THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.16731 of 2008 Date of Order : 17-02-2010 Between: K.Venkata Srinivasa Rao ..Petitioner and 1. High Court of A.P. rep. by its Registrar (Admn.), High Court Buildings, Hyderabad and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.16731 of 2008 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. This is an application filed under Article 226 of the Constitution for issuing a writ of Certiorari after calling the records relating to and connected with orders in DE No.4/2007, dated 15-02- 2008 of the Principal District & Sessions Judge, Nellore—2nd respondent and to quash the same. 2. The petitioner, who was working as Junior Assistant in the Court of Senior Civil Judge, Kovvur, was transferred to the Court of Junior Civil Judge, Sullurpeta; accordingly he joined in the new station on 25-12-2005. While so, he applied leave from 27-12-2005 to 16-01- 2006 and reported to duty at Sullurpeta on 17-01-2006, where he was served with movement order to report to duty before the Junior Civil Judge, Venkatagiri. Complying the said order the petitioner reported to duty at Venkatagiri and worked there till 25-03-2006 where he applied casual leave for three days from 27-03-2006 to 29-03-2006 and extended till 28-06-2006. While so, on 30-06-2006 the 2nd respondent issued a charge memo to the petitioner containing the following two charges: “Charge No.1 That you Sri K.V.Srinivasa Rao, Junior Assistant, Junior Civil Judge’s Court, Venkatagiri, applied leave from 27-03-2006 to 29-04-2006 and extended leave upto 28-06-2006 on flimsy grounds and also with medical certificates which are not proper, only after your transfer to Junior Civil Judge’s Court, Venkatagiri with a view to disobey the orders of the undersigned which act committed by you if proved or established would amount to dereliction of duties of Rule 3-(b)(e)(f)(vi) and (i) of Andhra Pradesh Civil Services (conduct Rules, 1964 (I.e. negligence, lack of integrity, lack of devotion to duty and having unbecoming conduct of a government servant). Charge No.2 That you Sri K.V.Srinivasa Rao, Junior Assistant, Junior Civil Judge’s Court, Venkatagiri, applied leave from 27-03-2006 to 29-04-2006 and extended leave upto 28-06-2006 on flimsy grounds and also with medical certificates which are not proper, only after your transfer to Junior Civil Judge’s Court, Venkatagiri and thereby willfully absented from duty after expiry of joining time which act if proved or established would amount to misbehaviour towards the orders of the undersigned and violation of Fundamental Rule 108. “ 3. The petitioner submitted a detailed explanation dated 15-08- 2006 to the said charge memo. Not satisfied with the same, the 2nd respondent appointed I Additional District Judge, Nellore District as Enquiry Officer, who after completion of enquiry submitted his report, on accepting the report of Enquiry Officer, respondent No.2 passed an order dated 13-06-2007 imposing punishment of compulsory retirement from service. Questioning the correctness of the same the petitioner filed W.P.No.12941 of 2007. While the petitioner was facing Departmental Enquiry No.9/2006, a complaint was received on 26-12-2006 from one Dr.B.Rama Rao to the effect that the petitioner was indulged in corrupt practices of trading in the name of the Court and the Officer for providing a job, and collected money in the name of the District Judge at Machilipatnam. In view of the said complaint the following charge has been framed against the petitioner: “That you Sri K.V.Srinivasa Rao, Junior Assistant, presently posted at Venkatagiri while working as Junior Assistant at Nellore has indulged a grave corrupt misconduct by using the name of the District Judge and made Dr.B.Rama Rao, Children Specialist who is known to you to believe that you will secure employment to one L.Bhaskar, an S.C. candidate who is known to him if a sum of Rs.2,50,000/- is paid. You also made representation to him that the District Judge at Krishna District Sri T.Anjaneyulu is known to you and your wife also got employment and you also furnished the local residential address for the application of Basker and collected a sum of Rs.11,200/- on 3-7-2004, Rs.8,800/- on 7-8-2004 and Rs.7,000/- on 17-8-2004 from Dr.B.Rama Rao and in your own handwriting, you have written on his prescription slip by disguising yourself in a different name. You also gave a slip of your residential address in your own handwriting. Having obtained the said amounts, you failed to secure the job and you also failed to return the amount taken by you and the above conduct of you in indulging in criminal activities and conduct unbecoming of a Government servant is misconduct as defined under the Andhra Pradesh Civil Services (Conduct) Rules, 1964.” 4. The petitioner submitted a detailed explanation for the said charge denying acquaintance with the Doctor or his involvement in the said illegal activity. Further, he attributed that the compliant is an offshoot of the allegations made by him against the District Judge in D.E.No.9/2006 and also in the compliant, and wanted the enquiry to be conducted outside the District. In view of the above request of the petitioner, the District Judge addressed a letter to the High Court requesting the latter to transfer the enquiry to other district. The High Court by proceedings dated 16-03-2007 directed that the Principal District Judge—2nd respondent to take action in the matter and refrain from shirking his responsibility and directed him to take appropriate action in the two disciplinary matters relating to the petitioner in accordance with law. 5. On receipt of said proceedings from the High Court, the 2nd respondent appointed Sri B.Sivanagi Reddy, II Additional District Judge-cum-Special Judge for SPE & ACB Cases as Enquiry Officer, who after inquiring into the alleged misconduct submitted his report vide Dis.No.520/2007, dated 03-09-2007 holding that the charged officer (petitioner) induced P.Ws.1 and 2 to give money to him with a promise that he will provide a job to P.W.2 stating that himself and his wife are having influence with Sri T.Anjaneyulu, the then District Judge, Krishna District at Machilipatnam, and he (petitioner) also received a sum of Rs.27,000/- under Exs.B3 and B5 from P.W.1. As the charged officer did not provide job to P.W.2, P.W.1 was forced to repay the entire amount of Rs.2,50,000/- to P.W.2. Thereafter, the charged officer did not repay the said amount of Rs.27,000/- to P.W.1, in spite of repeated requests by P.W.1. Due to the above conduct of the charged officer in indulging in criminal activities like misappropriation of amount of others, and a conduct unbecoming of a Government Servant, is misconduct as defined under Section 3(2) of A.P. Civil Service (Conduct) Rules, 1964. The conduct and behaviour of the charged officer is derogatory to the prestige of the Government and unbecoming of a member of staff of judiciary. Therefore, charge framed against the charged officer is proved. 6. The 2nd respondent—disciplinary authority after receipt of the report of the Enquiry Officer dated 03-09-2007, furnished the same to the petitioner with a show cause notice dated 07-09-2007 as to why he should not be dismissed from service for his proved misconduct. The petitioner submitted explanation and objections to the findings of the Enquiry Officer. The disciplinary authority after analyzing the findings of the Enquiry Officer and explanation offered by the petitioner by impugned proceedings dated 15-02-2008 came to the conclusion that the findings of the Enquiry Officer are based on evidence of P.Ws.1 and 2; and in spite of opportunity given to the petitioner at all stages he failed to avail the same; in view of the same, the Enquiry Officer conducted ex-parte enquiry; none of the objections raised by the petitioner that principles of natural justice are violated can be accepted, as the petitioner himself wantonly and voluntarily failed to participate in the enquiry and all his excuses for non-appearance are inventions for the purpose of record to agitate at a later stage having all experiences in enquiries of this nature; and since the past conduct of the petitioner, as per the service record, also discloses that departmental enquiry was initiated in D.E.No.9/2006 and the petitioner was compulsorily retired from service for the proved misconduct, and though the gravity of the charges and misconduct warrants severe punishment of dismissal or removal from service, since the petitioner has put up 20 years of service, punishment of retirement will meet the ends of justice and accordingly ordered for compulsory retirement from service. 7. Questioning the said order the present writ petition has been filed complaining that the 2nd respondent—disciplinary authority developed animosity against the petitioner, since the marriage proposals mooted by the District Judge with the petitioner to marry his 2nd sister is not acceptable to the petitioner and his family members while the District Judge was working as Junior Civil Judge in Nellore in the year 1983. The present disciplinary action has been initiated to take vengeance for the petitioner turning down to marry the District Judge’s sister, who is suffering with neurological problem. The proceedings initiated by the 2nd respondent in the charge memo dated 30-06-2006 and another charge memo dated 29-12-2006 are only personal bias developed by the 2nd respondent, who was the disciplinary authority. Earlier, the petitioner filed W.P.No.12941 of 2001 challenging the compulsory retirement imposed in D.E.No.9/2006 impleading the third respondent herein as third respondent to the said writ petition with the same allegations raising personal bias and motive. This Court allowed the said writ petition on 11-06-2008 setting aside the punishment order dated 13- 06-2007 and remitted the matter to the disciplinary authority for consideration afresh. Only after noticing the allegations made by the petitioner in the affidavit filed in support of the writ petition, the disciplinary authority became more furious and thus directed the Enquiry Officer to conclude the enquiry quickly, and passed orders on 15-02-2008 imposing again the punishment of compulsory retirement. The Enquiry Officer before submitting his report has not given sufficient time to the petitioner to participate in the enquiry on the ground that the disciplinary authority fixed the time limit to complete the enquiry and the adjournment sought on genuine grounds was rejected. The Enquiry Officer recorded the statements of witnesses i.e. complainant —Dr.B.Rama Rao and L.Bhaskar—P.W.2 for whom the alleged promise of providing employment was made, behind his back. In spite of pointing out the said defects in the explanation submitted by the petitioner on 20-09-2007, the disciplinary authority has not carefully considered the same and passed the impugned order, which is liable to be set aside. Further, a bare look of the compliant made by the Doctor—P.W.1, which resulted in initiation of disciplinary proceedings, shows that the petitioner has received an amount of Rs.27,000/- in three spells and it also discloses that P.W.1 has received an amount of Rs.2,50,000/- from P.W.2 for the purpose of securing employment in Krishna District; whereas the petitioner contends that he being the employee of Nellore District no way connected with Krishna District nor have any access to any person in Krishna District. All these facts were not taken into consideration by the disciplinary authority while passing the impugned order. Relying on the past misconduct for imposing penalty is a deliberate attempt to booster his decision; there was no charge for most of the punishments imposed as mentioned in the impugned order during the period when respondent No.3 worked in Nellore District. Therefore, the impugned order passed by the disciplinary authority is liable to be set aside. 8. The 2nd respondent filed a counter, basing on the record, stating that the in-charge officer to the post of Principal District & Sessions Judge received a complaint against the petitioner on 26-12- 2006, Nellore but not by the 3rd respondent. When the writ petitioner came up with a request to transfer the departmental enquiries, an authority outside the Nellore District, the then District Judge, Nellore addressed a letter to the High Court on 14-02-2007. Subsequently the High Court through D.O.Letter No.300/2007-Vigilance Cell, dated 16- 03-2007 directed the District Judge to take action in accordance with law in the matter and refrain from shirking his responsibilities and also directed to take appropriate action in the two disciplinary matters. The petitioner, who has not evinced any interest in participating the departmental enquiry or in cross-examining the witnesses to prove his innocence, now cannot plead violation of principles of natural justice. Further, on petitioner making a representation dated 20-04-2007 to transfer the enquiry to any other district, the High Court in ROC No.786/2007-Vigilance Cell, dated 13-07-2007 rejected his request for transfer and communicated the same to him. When ample opportunity was given to the petitioner to defend his case, he cannot plead violation of principles of natural justice. The enquiry was conducted in accordance with the procedure. P.W.2—L.Bhaskar having received the summons did not appear and thereafter, he was produced on warrant and deposed against the petitioner. Before inflicting the punishment a show cause notice was issued to the petitioner and the same was served on him on 07-09-2007 to which the petitioner submitted his explanation on 20-07- 2007, which was received on 24-07-2007, and final orders were passed on 15-02-2008 imposing punishment of compulsory retirement from service. The entire enquiry was conducted in accordance with the provisions of law and it is not an ex-parte order, as contended by the petitioner, to attract Rule 20 of Andhra Pradesh Civil Services (Conduct) Rules, 1964. 9. The 3rd respondent filed a detailed counter traversing the allegations levelled against him specifically denying about offering his sister for marriage to the petitioner and consequent of failure prejudice said to have been developed by him. In the earlier writ petition filed by the petitioner i.e. W.P.No.12941 of 2007 similar allegations were levelled, he specifically denied that there is no sister of marriageable age with the petitioner and the said allegation is totally false. It was further stated that his sister was born in the year 1953, whereas the petitioner was born in the year 1961, as per the service records. By the time of alleged proposal when he was working in Nellore in the year 1985-86 his sister was already married and she was blessed with one son and daughter and she has no neurological problem, which clearly shows the ingenuity of the petitioner for fabricating a fact was failed and asserted that none of his sisters are marriageable age with the petitioner. The allegation that the 2nd sister of the 3rd respondent continued to live with the parents is also falsity, since she has been staying with her husband at Hyderabad, her husband was employee and her daughter was also married. 10. Learned counsel for the petitioner contends that the Enquiry Officer failed to give fair and reasonable opportunity to the petitioner and proceeded with the enquiry ex-parte. The petitioner sent a telegram requesting the Enquiry Officer to adjourn the matter, but the same has not been considered. Once the compulsory retirement inflicted in D.E.No.9/2006, dated 13- 06-2007 has been set aside by the High Court in W.P.No.12941 of 2007, again referring the same for imposing punishment of compulsory retirement is not at all warranted and the same is liable to set aside. The entire story of the petitioner collecting money for providing employment is falsely created which is evident from the fact and admittedly, notification was issued by the District Judge, Krishna District on 09-02-2004 whereas P.W.2 applied for the post on 21-02- 2004 disclosing the temporary address at Machilipatnam. Therefore, petitioner has no acquaintance with P.W.1—Doctor and his promising to provide job to PW2 does not arise. The disciplinary authority has not taken the said fact into consideration for imposing major penalty. Further, documents—Exs.P1 to P7 marked by the Enquiry Officer and the signature on them was denied by the petitioner, which has not been taken into consideration by the disciplinary authority while passing the impugned order. 11. Admittedly, the Enquiry Officer stated that on receipt of notice, the charged officer appeared before him on 04-04-2007 and filed a memo for furnishing copies of documents and also filed a requisition seeking permission to appoint an advocate. The same was forwarded to the disciplinary authority, who rejected the request of the charged officer by proceedings dated 05-04-1997 stating that the petitioner is experienced in defending himself as he faced nearly 10 enquiries and most of them are conducted by him and further Presenting Officer is not a legal practitioner. For the documents sought by the petitioner through memo dated 04-04-2007, it was stated that as per the index sheet all the documents, Exs.P1 to P4, were furnished to the petitioner on 22-01-2007. When the matter was taken up for enquiry on 11-05-2007, the petitioner was present and submitted an application to transfer his enquiry to other district and requested time till 12-06-2007. After issuing summons to P.W.1—Dr.B.Rama Rao, Children Specialist, Chinna Bazar, the matter was posted to 23-06- 2007 to which date the petitioner was absent and sent a telegram dated 22-06-2007 stating that he came to High Court to attend W.P.No.12941 of 2007 and requested to adjourn the enquiry by 15 days from 23-06-2007, which happens to be Saturday. Since the witness was already present on issuing the summons, he was examined as P.W.1. Thereafter, summons was issued to P.W.2 posting the enquiry to 06-07-2007 and a request was made to the disciplinary authority seeking extension of time. On 06-07-2007 the petitioner was absent and the Presenting Officer was on leave. P.W.2 though served with summons was not present; hence, bailable warrant was issued against him, posting the matter to 28-07-2007, on the said date the Enquiry Officer was on leave. So, the matter was posted to 04- 08-2008. On the said date i.e. 04-08-2008 fresh bailable warrant was issued to P.W.2 fixing the date of hearing on 25-08-2007, and notice to the said effect was also issued to the petitioner about the date of adjournment informing that in future no such notices will be sent to him and he has to appear before the Enquiry Officer and enquire the dates of adjournments. The said notice was served on the petitioner, but he failed to appear on the said date and sent a telegram stating that he is suffering from Jaundice and taking treatment at his native place and that the Doctor advised him to take rest upto 07-09-2007, he cannot move from the bed and sought for adjournment of the case after 07-09- 2007. Since the petitioner was uncooperative from the beginning, the enquiry officer turned down the said request and after marking relevant documents he submitted the report. On submission of the report, a show cause notice was issued to the petitioner enclosing copy of the report of the Enquiry Officer, for which the petitioner submitted his explanation. The disciplinary authority after considering the explanation and also the proceedings of the Enquiry Officer rejected the contention of the petitioner that the Enquiry Officer has not given a reasonable opportunity to defend himself holding that the petitioner himself has to blame for his uncooperative attitude in completing the enquiry and proving his innocence before the Enquiry Officer. The disciplinary authority came to the conclusion that in view of gravity of the charges and misconduct committed by the petitioner, punishment of dismissal or removal from service has to be awarded, but having regard to the fact that the individual has put up 20 years of service, ordered compulsory retirement from service. 12. From the above it is evident that the Enquiry Officer followed the procedure for conducting enquiry and submitted his report. Therefore, the contention of the petitioner that the enquiry is irregular cannot be accepted, in view of various dates of enquiry, as referred to above. Further, the contention of the petitioner that documents Exs.P1 to P7 sought by him are not provided is devoid of merit, when the documents sought to be marked the petitioner either present and cross-examine P.Ws.1 and 2 through whom the said documents were marked or made any request for supply of such documents. The allegation of personal bias made against the 3rd respondent was specifically denied by him (R3), which has not been controverted by the petitioner by filing any reply and deemed to have been accepted, stands unrebutted. 13. Further we do not see any merit in the contention of the petitioner that the disciplinary authority should not have referred the earlier misconduct, which was not mentioned in the charge sheet. 14. The Supreme Court in GOVT. OF ANDHRA PRADESH v. MOHD. TAHER ALI[1] categorically stated there can be no hard and fast principle that merely because the earlier misconduct has not been mentioned in the charge sheet it could not be taken into consideration. Consideration of the earlier misconduct is often only to reinforce the opinion of the disciplinary authority in justifying his conclusion. 15. Even in the earlier W.P.No.12941 of 2007 filed by the petitioner he attributed personal bias against the 3rd respondent, but not in the manner as he dealt with now. This Court has not accepted the same and set aside the order passed in D.E.No.9/2006 dated 13-06-2007, imposing compulsory retirement of the petitioner, on the ground that show cause notice dated 02-06- 2007 gives only 9 days time to the petitioner; at pages 5, 7, 8 and 10 to 16 of the enquiry report there are additions, interpolations and extrapolations, which have not been authenticated by initials of the Enquiry Officer. It is doubtful whether the petitioner, who is a Junior Assistant, can submit an effective explanation to enquiry report in which large number of documentary evidence was considered by the Enquiry Officer and since the petitioner has not given adequate opportunity to defend himself at the final stages of enquiry, remitted the matter to the District Judge (R3) to pass appropriate orders, after receipt of explanation. The disciplinary authority after carefully considering the findings of the enquiry officer, the explanation submitted by the petitioner to the said findings and taking into consideration the past misconduct passed the impugned order inflicting punishment of compulsory retirement from service, which do not warrant interference. 16. In view of the same, we see no merit in any of the contentions urged by the petitioner in the writ petition and it is accordingly dismissed. No order as to costs. ________________ A.GOPAL REDDY, J. _____________________ VILAS V.AFZULPURKAR,J. 17-02-2010 Murthy [1] (2007) 8 SCC 656