THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.26388 OF 2007 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) The petitioner was working as Junior Assistant in the court of Special Judicial Magistrate of I Class for the Trial of Prohibition and Excise Oﬀences Nellore. One Kampa Budevaiah is the accused in C.C.No.82/2002 on the ﬁle of the said court. Bondili Nagendra Singh stood as surety for the said accused and executed a bond for Rs.3,000/- on 12.6.2002 and accused was released on bail. When the said accused failed to attend the court, N.B.Ws. were issued and also notices were issued to Bondili Nagendra Singh, as he stood as surety. On 17.11.2004 the said Bondili Nagendra Singh came to the court and represented that he had already paid Rs.2,500/- to the petitioner while he was dealing with criminal bench seat on or about 31.12.2003 and out of which, a sum of Rs.1,500/- was collected towards the surety amount and Rs.1,000/- was collected by the petitioner towards oﬃce expenses and issued receipt dated 8.1.2004 for a sum of Rs.1,500/- for the amount collected from him. On that, the Magistrate of the said court got veriﬁed the records and found that no surety amount was paid and that Bondili Nagendra Singh was not discharged. Thereupon, the Magistrate recorded the statement of Bondili Nagendra Singh and along with his statement, ﬁled report to the District Judge, Nellore. Thereupon, a preliminary enquiry was ordered and the I Additional Senior Civil Judge, Nellore conducted preliminary enquiry and recorded the sworn statements of Smt. G.Malathi, SJMFC for trial of Prohibition And Excise Oﬀences, Nellore; Sri Bondili Nagendra Singh, M.Rangareddy, Superintendent of the Court of SJMFC for Trial of Prohibition and Excise Oﬀences, Nellore; Sri N.Nagaraju Junior Assistant of the court of SJMFC for Trial of Prohibition and Excise Oﬀences, Nellore and Sri Md. Abdul Muneer, Court Assistant of the Court of I SJMSC, Nellore and submitted a report holding that there was prima facie material to order regular departmental enquiry. Based on the preliminary enquiry report, charge was framed against the petitioner and he was directed to submit his written statement and the petitioner submitted his written statement. Not being satisﬁed with the explanation, regular enquiry was ordered and the Senior Civil Judge, Gudur was appointed as the enquiry oﬃcer. Before the enquiry oﬃcer, on behalf of the Department, P.Ws.1 to 5 i.e., M.Rangareddy, Superintendent of Special JMFC, for Trial of Prohibition and Excise cases, Court, was examined as P.W.1, N.Nagaraju, the Bench clerk of the said court, as P.W.2, Md. Abdul Muneer, the Court Assistant of First Special Judicial Magistrate of Second Class Court, Nellore as P.W.3, Smt. G.Malathi, the then Presiding Oﬃcer of the court of Special Judicial Magistrate of I Class, for trial of Prohibition and Excise Cases, Nellore as P.W.4 and S.Nagarjuna, Additional Senior Civil Judge, Nellore, who is the preliminary enquiry oﬃcer, as Ex.P.5. Further Exs.P-1 to P-8 were got marked. On behalf of the petitioner, no witness was examined and no document was also marked. After considering the evidence available on record, the enquiry oﬃcer submitted report ﬁnding the petitioner guilty of the charge leveled against him. The enquiry report was served on the petitioner and he was directed to submit his explanation. The petitioner accordingly submitted his explanation and the disciplinary authority i.e., the District Judge, by the proceedings in R.C.A.No.104/2005 dated 23.1.2006 imposed the punishment of compulsory retired from service. Aggrieved by the same, the petitioner ﬁled administrative appeal to the 2nd respondent – Registrar (Management), High Court of A.P. and by Order in D(D)A.No.32/2006, C.4 (Con.), dated 16.11.2006, the appellate authority conﬁrmed the order of the disciplinary authority. Challenging the same, the petitioner ﬁled the present writ petition. 2. The case of the petitioner in the aﬃdavit ﬁled in support of the writ petition is that B.Nagendra Singh, is the vital witness who gave statements before the Magistrate in the court of Prohibition and Excise Oﬀences, Nellore and before the preliminary enquiry oﬃcer, was not examined in the regular enquiry. The statement of B.Nagendra Singh before the Magistrate would show that he had handed over the original receipt alleged to have been fabricated, to the oﬃce Superintendent M.Ranga Reddy, who was examined as P.W.1 before the enquiry oﬃcer. But the original receipt has not seen the light of the day and only the Xerox copy is marked as Ex.P-1. His further case is that without identifying the receipt by B.Nagender Singh, which is alleged to have been issued by him after collecting the amount, it cannot be held that he issued the fabricated receipt. The further case of the petitioner is that the Superintendent in Criminal Court and his Assistant who is in the cadre of Junior Assistant are the appropriate employees to collect the surety amount from sureties, ﬁne amount from accused, receive case property, return the case property, issue refund vouchers and conduct everything connected with monitory aspect of the criminal court and as he was attending the bench work, will not have any time to talk with people like B.Narendra Singh and therefore the version of the B.Narendra Singh, who is well versed with court proceedings, cannot be believed that he paid the ﬁne amount to him. The further grievance of the petitioner is that though B.Narendra Singh is very much available in Nellore District, he was left unexamined on the ground that his wife stated that he had gone to Kuwait. It is stated that P.W.3 Muneer who is working as Assistant in 1st Special JMSC Court, Nellore whose court receipt is said to have been used in the case and marked as Ex.P-1, denied that the receipt belongs to his court and he further stated that it is not in his hand. Further his admitted handwriting was not sent to any export, as nobody said that contents of Ex.P-1 are in his handwriting. P.W.4, G.Malathi, Magistrate deposed before the regular enquiry oﬃcer that she had recoded the statement of B.Nagendra Singh in the present of I.Neeraja Assistant Public Prosecutor of the court, but she was not examined and P.Ws.1 and 2 who were said to be present while recording the statement of B.Nagendra Singh, categorically deposed that they were not present when the statement of B.Nagendra Singh was recorded by the Magistrate and they stated that their signatures were taken subsequently. It is further stated that though there are inconsistencies in the statements of P.Ws.1 and 2 on the one hand, and P.W.4 on the other, the enquiry oﬃcer without considering the said inconsistencies, found him guilty and the same is not sustainable. Finally the petitioner stated that he has put in 23 years of service and that his children are studying and on mere surmises and ﬂimsy grounds and without their being evidence, he cannot be inﬂicted with punishment of compulsory retirement from service. With these averments, the impugned order was sought to be set aside. 3. The disciplinary authority and the appellate authority i.e., the Principal District and Sessions Judge, and the Registrar (Management) of the High Court of A.P. who are the respondents 1 and 2 ﬁled their respective counter aﬃdavits which are to the eﬀect that as per the sworn statement of one B.Nagendra Singh, who stood as a surety for the accused in C.C.No.82/2002 on the ﬁle of the Special Judicial Magistrate of First Class for Trial of Prohibition and Excise Oﬀences, Nellore, the petitioner is alleged to have received a sum of Rs.2,500/- from the said surety and issued him a receipt for Rs.1,500/- which was allegedly forged by him in the name of the Presiding Oﬃcer of the Court. A report in connection with the above issue was sent to the District Judge, Nellore on 4.12.2004 by the then Special Judicial Magistrate of First Class for Trial of Prohibition and Excise Oﬀences, Nellore and thereupon the I Additional Senior Civil Judge, who conducted preliminary enquiry into the matter, submitted a report stating that there is prima facie case of misconduct on the part of the petitioner and thereupon charge was framed and disciplinary proceedings were initiated and the enquiry oﬃcer after conducting departmental enquiry, based on the evidence found the petitioner guilty and thereupon the petitioner was served with enquiry report and the petitioner submitted his representation and not being satisﬁed with the same and duly considering the material on record, the disciplinary authority passed order dated 23.1.2006 imposing punishment of compulsory retirement from service, and in the administrative appeal, the same was conﬁrmed. It is further stated that the enquiry oﬃcer by scrupulously following the procedure and considering the preponderance of probabilities, found the petitioner guilty. It is stated that the surety B.Nagendra Singh was examined by P.Ws.4 and 5 and as he left for Kuwait, he could not be examined before the enquiry oﬃcer and the non-examination of B.Nagendra Singh, would however not have any eﬀect on the validity of the enquiry proceedings as the evidence of P.Ws.1 to 4, clearly established the guilt of the petitioner and it is not open for the petitioner to seek for re-evaluation of the facts and the evidence under the writ jurisdiction, which is limited to the review of the validity of the decision making process. It is further stated that the petitioner earlier faced disciplinary action for the irregularities committed and he suﬀered stoppage of three annual increments with cumulative eﬀect in the year 1995 and in the year 2005 he was imposed with the punishment of stoppage of one annual increment with cumulative eﬀect. The petitioner was already shown suﬃcient sympathy by imposing punishment of compulsory retirement from service instead of dismissal from service and hence no interference is warranted at the hands of this court. With these averments, the writ petition was sought to be dismissed. 4. The learned counsel appearing for the petitioner while reiterating the averments made in the writ aﬃdavit further contended that there is no legally acceptable evidence on record to prove the charge against the petitioner, since B.Nagendra Singh, who is the vital and importance witness, was not examined. He further submitted that as Rule 20(14) of the Andhra Pradesh Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991, after the Government Servant closes his case and if the Government Servant has not examined himself, the inquiring authority shall question him on the circumstances appearing against him in the evidence, to enable him to explain the circumstances appearing against him in the evidence. He contended that in the present case, the enquiry oﬃcer has not followed the procedure prescribed under Rule 20(14) and hence there is procedural irregularity and the impugned orders have to be set aside. He further submitted that the punishment imposed is disproportionate and hence sought to take a lenient view by taking into consideration the long length of service and the economic circumstances narrated by the petitioner in the writ petition. 5. On the other hand, the learned Standing Counsel appearing for the High Court contended that the enquiry oﬃcer by following the procedure and in compliance of the principles of natural justice and also considering the evidence made available, submitted report and the disciplinary authority by considering the representation of the petitioner and by re-appreciating the entire material on record, imposed the punishment of compulsory retirement on the petitioner and the same was conﬁrmed by the appellate authority by considering the entire material on record. He submitted that there are no lacunae in following the procedure. He further submitted that the statement of B.Nagendra Singh was recorded initially by G.Malathi, Magistrate, who was examined as P.W.4 before the enquiry oﬃcer and also by the preliminary enquiry oﬃcer and based on the evidence the enquiry oﬃcer found the petitioner guilty and non-examination of B.Nagendra Singh is not fatal to the case of the Department. He contended that the writ petitioner cannot re-agitate the question of facts and the ﬁndings of fact cannot be interfered with under the writ jurisdiction. He submitted compliance of Rule 20(14) is not mandatory. With these averments and by supporting the impugned orders, he sought to dismiss the writ petition. 6. In view of the above rival contentions, we would like to consider the validly of the impugned order. 7. The charge against the petitioner is as under: “That you on or about 31-12-2003 while dealing criminal bench seat in Special Judicial Magistrate of I Class Court for Trial of Prohibition and Excise Oﬀences, Nellore received Rs.2,500/- (Rs.1,500/- being surety amount in C.C.No.82/02 on the ﬁle of Special J.M.F.C., of II Class, Nellore and Rs.1,000/- being your expenses) from Bondili Nagendra Singh s/o Appala Ram Singh and issued a fake receipt for Rs.1,500/- dt.8-1-2004 by forging the signature of the oﬃcer, which act committed and if proved or established would amount to misconduct on your part and that you thereby committed an oﬀence punishable under Rule 9 of A.P.Civil Services (C.C.A.) Rules, 1991 and liable for imposing penalty.” 8. The charge against the petitioner is that while he was dealing with criminal bench seat in Special Judicial Magistrate of I Class Court for Trial of Prohibition and Excise Oﬀences, Nellore, received an amount of Rs.2,500/- and out of the said amount, Rs.1,500/- was towards surety amount and Rs.1,000/- was towards his expenses, from Bondili Nagendra Singh, who was the surety in C.C.No.82/2002 on the file of the said court and issued fake receipt for Rs.1,500/- on 8.1.2004 by forging the signature of the Presiding Officer. To prove the charge, on behalf of the Department, P.Ws.1 to 5 were examined. P.W.1 was the Superintendent at the relevant point of time in the court of Judicial Magistrte of I Class for trial of Prohinition and Excise Oﬀences Court, Nellore. P.W.2 is the Junior Assistant working in the said court, P.W.4 is the Magistrate of the said court. The evidence of P.Ws.1, 2 and 4 is crucial. They categorically deposed that on 17.11.2004 the said Bondili Nagendra Singh approached them and informed that he had already paid the surety amount to the petitioner to a sum of Rs.2,500/- and the petitioner issued Ex.P-1 receipt dated 8.1.2004 for a sum of Rs.1,500/- and informed him that he was discharged from the surety ship in C.C.No.82/2002. Based on this information, P.W.4 asked P.Ws.1 and 2 to verify the records and in turn they veriﬁed the case records in C.C.No.82/2002 and other relevant registers and records and came to know that Bondili Nagendra Singh was not discharged from surety ship, nor he paid any amount previously and Ex.P-1 was not issued by their court and P.W.4 further deposed that the signature on Ex.P-1 is not that of her. Thereupon, P.W.4 recorded the statement of Bondili Nagendra Singh under Ex.P-2 in the presence of P.Ws.1 and 2 and Smt. I.Neeraja A.P.P. of their Court and the same was submitted to the District Judge for taking action. 9. Though there was discrepancy with regard to approaching of Bondili Nagendra Singh ﬁrst to P.Ws.1 and 2 or P.W.4 after issuing notice in C.C.No.82/2002 as the accused failed to attend the court, the enquiry oﬃcer categorically found that the fact remained that the said Bondili Nagendra Singh produced the receipt showing that he paid the surety amount and that he was discharged and on veriﬁcation it was found that Ex.P-1 was not issued by the concerned oﬃce and the signature therein was not that of P.W.4. Therefore, the enquiry oﬃcer found that Ex.P-1 is a forged receipt produced by the Bondili Nagendra Singh. Similarly the petitioner sought to contend that P.W.4 deposed that Bandili Nagendra Singh’s statement was recorded in the presence of P.Ws.1 and 2, but P.Ws.1 and 2 deposed that the statement of Bandili Nagendra Singh was not recorded in their presence and that their signatures were obtained subsequently, therefore, the contention of the petitioner is that this discrepancy should enure to his beneﬁt. The enquiry oﬃcer has rightly noticed the evidence given by P.Ws.1 and 2 before the preliminary enquiry oﬃcer and before the regular enquiry. In the preliminary enquiry, they deposed that the statement of Bondili Nagendra Singh was recorded by P.W.4 in their presence and whereas in the regular enquiry during cross-examination deposed that they were not present at the time of recording the statement of Bondili Nagendra Singh. As already noted above the evidence of P.Ws.1, 2 and 4 clearly established that Nagendra Singh approached them and produced Ex.P-1, which is a fake and fabricated document. P.W.4 is the Magistrate who recorded the statement of Nagendra Singh. She deposed about the recording of the statement of Nagendra Singh in the presence of P.Ws.1 and 2 and in the preliminary enquiry also P.Ws.1 and 2 deposed to this fact. For the best reasons known to them, in the regular enquiry, they stated that they were not present at the time of recording the statement of Nagendra Singh by P.W.4. This minor discrepancy will not cripple the other substantial evidence on record. Further it is to be conspicuously noted that the petitioner did not choose to cross-examine P.W.4 and, therefore, the entire evidence of P.W.4 has to be accepted. Therefore, the contention of the petition in this regard has rightly been discharged by the enquiry officer. 10. The main contention of the petitioner is that Bondili Nagendra Singh was not examined before the enquiry oﬃcer and further the original of Ex.P-1, which is said to have been produced by Nagendra Singh before P.Ws.1, 2 and 4 was not produced before the court and the xerox copy cannot be relied upon and further there is also no evidence to show that Ex.P-1 was in his handwriting. The fact of Bondili Nagendra Singh approaching P.Ws.1,2 and 4 was established from their evidence. Bondili Nagendra Singh was examined by P.W.5, who is the Preliminary Enquiry oﬃcer before the preliminary enquiry and his statement is marked as Ex.P-7. Subsequently P.W.4 recorded the statement of Nagendra Singh and the same is marked as Ex.P-2. Both Exs.P-7 and P-2 are corroborating each other and they are to the eﬀect that Ex.P-1 was issued by the petitioner after taking a sum of Rs.2,500/- from him. It is to be further seen that when the enquiry notice was sought to be served on Nagendra Singh, his wife Smt. B.Kamakshi Bai stated that Nagendra Singh left for Kuwait about six months back and her statement was also recorded and returned along with the summons. Therefore, there was no possibility to examine Nagendra Singh. Though the petitioner contends that the said Nagendra Singh was very much available in Nellore District, he did not produce any evidence to that effect. It is well settled that in departmental proceedings, the enquiry oﬃcer cannot compel the attendance of the witnesses. It is also to be seen that the departmental proceedings cannot be related to criminal proceedings, where strict rules of Evidence Act are applicable. In the departmental proceedings, preponderance of probabilities has to be examined. The evidence of P.Ws.1,2 and 4 categorically established that Nagendra Singh produced Ex.P-1 receipt stating that it has been issued by the petitioner. Therefore, non-examination of Nagendra Singh cannot be said to be fatal to the case of the Department. 11. The other contention of the petitioner is that none of the witnesses deposed that Ex.P-1 was in his handwriting and P.W.3 who is the working as Assistant in I Special JMSC Court, Nellore deposed that Ex.P-1 do not belong to his court and it is not in his hand. Therefore, the contention of the petitioner is that the receipt under Ex.P-1 and the admitted handwriting ought to have been sent for any expert for opinion. This contention merits for outright rejection for the reasons that the evidence of P.Ws.1, 2 and 4 categorically establish that Ex.P-1 receipt was issued by the petitioner to Nagendra Singh and that the signature on Ex.P-1 is not that of P.W.4, who is the Presiding Oﬃcer. Further the Nagendra Singh also identiﬁed the petitioner before the preliminary enquiry. Therefore, these probabilities would lead to the irresistible conclusion that the petitioner issued Ex.P-1 receipt by forging the signature of the Presiding Officer. 12. The other grievance of the petitioner is that as per the case of the Department, Nagendra Singh produced the original receipt said to have been issued by him before P.W.4, but the same has not seen the light of the day and only Xerox copy is marked as Ex.P-1 and the Xerox copy is not admissible in evidence and hence the punishment cannot be imposed by relying on Xerox copy. At the cost of repetition, the evidence on record clinchingly proved that after collection of amount from Nagendra Singh, the petitioner has issued Ex.P-1 receipt. It is to be noticed that strict rules of Evidence Act are not applicable in the Departmental Proceedings. Even otherwise, it is to be noticed that Ex.P-1 was marked through P.W.1. From a perusal of the evidence of P.W.1, it is clear that the petitioner did not take any objection with regard to admissibility before marking the said document. When such an objection is not taken during enquiry, the petitioner cannot now be permitted to agitate the said issue (see DAYAMATHI BAI vs. K.M.SHAFFI [1] .). Therefore, the contention of the petitioner is this regard, cannot be countenanced. 13. The next contention of the counsel for the petitioner is that as per Rule 20(14) of the of the Andhra Pradesh Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991 after the Government Servant closes his case and if the Government Servant has not examined himself, the inquiring authority shall question him on the circumstances appearing against him in the evidence, to enable him to explain the circumstances appearing against him in the evidence. But in the present case, the enquiry oﬃcer has not followed the procedure prescribed under Rule 20(14) and hence there is procedural irregularity and the impugned orders has to be set aside. This contention also cannot be countenanced. The petitioner did not choose to examine any witness. From a perusal of the enquiry report it could be seen that after the closure of the evidence on behalf of the department, the petitioner ﬁled his additional defence statement. The petitioner could not demonstrate before us that failure to follow Rule 20(14) has prejudiced his case. Further the petitioner has not raised this issue either before the disciplinary or the appellate authorities. The contention of the learned Standing Counsel for the High Court is that following Rule 20(14) is not mandatory. Therefore, we are of the considered view that failure to follow the procedure contemplated under Rule 20(14) will not vitiate the enquiry, as the enquiry oﬃcer by giving suﬃcient opportunity to the petitioner and by duly following the principles of natural justice, submitted the report, ﬁnding the petitioner guilty and the disciplinary authority after serving the report of enquiry on the petitioner and considering the representation of the petitioner and also by re-appreciating the entire evidence, has accepted the enquiry report and similarly the appellate authority by duly following the procedure has conﬁrmed the order of the disciplinary authority. Therefore, the contention in this regard merits for rejection. 14. It is well settled that this court under Article 226 of the Constitution of India cannot sit as an appellate authority over departmental enquiry and the ﬁndings arrived thereof. But there cannot be any dispute that if the ﬁndings arrived at by the enquiry oﬃcer are based on no evidence or the ﬁndings recorded were such that no ordinary prudent man would arrive, or that if the ﬁndings are perverse, this court can deﬁnitely exercise the power of judicial review and interfere with the ﬁndings of the fact recorded by the enquiry oﬃcer. In view of this settled position, this court has undertaken the above exercise of re-examining the evidence on record to see whether the ﬁndings were recorded based on evidence and whether there is any perversity in the approach of the authorities below. On