THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.17791 OF 2007 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) The petitioner was working as Attender in the unit of District Judge, Anantapaur. While working in the courts at Senior Civil Judge, Penukonda, Junior Civil Judge, Madakasiri and Junior Civil Judge, Kalyandurga, the petitioner remained absent unauthorizedly absent during the periods from 1.7.2001 to 7.10.2001, 12.10.2001 to1.1.2002, 2.1.2002 to30.6.2002, 27.6.2003 to 26.11.2003 and from 12.12.2003 and he was placed under suspension on 5.2.2004. Further while working at the court of Senior Civil Judge, Penukonda, he did not put up his family at Penukonda, where he was working and was shuttling from Dharmavaram. Therefore, on the grounds of not putting up the family at Penukonda, where he was working and on the grounds of his unauthorized absence from duty and also for other dereliction of duties, departmental enquiry in D.E.No.1/2004 was initiated and the Senior Civil Judge, Hindpur was appointed as Enquiry Oﬃcer. The petitioner was set ex parte, as he did not appear before the Enquiry Oﬃcer in spite of receipt of notice. The Enquiry Oﬃcer after conducting enquiry as per Rule 20 of A. P. Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991 and considering the evidence, both oral and documentary lead in support of the enquiry, found the petitioner guilty of all the charges 1 to 7 leveled against him and accordingly submitted the report. The Disciplinary Authority i.e., the District Judge, accepting the report of the Enquiry Oﬃcer, issued ﬁnal show cause notice proposing punishment of removal and as the petitioner did not choose to submit his representation, accepting the report of the Enquiry Oﬃcer, issued proceedings in Dis.No.892 dated 14.2.2005-A dated 4.2.2005 removing the petitioner from service as per Rule 18 Notice (4) of A.P. Fundamental and Subsidiary Rules read with Rule 9(viii) of A.P.Civil Services (CCA) Rules, 1991 and the period of his willful absence was treated as ‘dies-non’ as per G.O.Ms.No.260 G.A.(Ser.C), Department dated 4.9.2003. Aggrieved by the order of the disciplinary authority, the petitioner preferred administrative appeal to the High Court of A.P. represented by the 1st respondent – Registrar(Management) and by the impugned proceedings in Order in D(D)A.No.47/2006.C4(Con.) dated 31.3.2007, the appellate authority upheld the order of punishment, removing the petitioner from service. Aggrieved by the same, the petitioner filed the present writ petition. 2. The case of the petitioner is that he was a chronic patient of stomach ache and was taking continuous treatment right from 1.3.2001 and during the period of ailment, he along with his family members were falsely implicated in a criminal case on account of land disputes between their family members and his paternal uncle. Therefore, as he was suﬀering from ill-heath, he could not attend duty and during the period of his absence, he submitted leave applications, leave roll forms and medical certiﬁcates issued by competent medical oﬃcers. But the Sherishtadar of the court played mischief and fraud and did not put up them before the Presiding Oﬃcer and misguided him and further reported that the leave roll forms are empty and that as he is a class IV employee, is not capable of ﬁling up the columns and it is the usual practice that the leave rolls of class IV employees will be ﬁlled up by the Chief Ministerial Oﬃcer or some superior service employee. His further case is that as he was bedridden, he could not submit his written statement nor participate in the enquiry. The enquiry oﬃcer proceeded ex parte and held that all the charges are proved without considering the applications submitted by him for grant of leave. The petitioner ﬁled medical certiﬁcates issued by the Professor/Civil Surgeon, Government Medical College, Government General Hospital, Anantapur covering the period of his absence before the appellate authority i.e., the Registrar (Management). His grievance is that the 2nd respondent – disciplinary authority without evaluating the evidence independently, depending upon the report of the enquiry oﬃcer and accepting the same, terminated the petitioner from service and the same has been accepted by the appellate authority, without considering the medical certificates submitted by him. He stated that the ﬁnal order is passed on 4.2.2005 under Note (4) of Fundamental Rule 18, but the said note was introduced as per G.O.Ms.No.80 Finance (F.R-I) Department dated 18.1.2004 and the same was made applicable to the cases falling after 18.1.2004 and not applicable for the past cases. Therefore, the case of the petitioner is that F.R.18(4) has not application to the facts of the case.. The further case of the petitioner is that the enquiry and the eventual punishment are in violation of principles of natural justice and the punishment imposed is shockingly disproportionate to the grave of the charges leveled. With these averments, the impugned order was sought to be set aside. 3. The appellate authority and the disciplinary authority, who are the respondents 1 and 2 herein, ﬁled separate counter aﬃdavits and the tenor of their aﬃdavits is to the eﬀect that the petitioner continuously absented from duty for more than one year and hence by conducting enquiry and after giving suﬃcient opportunity to the petitioner, the disciplinary authority accepting the report of the enquiry oﬃcer and after issuing ﬁnal show cause notice and as the petitioner did not choose to challenge the same, passed the order, removing the petitioner from service. The petitioner ﬁled appeal with a delay of 428 days and he did not give any suﬃcient reasons for condoning the delay. The appellate authority by considering the merits of the appeal and as no reasonable cause is shown for the delay, dismissed the administrative appeal. It is further stated that the Government of Andhra Pradesh vide G.O.Ms.No.8 dated 8.1.2004 introduced an amendment in Fundamental Rule 18 (vide note no.4), which states to the eﬀect that in all cases of unauthorized absence from duty for continuous period exceeding one year, the penalty of removal from service shall be imposed on the Government Servant, duly following the procedure laid down under Rule 20 of the A.P. Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991. The petitioner did not raise this contention when he ﬁled appeal on the administrative side. Even prior to the amendment to Fundamental Rules, the Government of Andhra Pradesh had issued instructions vide G.O.Ms.No.260 dated 4.9.2003 which are on the same lines as per the provision contained in note no.4 of Fundamental Rule 18. With these averments inter alia and supporting the impugned order, the writ petition was sought to be dismissed. 4. The learned counsel appearing for the petitioner reiterating the averments made in the aﬃdavit ﬁled in support of the writ petition further contended that the enquiry was conducted mala ﬁdely, only with an intention to remove the petitioner and grounds are concocted. He further contended that the disciplinary authority did not apply his mind independently by evaluating the evidence and he mechanically accepted the report of the enquiry officer. He further vehemently contended that the enquiry is in violation of the principles of natural justice and no opportunity was given. He further contended that the appellate authority did not consider the request of the petitioner to remand the matter for conducting the enquiry afresh by giving an opportunity to the petitioner. He submitted that the punishment imposed is shocking disproportionate and excessive and hence sought to set aside the same. 5. On the other hand, the learned standing counsel appearing for the respondents supporting the impugned order, sought for dismissal of the writ petition. 6. 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 and interfere with the punishment imposed by the lower appellate authority. 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 the departmental enquiry and this court would also examine the proportionality of the punishment imposed vis-à-vis the gravity of misconduct. 7. In the light of the above perspective, we would like the examine the case of the petitioner. 8. The charges framed against the petitioner are as under: Article 1:- That you Sri D.Ramakrishna, while working as Attender in Senior Civil Judge’s Court, Penukonda have been continuously irregular to your duties and causing inconvenience to the Presiding Oﬃcer and you did not put up your family at the Head Quarters, Penukonda where you were working and making up and down trips from Dharmavaram and thereby you are liable for disciplinary action for your misconduct under A.P.C.S. (C.C.A) Rules, 1991. Article 2: That you Sri D.RamaKrishna, while working as Attender in Senior Civil Judge’s Court, Penukonda have been continuously absent from 1.7.2001 to 7.10.2001 without prior sanction from the competent authority which amounts to unauthorized absence from duty thereby liable for disciplinary action for your unauthorized absence under A.P.C.S.(C.C.A.) Rules, 1991. Article 3: That you Sri D.Ramakrishna, while working as Attender in Senior Civil Judge’s Court, Penukonda have been continuously absent from duty from 12.10.2001 to 1.1.2002 without sanction from the competent authority which amounts unauthorized absence from duty thereby rendered yourself liable for disciplinary action for unauthorized absence under A.P.C.S. (C.C.A) Rules, 1991. Article No.4: That you Sri D.Ramakrishna, while working as Attender in Senior Civil Judge’s Court, Penukonda have to join duty on 2.1.2002 up to which date you have applied for leave and pending for sanction, did not join for duty nor applied for any kind of leave till 1.7.2002 on which date you reported before the Senior Civil Judge, Penukonda and requested to permit for joining duty who in turn directed you to obtain permission of the District Judge, as you were absent from duty unauthorisedly and that matter is pending before the District Judge and accordingly when approached, the District Judge permitted you to join duty and called for your explanation for your unauthorized absence from 2.1.2002, for which you have not submitted any explanation though you received the proceedings on 13.8.2002 and thereby rendered yourself liable for disciplinary action under A.P.C.S. (C.C.A.) Rules, 1991 for disobedience and misconduct in not submitting the explanation as directed by the disciplinary authority. Article no.5: That you Sri D.Ramakrishna, while working as Attender in the court of the Senior Civil Judge, Penukonda and while you were on guard duty on 8.8.2002, you left the premises without informing to anybody and without handing over the keys of court building to your reliever and remained absent till 12.8.2002 without applying for any kind of leave, for which you were called upon by the District Judge to submit your explanation within ten days from the date of receipt of the order as to why disciplinary action should not be taken against you for your unauthorized absence from 8.8.2002, but you did not submit any explanation within the stipulated time though you have received the proceedings on 27.8.2002 and thereby rendered yourself liable for disciplinary action under A.P.C.S. (CCA) Rules, 1991 for disobedience and misconduct in not submitting the explanation as directed by the disciplinary authority. Article No.6: That you Sri D.Ramakrishna, while working as Attender in the Court of the Senior Civil Judge, Penukona, have attended for duty on 13.8.2002 and applied for casual leave for one day on 14.8.2002 with permission to avail public holiday on 15.8.02 and the same was granted subject to attending the ﬂag hoisting function on 15.8.02 but you have not attended the ﬂag hoisting function on 15.8.2002 and in that connection, you were called for to submit explanation to the Senior Civil Judge, Penukonda and you have attended for guard duty on 16.8.2002 and left the court premises before 8.00 p.m. by handing over the court keys to another process server who is in no way concerned and you have attended for guard duty at 11.00 a.m. on 17.8.2002 instead of by 8-00 a.m. thereby liable for disciplinary action under A.P.C.S.(CC.A.) Rules, 1991 for dereliction of duties and negligence in discharging your duties. Article no.7: That you Sri D.Ramakrishna, Attender, while working as Attender in the court of the Junior civil Judge, Madakasira, left the Head Quarters at Madakasira without prior permission and sent a telegram from Dharmavaram on 24.6.2003 requesting for two days C.L. on 24.6.2003 and 25.6.2003 and again on 26.6.2006 sent another telegram from the same place for extension of C.L. on 26.6.2003 and 27.6.2003 and thereafter you neither submitted any leave application nor joined duty and absented from duty unauthorisedly from 28.6.2003 till you joined duty at Kalyandurg and thereby liable for disciplinary action under A.P.C.S. (C.C.A.) Rules, 1991. 9. From the above extract, the charges against the petitioner are unauthorized absence during diﬀerent spells; not putting up the family at the place of working and; dereliction of duties. The petitioner comes with the explanation that he was unwell and that he was sought to be implicated in criminal case by his relatives in connection with a land dispute and that though he sent leave applications along with medical certiﬁcates, the Sheristadar, with mala ﬁde intention, has not put the same before the Presiding Oﬃcer for sanction of leave. He contends that as he was unwell, he cannot wait till the leave was sanctioned. The further case of the petitioner is that the enquiry was conducted in violation of the principles of natural justice and the disciplinary authority by not applying his mind independently to the facts of the case, simply relied on the report of the enquiry oﬃcer and removed him from service. That even the appellate authority in the administrative appeal, did not consider his request to remand the matter to conduct enquiry afresh after giving him opportunity. Further the note (4) to Fundamental Rule 18 which empowers the authority to impose penalty of removal from service, if the employee is absent unauthorizedly for one year, is not applicable to the case of the petitioner, as the same is made applicable to the cases falling after 18.1.2004 and since in the present case, the absence of the petitioner prior to the said date, the same cannot be invoked to impose the penalty of removal from service. The further case of the petitioner is that the punishment is disproportionate to the gravity of charges. 10. In order to consider the above, it is necessary to re-examine the evidence and other material available on record. The charges are already extracted above. The disciplinary Authority has appointed the Senior Civil Judge, Hindupur as the Enquiry Oﬃcer. In the material papers ﬁled along with the petition, the report of the Enquiry Oﬃcer is ﬁled. A perusal of the same, would reveal that the petitioner was served with notice before conducting enquiry. But the petitioner has not chosen to participate in the enquiry to put forth his case with regard to ill-health and the inaction on the part of the Sheristadar in placing his leave applications before the Presiding Oﬃcer. On the other hand, in support of the enquiry, P.Ws.1 to 4, who were examined, deposed in one voice that the delinquent is in the habit of absconding from duties without any permission and even submitting any leave application and that he also did not put up his family at the place of his working and further, he also did not give any explanation or respond to number of memos issued to him by the Presiding Oﬃcers of the Courts wherever he worked. Therefore, based on the oral evidence, coupled with documentary evidence, the enquiry oﬃcer who conducted enquiry as per the procedure laid down under Rule 20 of Andhra Pradesh Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991, found the petitioner guilty of all the charges leveled against him. The disciplinary Authority by serving report of enquiry on the petitioner sought explanation, proposing to impose punishment of removal from service. Though the said notice was served on the petitioner, he did not choose to ﬁle his representation. The disciplinary authority after re-appreciating the entire evidence and accepting the report of the Enquiry Oﬃcer, imposed the punishment of removal from service. As the petitioner was found guilty of the charges leveled against him based on evidence, this court cannot interfere with the said ﬁnding of fact under Article 226 of the Constitution of India. 11. The other contention of the petitioner is that even the appellate authority by not considering his explanation, unjustly refused to aﬀord the opportunity by remanding the matter. This contention merits for mere rejection, because of the conduct of the petitioner. The record reveals that for several memos issued by the Presiding Oﬃcers to the petitioner wherever he worked for his unauthorized absence and for dereliction of duties, he did not submit even the minimum explanation that is expected of an employee. Further, though notice was served before conducting enquiry, he did not choose to participate in the enquiry to prove that the charges leveled against him are not true and that he was suﬀering from ill-health and that necessitated him to remain absent and that the Sheristadar was inimically disposed towards him and that he did not place the leave applications before the Presiding Oﬃcer. The petitioner simply remained ex parte and even to the ﬁnal show cause notice issued by the disciplinary authority, he did not choose to submit any explanation. The administrative appeal was also ﬁled with an inordinate delay of 428 days without any suﬃcient reason. It is well settled that the law will come to the rescue of those, who are vigilant about their rights. But as noted above, the petitioner in spite of receiving notices, remained absent and allowed the enquiry oﬃcer to record ﬁndings against him and he also did not choose to submit any representation to the ﬁnal show cause notice issued by the disciplinary authority. In these circumstances, the prayer sought for by the petitioner in the administrative appeal, was rightly not considered by the appellate authority. 12. The other contention of the petitioner is that Note (4) of Fundamental Rule 18 no doubt directs that in all cases of unauthorized absence for a continuous period exceeding one year, penalty of removal from service on the Government Servant shall be imposed, but the said note is made applicable after 18.1.2004 and in the present case, as the petitioner’s absent was prior to the said date, the impugned order passed invoking the said provision, cannot be sustained. In the present case, it is to be noticed that the petitioner was found guilty of unauthorized absence and also for gross negligence and dereliction of duties and for his indiﬀerence towards the work. Therefore, unauthorized absence for more than one year, was not the only charge, but on the grounds of gross negligence and dereliction of duties and for indiﬀerence towards his work, the petitioner was inﬂicted with the punishment of removal from service. It is also to be noticed that the petitioner did not raise this ground in the administrative appeal. In the counter aﬃdavit ﬁled on behalf of the 1 st respondent, it is stated that the even prior to the amendment of Note (4) to Fundamental Rule 18, the Government of Andhra Pradesh has issued instructions under G.O.Ms.No.260 dated 4.9.2003 which are also on the same lines as that of note (4) of Fundamental Rule 18. Hence, in these circumstances, the contention of the petitioner with regard to Fundamental Rule 18 Note (4), cannot be countenanced and is rejected. 13. Coming to the proportionality of the punishment, it is to be seen that the petitioner was unauthorizedly absent for more than one year in diﬀerent spells as found in the enquiry and a further reading of the charges leveled and against the petitioner and the evidence in this regard and the report of the enquiry oﬃcer, which are conﬁrmed by the disciplinary authority and appellate authority, and also by this Court in the writ petition, would speak volumes of the petitioner’s gross negligence and dereliction of duties and his indiﬀerence towards his work. He is simply remaining absent unauthorizedly and by sending telegrams and some times even without any intimation and further whenever he was posted for guard duties, which is very responsible, he simply left the court without even handover the keys and on one occasion, handing over the keys to employee who is not concerned. These are only some of the examples of his dereliction of duties. The employees who are not capable to discharges the duties with utmost dedication and with evasive nature towards duties, have to dealt with iron hand and hence both the disciplinary authority and the appellate authority have rightly imposed the punishment of removal from service and in the light of the present facts and circumstances of the case, the same is perfectly in proportion to the gravity of the charges leveled and misconduct proved against the petitioner. 14. For the foregoing reasons, we do not ﬁnd any merit in the writ petition and the same is dismissed. No costs. ----------------------------------- V.V.S.RAO,J -------------------------------------- G.CHANDRAIAH,J DATE: 19 --09--2008 AVS