

NOOTY RAMAMOHANA RAO, J

[1] (1987) 4 SCC 611 (1987) 4 SCC 611

[2] (1983) 2 SCC 442 (1983) 2 SCC 442

[3] (2000) 3 SCC 450 (2000) 3 SCC 450