WP/22809/2007 of T.P.Sowmithri Vs The High Court of Andhra Prades, Rep.by its on 31 December 2009

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

WRIT PETITION No.22809 of 2007

Date: 31.12.2009

Between:T.P.Sowmithri

And:

…..Petitioner

The High Court of Andhra Pradesh and another

…..Respondents.

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

WRIT PETITION No.22809 of 2007

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

This petition is filed seeking writ of Certiorari for quashing orderin Roc.No.99/2001.CII/1, dated 01.10.2002 of the 1[st] respondentconfirming order in L.Dis.No.4615, dated 02.07.2001 of the 2[nd]respondent and for reinstating the petitioner into service with allconsequential benefits.

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

3) The disciplinary authority framed six charges against thepetitioner. Charge Nos.1 and 2 relate to typing of orders with mistakesand adding some of his own sentences in the orders which were notdictated by the presiding officer and consequently contravening Rule3(1) of the A.P. Civil Services (Conduct) Rules, 1964. Charges 3 and4 relate to indebtedness of the petitioner to P.Hymavathi ofVijayawada and P.Narasimhacharyulu, who is priest in SriVenkateswara Swamy temple, M.V.P. Colony, Visakhapatnam, incontravention of Rule 8(3) of A.P. C.S (Conduct) Rules. Charge No.5relates to contravention of Rules 3(1) and 3(2) of the A.P. C.S.(Conduct) Rules to the affect that he mislead an advocate by castingaspersion on the presiding officer of the Court to the affect that typeddeposition were not corrected, even though they were alreadycorrected by the presiding officer. Charge No.6 relates to keeping hisbranch work in arrears and failure to give explanation to official memogiven by the presiding officer by intentionally avoiding giving of reply. The petitioner submitted written statement denying the charges. TheDistrict Judge appointed the IV Additional District and Sessions Judge,Visakhapatnam as enquiry officer to conduct enquiry under Rule-20 ofthe A.P.C.S (CC & A) Rules. During enquiry before the enquiry officer,P.Ws 1 to 5 were examined and Exs.A-1 to A-13 were marked onbehalf of the department; and the charged employee/the petitionerexamined himself as D.W-1 and examined D.W-2 and marked Exs.D-1to D-3 on his behalf. After concluding enquiry and after followingprocedure prescribed by Rule-20, the enquiry officer gave enquiryreport dated 22.12.2000 to the District Judge, Visakhapatnam, who isthe disciplinary authority. In the enquiry report, the enquiry officerfound the petitioner guilty of all six charges framed against him. Thedisciplinary authority furnished copy of enquiry report to the delinquentand called for his representation. The petitioner gave hisrepresentation contesting finding of guilt on all six charges. Afterconsideration, the disciplinary authority passed the order dated

02.07.2001 accepting the enquiry report in toto and imposingpunishment of compulsory retirement of the petitioner from service. Indepartmental appeal filed by the petitioner to the High Court onadministrative side, the High Court did not agree wise findings of theenquiry officer and report of the disciplinary authority on charge Nos.3and 4 relating to indebtedness of the petitioner; and confirmed findingsof the enquiry officer and the disciplinary authority on charge Nos.1, 2,5 and 6 and ultimately confirmed order of the disciplinary authorityimposing punishment of compulsory retirement of the petitioner fromservice.

4) It is contended by the petitioner’s counsel that the chargeswere not proved against the petitioner and that in any event they aretrivial in nature and do not deserve imposing major punishment ofcompulsory retirement. It is further contended that report of the enquiryofficer is based on no evidence. It is also contended that charge Nos.1and 2 are vague and bald and do not contain particulars of the allegedmistakes typed by the petitioner and the alleged additions incorporatedby the petitioner without the presiding officer dictating the same andthat therefore, report of the enquiry officer on those charges is vitiated. It is further contended that the presiding officer (P.W-5)’s actionamounts to malice in law. On the other hand, it is contended by therespondents’ counsel that order of the disciplinary authority asconfirmed by the appellate authority on charge Nos.1, 2, 5 and 6 isvalid and legal. It is also contended for the respondents that delay inapproaching this Court by way of this writ petition is fatal and that noreason is put forward by the petitioner explaining delay and latches onhis part in filing the writ petition.

5) In Life Insurance Corporation of India V. Jyotish ChandraBiswas[[1]], when order of termination of the petitioner was passed on28.01.1969, it was challenged by writ petition on 25.03.1975 after sixyears and when there is no explanation whatsoever in the writ petitionfor this inordinate delay, the Supreme Court concluded that it indicated

Conclusion

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

6) Having regard to gravity of charge Nos.1, 2, 5 and 6, it is nodoubt true that imposition of major punishment of compulsoryretirement from service prima facie appears to be harsh. But, it may benoted that the disciplinary authority in another departmental enquiryconducted against the petitioner imposed punishment of compulsoryretirement of the petitioner from service in Dis.No.4616, dated02.07.2001, which is the same date as that of the impugned order inthis writ petition. In view of the said order, the disciplinary authoritymight have thought that no further punishment is necessary in thepresent departmental enquiry to the petitioner and imposed the samepunishment of compulsorily retiring him from service. Even thoughthere are two separate orders passed by the disciplinary authorityimposing compulsorily retirement from service on the petitioner, inpractice, there can be only one retirement for the petitioner and not tworetirements from the same service. This Court in writ petitionNo.22972 of 2007 confirmed order of the disciplinary authority inDis.No.4616, dated 02.07.2001 imposing punishment of compulsoryretirement from service on the petitioner. In that view of the matter,debate on punishment pattern adopted by the disciplinary authority inthe present departmental enquiry assumes little significance. Furtherstudy on proportionality of punishment and review of the same underArticle 226 of the Constitution of India as laid down in B.C.ChaturvediV. Union of India[[3]], State of U.P. V. Jaikaran Singh[[4]], State ofGujarath V. Anand Acharya[[5]], M.P.State Agro Industries DevelopmentCorporation Limited V. Jahan Khan[[6]]and Mavji C.Lakum V. CentralBank of India[[7]]becomes purely academic.

7) With regard to the alleged vagueness of and lack of material particulars in the charges, the petitioner’s counsel placed reliance onState of U.P. V. Mohd. Sharif[[8]]and Sawai Singh V. State ofRajasthan[[9]]. With regard to charge Nos.1 and 2, the disciplinaryauthority mentioned various dates and case numbers in which therewas wrong typing by the petitioner. They were also marked as Exs.A-6 to A-10 in the departmental enquiry. Those charges are based ondocuments and not oral evidence. In MOHD.SHARIF, there was nomention of date and time in the charge of mis-conduct namely thepolice officer hunting a bull, which mis-conduct has to be substantiatedby oral evidence and which is not based on documentary proof. Therefore, ratio in that decision cannot be applied to facts of thepresent case. In SAWAI SINGH, the Supreme Court held that groundrelating to vagueness in charges can be raised at any stage eventhough the said ground was not raised either before the enquiry officeror the disciplinary authority or the appellate authority or even beforethe High Court in the writ petition. This Court is not preventing thepetitioner to raise the ground on vagueness of charges in this writpetition. This Court is of the view that there is no vagueness in chargeNos.1 and 2, because they contained dates and case numbers inwhich wrong typings were made; apart from the charges being provedby documentary proof like Exs.A-6 to A-10 whose copies werefurnished to the petitioner. Therefore, we find that report of the enquiryofficer on charge Nos.1 and 2 is not vitiated by law.

8) With regard to finding on charge No.5, it is contended by thepetitioner’s counsel that evidence of the presiding officer as P.W-5 isproved to be wrong by evidence of P.W-1, who is the translator (benchclerk) working in the same Court. It is evidence of P.W-5 that heconducted trial in Sessions Case No.74 of 1995 in which 27 witnesseswere examined and that a senior advocate represented to him in openCourt to the affect that carbon copies of depositions of witnesses werenot delivered to him and when he contacted the petitioner, he informedhim about the depositions being not corrected by the presiding officer.

P.W-5 says that he is in habit of correcting depositions on the sameevening by keeping them in his box. P.W-1 deposed in cross-examination that the presiding officer used to correct depositionsduring evening time and not on the bench immediately after recordingof evidence. She further deposed that the presiding officer did notcorrect depositions in S.C. No.74/1995 on the bench and kept thedepositions in his box on the same day and that the presiding officerdid not hand over original depositions in S.C. No.74/1995 on the nextday of recording of evidence of witnesses. This evidence of P.W-1 iscontrary to her sworn statement Ex.A-1 recorded by the presidingofficer(P.W-5) before sending complaint against the petitioner to theDistrict Judge. In Ex.A-1 sworn statement, P.W-1 stated that she waspresent throughout the proceedings in S.C. No.74/1995 and that she iskeeping typed depositions in box in the evening and that next morningthe depositions are handed over to her after they were duly corrected. P.W-1 accepted Ex.A-1 as her sworn statement in her deposition. Shedid not give any explanation for her previous version contained inEx.A-1. Therefore, the enquiry officer is justified in disbelieving P.W-1’s evidence to the affect that typed depositions were not handed overto her by the presiding officer on the next day. In spite of availability ofcorrected original depositions, the petitioner did not put up carboncopies of depositions for being handed over to the defence counsel onhis application. Instead the petitioner made aspersions on thepresiding officer to the affect that the presiding officer did not correctthe depositions. To save his skin from complaint of delay, thepetitioner had chosen to throw blame on the presiding officer. Therefore, the enquiry officer rightly found the petitioner guilty ofcharge No.5.

9) In so far as charge No.6 is concerned, the petitioner did notcomplete arrears of work in his branch and did not admittedly giveexplanation for official memo given by the presiding officer P.W-5 tohim. There is no explanation for the petitioner as to why he did not give explanation for the official memo. It is evident that the petitionerintentionally avoided giving explanation to the official memo in areckless manner and exhibited his indifference towards the presidingofficer and towards his duties. Thus, on consideration of entirematerial on record, we are of the view that the enquiry officer, thedisciplinary authority and the appellate authority are legally justified infinding the petitioner guilty on charges 1, 2, 5 and 6. This is not a caseof there being no evidence in support of the charges. The petitionercould not make out any valid and legal grounds for interference by thisCourt under Article 226 of the Constitution of India.

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

_________________

A.GOPAL REDDY, J

December 31, 2009

KSH

_____________________________

SAMUDRALA GOVINDARAJULU, J

[1](2000)6 Supreme Court Cases 562(2000)6 Supreme Court Cases 562

[2]AIR 1974 SUPREME COURT 259

[3](1995)6 Supreme Court Cases 749(1995)6 Supreme Court Cases 749

[4](2003)9 Supreme Court Cases 228(2003)9 Supreme Court Cases 228

[5](2007)9 Supreme Court Cases 310(2007)9 Supreme Court Cases 310

[6](2007)10 Supreme Court Cases 88(2007)10 Supreme Court Cases 88

[7](2008)12 Supreme Court Cases 726(2008)12 Supreme Court Cases 726

[8]AIR 1982 Supreme Court 937AIR 1982 Supreme Court 937

[9](1986)3 Supreme Court Cases 454(1986)3 Supreme Court Cases 454