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 …..Petitioner And: 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 order in Roc.No.99/2001.CII/1, dated 01.10.2002 of the 1st respondent confirming order in L.Dis.No.4615, dated 02.07.2001 of the 2nd respondent and for reinstating the petitioner into service with all consequential benefits. 2) The petitioner was working as typist in the Mahila Court, Visakhapatnam in the Visakhapatnam unit and the 2nd respondent namely District and Sessions Judge, Visakhapatnam was the unit head. After conducting enquiry under Rule 20 of the A.P.Civil Services (Classification, Control and Appeal) Rules, 1991 the District Judge imposed punishment of compulsory retirement on the petitioner and it was confirmed by the High Court on administrative side in appeal filed by the petitioner. Therefore, the petitioner approached this Court for necessary relief under Article 226 of the Constitution of India. 3) The disciplinary authority framed six charges against the petitioner. Charge Nos.1 and 2 relate to typing of orders with mistakes and adding some of his own sentences in the orders which were not dictated by the presiding officer and consequently contravening Rule 3(1) of the A.P. Civil Services (Conduct) Rules, 1964. Charges 3 and 4 relate to indebtedness of the petitioner to P.Hymavathi of Vijayawada and P.Narasimhacharyulu, who is priest in Sri Venkateswara Swamy temple, M.V.P. Colony, Visakhapatnam, in contravention of Rule 8(3) of A.P. C.S (Conduct) Rules. Charge No.5 relates 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 casting aspersion on the presiding officer of the Court to the affect that typed deposition were not corrected, even though they were already corrected by the presiding officer. Charge No.6 relates to keeping his branch work in arrears and failure to give explanation to official memo given by the presiding officer by intentionally avoiding giving of reply. The petitioner submitted written statement denying the charges. The District Judge appointed the IV Additional District and Sessions Judge, Visakhapatnam as enquiry officer to conduct enquiry under Rule-20 of the 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 on behalf of the department; and the charged employee/the petitioner examined himself as D.W-1 and examined D.W-2 and marked Exs.D-1 to D-3 on his behalf. After concluding enquiry and after following procedure prescribed by Rule-20, the enquiry officer gave enquiry report dated 22.12.2000 to the District Judge, Visakhapatnam, who is the disciplinary authority. In the enquiry report, the enquiry officer found the petitioner guilty of all six charges framed against him. The disciplinary authority furnished copy of enquiry report to the delinquent and called for his representation. The petitioner gave his representation contesting finding of guilt on all six charges. After consideration, the disciplinary authority passed the order dated 02.07.2001 accepting the enquiry report in toto and imposing punishment of compulsory retirement of the petitioner from service. In departmental appeal filed by the petitioner to the High Court on administrative side, the High Court did not agree wise findings of the enquiry officer and report of the disciplinary authority on charge Nos.3 and 4 relating to indebtedness of the petitioner; and confirmed findings of the enquiry officer and the disciplinary authority on charge Nos.1, 2, 5 and 6 and ultimately confirmed order of the disciplinary authority imposing punishment of compulsory retirement of the petitioner from service. 4) It is contended by the petitioner’s counsel that the charges were not proved against the petitioner and that in any event they are trivial in nature and do not deserve imposing major punishment of compulsory retirement. It is further contended that report of the enquiry officer is based on no evidence. It is also contended that charge Nos.1 and 2 are vague and bald and do not contain particulars of the alleged mistakes typed by the petitioner and the alleged additions incorporated by the petitioner without the presiding officer dictating the same and that therefore, report of the enquiry officer on those charges is vitiated. It is further contended that the presiding officer (P.W-5)’s action amounts to malice in law. On the other hand, it is contended by the respondents’ counsel that order of the disciplinary authority as confirmed by the appellate authority on charge Nos.1, 2, 5 and 6 is valid and legal. It is also contended for the respondents that delay in approaching this Court by way of this writ petition is fatal and that no reason is put forward by the petitioner explaining delay and latches on his part in filing the writ petition. 5) In Life Insurance Corporation of India V. Jyotish Chandra Biswas[1], when order of termination of the petitioner was passed on 28.01.1969, it was challenged by writ petition on 25.03.1975 after six years and when there is no explanation whatsoever in the writ petition for this inordinate delay, the Supreme Court concluded that it indicated that the petitioner accepted order of termination of his services if not expressly but impliedly. On the other hand the petitioner’s counsel placing reliance on Ramachandra Sankar Deodhar V. State of Maharashtra[2] contended that the principle on which the Court proceeds in refusing relief to the petitioner on ground on latches on delay is that rights which have accrued to others by reason of delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It was a decision rendered by the apex Court in a matter relating to denial of promotion to the petitioners. It is not a case of termination of services of the Government servant. Observations of the Supreme Court in the latter decision cannot be applied to facts of this case which relates to compulsory retirement of the petitioner from service. The former decision which is later in point of time is aptly applicable to facts of this case. In their writ petition, the petitioner did not attempt to explain inordinate delay of five years in filing this writ petition after disposal of departmental appeal by the 1st respondent. On the other hand in Para-2 of the counters, the respondents 1 and 2 specifically pleaded that unexplained delay on the part of the writ petitioner in not challenging disciplinary proceedings for all these years is fatal to maintainability of this writ petition. In spite of it, the petitioner did not make any endeavour to file reply affidavit putting forth any reasons for the inordinate delay. It only suggests that the petitioner has no explanation at all for the delay. It is contended by the petitioner’s counsel that due to poverty and lack of funds, the petitioner might not have taken diligent steps to file this writ petition immediately after disposal of departmental appeal by the 1st respondent. On the other hand the respondents’ counsel contended that the delay may suggest that the petitioner was gainfully employed elsewhere and therefore, he was not very much serious in questioning the disciplinary proceedings by way of this writ petition. Having regard to circumstances of the case, we have to conclude that the petitioner has tacitly accepted his compulsory retirement from service; or otherwise he would not have slept over the order of compulsory retirement from service for all these five years conveniently. On this ground alone, this writ petition has to fail. 6) Having regard to gravity of charge Nos.1, 2, 5 and 6, it is no doubt true that imposition of major punishment of compulsory retirement from service prima facie appears to be harsh. But, it may be noted that the disciplinary authority in another departmental enquiry conducted against the petitioner imposed punishment of compulsory retirement of the petitioner from service in Dis.No.4616, dated 02.07.2001, which is the same date as that of the impugned order in this writ petition. In view of the said order, the disciplinary authority might have thought that no further punishment is necessary in the present departmental enquiry to the petitioner and imposed the same punishment of compulsorily retiring him from service. Even though there are two separate orders passed by the disciplinary authority imposing compulsorily retirement from service on the petitioner, in practice, there can be only one retirement for the petitioner and not two retirements from the same service. This Court in writ petition No.22972 of 2007 confirmed order of the disciplinary authority in Dis.No.4616, dated 02.07.2001 imposing punishment of compulsory retirement from service on the petitioner. In that view of the matter, debate on punishment pattern adopted by the disciplinary authority in the present departmental enquiry assumes little significance. Further study on proportionality of punishment and review of the same under Article 226 of the Constitution of India as laid down in B.C.Chaturvedi V. Union of India[3], State of U.P. V. Jaikaran Singh[4], State of Gujarath V. Anand Acharya[5], M.P.State Agro Industries Development Corporation Limited V. Jahan Khan[6] and Mavji C.Lakum V. Central Bank 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 on State of U.P. V. Mohd. Sharif[8] and Sawai Singh V. State of Rajasthan[9]. With regard to charge Nos.1 and 2, the disciplinary authority mentioned various dates and case numbers in which there was wrong typing by the petitioner. They were also marked as Exs.A- 6 to A-10 in the departmental enquiry. Those charges are based on documents and not oral evidence. In MOHD.SHARIF, there was no mention of date and time in the charge of mis-conduct namely the police officer hunting a bull, which mis-conduct has to be substantiated by oral evidence and which is not based on documentary proof. Therefore, ratio in that decision cannot be applied to facts of the present case. In SAWAI SINGH, the Supreme Court held that ground relating to vagueness in charges can be raised at any stage even though the said ground was not raised either before the enquiry officer or the disciplinary authority or the appellate authority or even before the High Court in the writ petition. This Court is not preventing the petitioner to raise the ground on vagueness of charges in this writ petition. This Court is of the view that there is no vagueness in charge Nos.1 and 2, because they contained dates and case numbers in which wrong typings were made; apart from the charges being proved by documentary proof like Exs.A-6 to A-10 whose copies were furnished to the petitioner. Therefore, we find that report of the enquiry officer on charge Nos.1 and 2 is not vitiated by law. 8) With regard to finding on charge No.5, it is contended by the petitioner’s counsel that evidence of the presiding officer as P.W-5 is proved to be wrong by evidence of P.W-1, who is the translator (bench clerk) working in the same Court. It is evidence of P.W-5 that he conducted trial in Sessions Case No.74 of 1995 in which 27 witnesses were examined and that a senior advocate represented to him in open Court to the affect that carbon copies of depositions of witnesses were not delivered to him and when he contacted the petitioner, he informed him about the depositions being not corrected by the presiding officer. P.W-5 says that he is in habit of correcting depositions on the same evening by keeping them in his box. P.W-1 deposed in cross- examination that the presiding officer used to correct depositions during evening time and not on the bench immediately after recording of evidence. She further deposed that the presiding officer did not correct depositions in S.C. No.74/1995 on the bench and kept the depositions in his box on the same day and that the presiding officer did not hand over original depositions in S.C. No.74/1995 on the next day of recording of evidence of witnesses. This evidence of P.W-1 is contrary to her sworn statement Ex.A-1 recorded by the presiding officer(P.W-5) before sending complaint against the petitioner to the District Judge. In Ex.A-1 sworn statement, P.W-1 stated that she was present throughout the proceedings in S.C. No.74/1995 and that she is keeping typed depositions in box in the evening and that next morning the 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. She did not give any explanation for her previous version contained in Ex.A-1. Therefore, the enquiry officer is justified in disbelieving P.W- 1’s evidence to the affect that typed depositions were not handed over to her by the presiding officer on the next day. In spite of availability of corrected original depositions, the petitioner did not put up carbon copies of depositions for being handed over to the defence counsel on his application. Instead the petitioner made aspersions on the presiding officer to the affect that the presiding officer did not correct the depositions. To save his skin from complaint of delay, the petitioner had chosen to throw blame on the presiding officer. Therefore, the enquiry officer rightly found the petitioner guilty of charge No.5. 9) In so far as charge No.6 is concerned, the petitioner did not complete arrears of work in his branch and did not admittedly give explanation for official memo given by the presiding officer P.W-5 to him. There is no explanation for the petitioner as to why he did not give explanation for the official memo. It is evident that the petitioner intentionally avoided giving explanation to the official memo in a reckless manner and exhibited his indifference towards the presiding officer and towards his duties. Thus, on consideration of entire material on record, we are of the view that the enquiry officer, the disciplinary authority and the appellate authority are legally justified in finding the petitioner guilty on charges 1, 2, 5 and 6. This is not a case of there being no evidence in support of the charges. The petitioner could not make out any valid and legal grounds for interference by this Court under Article 226 of the Constitution of India. 10) In the result, the Writ Petition is dismissed. No costs. _________________ A.GOPAL REDDY, J _____________________________ SAMUDRALA GOVINDARAJULU, J December 31, 2009 KSH [1] (2000)6 Supreme Court Cases 562 [2] AIR 1974 SUPREME COURT 259 [3] (1995)6 Supreme Court Cases 749 [4] (2003)9 Supreme Court Cases 228 [5] (2007)9 Supreme Court Cases 310 [6] (2007)10 Supreme Court Cases 88 [7] (2008)12 Supreme Court Cases 726 [8] AIR 1982 Supreme Court 937 [9] (1986)3 Supreme Court Cases 454