THE HON’BLE SRI JUSTICE BILAL NAZKI AND THE HON’BLE SRI JUSTICE M. VENKATESWARA REDDY WRIT PETITION No. 24811 of 1999 Date: 29-12-2006. Between : Smt.K.Swarna Kumari. …..Petitioner And Government of Andhra Pradesh, rep. by its Secretary, Law (Legislative Affairs and J.Courts.C) Department & Others. …..Respondents. For the petitioner : Sri. M.Eswara Prasad, Advocate. For the Respondents: Sri. C.V.Nagarjuna Reddy, Advocate. < Gist: > Head Note: ? CITATIONS: 1. 2001 (3) ALD 625 = 2001 (5) ALT 228 (DB) 2. 2001 (6) ALT 255 (F.B) 3. AIR 1972 SC 2179 4. 1991 Supp (2) SCC 12 5. (2001) 6 SCC 491 6. 1998 SCC (L&S) 1389 7. (1999) 7 SCC 739 8. AIR 2000 SC 22 9. (1992) 4 SCC 54 10. (1993) 2 SCC 56 11. (1995) 6 SCC 749 C/15 THE HON’BLE SRI JUSTICE BILAL NAZKI AND THE HON’BLE SRI JUSTICE M. VENKATESWARA REDDY WRIT PETITION No. 24811 of 1999 Date: 29-12-2006. Between : Smt.K.Swarna Kumari. …..Petitioner And Government of Andhra Pradesh, rep. by its Secretary, Law (Legislative Affairs and J.Courts.C) Department & Others. …..Respondents. THE HON’BLE SRI JUSTICE BILAL NAZKI AND THE HON’BLE SRI JUSTICE M. VENKATESWARA REDDY WRIT PETITION No. 24811 of 1999 ORDER : (Per Hon’ble Sri Justice Bilal Nazki) Before we deal with the case, it will be necessary to make reference to certain developments, which have taken place during the pendency of this case, relating to the questions involved in this case. This writ petition has been filed in the year 1999. The petitioner was compulsorily retired from service by G.O.Ms.No.87, dated 28.05.1999. One of the admitted facts was that the enquiry was conducted by the respondents in accordance with the provisions of Andhra Pradesh Civil Services (Classification, Control and Appeals) Rules, 1963 (hereinafter referred to as ‘the 1963 Rules’). These 1963 Rules were not in force when the enquiry was initiated. On 05.12.1997, a Circular was issued by the High Court, adopting Andhra Pradesh Civil Services (Classification, Control and Appeals) Rules, 1991 (hereinafter referred to as ‘the 1991 Rules’). Additional charges were framed against the petitioner by proceedings dated 06.01.1998. When the matter came up before a Division Bench comprising of the then Chief Justice Mr.Devinder Gupta and Justice M.Narayana Reddy, it noted the submission of the learned counsel for petitioner that prejudice had caused to the petitioner as she was deprived of her rights which she could have availed under the 1991 Rules, therefore, the whole enquiry was bad. The Division Bench’s attention was drawn to another Division Bench judgment of the Court in V.Rajamallaiah v. High Court of A.P[1] and a Full Bench Judgment in V.Venkata Bharani v. High Court of A.P[2]. But the Bench felt that proviso (b) to Rule 45 (1) of the 1991 Rules appears to have not been taken note of by those judgments, therefore, the writ petition was directed to be listed before a Full Bench to consider the question as to the legality and validity of the disciplinary proceedings continued after the 1991 Rules were adopted by the High Court. The matter went to a Full Bench and the Full Bench did not agree with the views of the earlier Full Bench in V.Venkata Bharani’s case (2nd supra) and the Judges of the Full Bench were of the opinion, “We are of the view that the prejudice doctrine cannot be extended to cases where the entire set of applicable rules have been ignored, judicial discipline necessitates the matter being referred to a Larger Bench. Let the matter be placed before the Hon’ble the Chief Justice for constitution of a Larger Bench to decide the question as to whether the prejudice doctrine can be extended to disciplinary proceedings where the applicable rules, in its entirety, has been ignored.” Then the matter went to the Larger Bench. The Larger Bench wrote two opinions; one was written by Smt.Justice T.Meena Kumari for herself and for Mr.Justice A.Gopal Reddy and Mr.Justice R.Subhash Reddy. Concurrent opinion was written by Mr.Justice G.Raghuram and the Court held that Venkata Bharani’s case (2nd supra) was decided in conformity with the consistent view taken by this Court as well as the Apex Court in the matter of disciplinary proceedings and further held that the prejudice doctrine can be extended to the disciplinary proceedings even where the applicable rules, in its entirety, have been ignored. It also laid down, “We answer the reference by declaring that the doctrine of prejudice is generically and in principle applicable even in a context where a departmental inquiry has been conducted wholly under the 1963 Rules though the inquiry was initiated after the coming into force of the 1991 Rules. As to whether relief ought to be granted or declined on a complaint of breach of any one or more of the provisions of the 1991 Rules, the issue must be considered in the factual matrix of each case and on application of the relevant principles gathered from the several precedents including State Bank of Patiala v. S.K.Sharma ((1996) 3 SCC 364).” This is the background in which this case has come up before us again. Petitioner challenges the order of Government passed in G.O.Ms.No.87, dated 28.05.1999 issued under Clause (vii) of Rule 9 of the 1991 Rules. By this order, the petitioner was punished with compulsory retirement from A.P. Judicial Services. The petitioner was appointed as Judicial First Class Magistrate in the year 1985 and was promoted as Subordinate Judge and was functioning as such from 13.11.1991. She assumed charge as Sub-Judge at Rajam in Srikakulam District on 10.09.1996. She states in her petition that on her assumption of charge, there were many irregularities being committed by the employees. She also found there was excess staff and they had been working at the same Station for a long time and had created some vested interests. Some of them were locals and had contacts with clients. She addressed a D.O. letter to the District Judge, Srikakulam to transfer two Clerks, as their services were no longer required at that Court. She had also sought for abolition of the post of ‘Oriya Translator’, as there was no translation work in the Court. Aggrieved by the letters of the petitioner, the Staff Association got provoked and passed a resolution in December 1996 against the petitioner. The District Judge called for her remarks on the resolution and she submitted detailed remarks. The District Judge closed the matter. When another District Judge by name Sri K.Satyanand took charge, he, alongwith the Additional District Judge, Srikakulam, went to Sub-Court, Rajam on a working day and recorded the statements of certain individuals on 21.06.1997. On instructions of the High Court, the entire process department of Munsif Magistrate Court, Rajam was handed over to Sub-Court. She addressed several communications to the District Judge about proper utilization of the excess staff and transfer of some of the staff members, but there was no response. The facts, according to the petitioner, were brought to the notice of the Portfolio Judge also at that time. Since the petitioner was trying to streamline the staff, the staff developed grievance against her. The inaction on her letters emboldened the staff and they started disobeying her orders. She explained these problems through her letter dated 20.10.1997 to the District Judge, Srikakulam. The staff, who got aggrieved, started sending petitions and also circulating press publications against her. Thereafter, it appears that certain communications were sent to the High Court against the Officer and on the basis of those allegations, the High Court, on 19.11.1997, ordered a departmental enquiry against the petitioner and appointed Sri P.Lakshma Reddy, District Judge, Visakhapatnam as Enquiry Officer. The officer was placed under suspension pending enquiry. Subsequently, another communication was issued by the High Court, referring to another complaint dated 01.01.1997 and the District Judge, Visakhapatnam was ordered to frame additional charges. Ten charges were framed by the Enquiry Officer-cum-District Judge, Visakhapatnam against the petitioner on 20.04.1998 and the petitioner was asked to explain. She gave her explanation to the charges denying all the allegations. The Enquiry Officer, according to the petitioner, proceeded with the enquiry without considering her explanation. The Presenting Officer examined 11 witnesses and marked 44 documents. The petitioner on her side, exhibited 4 documents and did not adduce any oral evidence, but filed additional written statement. The Enquiry Officer prepared a questionnaire framing 30 questions. After hearing the arguments, the Enquiry Officer sent his report on 23.09.1998 to the High Court. The Enquiry Officer was of the opinion that all charges except Charge No.5, had been proved and he recommended suitable punishment. The Court, on considering the enquiry report, furnished a copy of the enquiry report to the petitioner to offer her explanation. She offered her explanation on 18.11.1998. Thereafter, the High Court felt that it was expedient to impose the punishment of compulsory retirement and requested the Government to issue necessary orders. Then the Government issued the impugned G.O., compulsorily retiring the petitioner from service. The charges framed against the petitioner were— “Charge No.1 : The Subordinate Judge, Rajam, being the head of office and drawing officer of the pay bills of establishments working in the office is expected to sign, draw and pay the salaries of the Establishments, as per Article 72 of A.P. Financial Code and S.R.7 of T.R.16 of A.P. Treasury Code Volume-I. The bill of process establishment for the month of September, 1997 of Sub Court, Rajam was prepared on 19.9.97 as usual along with other establishment pay bills and placed before the Sub Judge, Rajam for signatures. She has signed the other establishment bills and failed to sign the pay bill relating to Process Establishment. The salaries of process establishment are not received on 01.10.1997, as such the process establishment of Sub Court, Rajam have issued telegram to the Hon’ble High Court of A.P., and District Court, Srikakulam complaining that their salary bills for the month of September, 1997 were not signed by the Sub Judge, Rajam and that therefore, they are starving. They have further submitted separate representation and stated that the Sub Judge, Rajam had intentionally not signed the pay bills keeping in her mind that the Process Establishment staff members had earlier submitted a detailed representation against her for the harassment and ill- treatment towards the staff members. Charge No.2 : On receipt of telegram by the District Judge, Srikakulam, he contacted the Sub Judge, Rajam by phone and ascertained the reasons for not signing the pay bill of Process Establishment for the month of September, 1997. The Sub Judge, Rajam replied to the District Judge, Srikakulam that she had not signed the Process Establishment bill with a view to make the members of the establishment to understand the existence of the Sub Judge, Rajam and without the signatures of the Sub Judge, Rajam, the salary bills cannot be drawn. She further stated in her reply to the District Judge that the bills can be encashed by the staff members even without the signatures of the Drawing Officer, if they are able to get the salaries without her signatures by presenting a bill in the Sub Treasury. Thereupon, the District Judge instructed the Sub Judge on phone that it was not proper on her part in not signing the pay bills of Process Establishment, that since 2.10.1997 was a public holiday, he asked her atleast to sign the bill on 3.10.1997 by 10.30 A.M. immediately after she reaches the Court and see that the bill of the Process Establishment is enchased. This is all happened on 1.10.1997. On the next day i.e. on 2.10.1997 when the District Judge was talking to the Addl. District Judge, Prl. Sub Judge and Addl. Sub Judge, Srikakulam at his residence, the Sub Judge Rajam came at about 1.00 p.m. and after her arrival the Addl. District Judge and Prl. Sub Judge, Srikakulam left and the Addl. Sub Judge, Srikakulam was alone present. The Sub Judge, Rajam complained about the acts of the Staff Members and disobeying her orders. The District Judge, Srikakulam after hearing her further instructed and requested to sign the pay bill of Process Establishment first, immediately on the next day i.e. 3.10.97 by 10.30 A.M., immediately after she attends the office and see that the bill is encashed, for which the Sub Judge, Rajam agreed in the presence of the District Judge, Srikakulam and the Addl. Subordinate Judge, Srikakulam. On 3.10.97 when the District Judge enquired about the encashment of the bill, it was informed that the Pay Bill was not signed by the Sub Judge, Rajam till 3.00 P.M. but she signed only after 3.00 P.M. after the closure of bank transactions. Thus the Sub Judge, Rajam has grossly disobeyed the orders of the District Judge, Srikakulam, caused inconvenience and hardship to the staff members in drawing their salaries in time. Charge No.3 : One Pogiri Pentayya, issued telegram dt.27.10.97 to the District Judge, Srikakulam and also issued telegram on the same day to the Hon’ble Chief Justice, High Court of A.P., Hyderabad complaining that the judgment in Sessions Case No.138/96 on the file of the Asst. Sessions Judge, Rajam was pronounced on 24.10.97 convicting and sentencing the accused for rigorous imprisonment for three years each and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for six months, that the said judgment was not typed till 27.10.97 and the free copies of judgments were not supplied to them. On receipt of the telegram, on 27.10.97, the District Judge, Srikakulam informed the Registrar (Vigilance), High Court of A.P. on phone and proceeded to Rajam and reached there by 5.00 P.M. on 27.10.97. He took along with him Sri M.Govindarao, Head Clerk of his Court for his assistance. Sri K.V.Giridharan, Addl. District Judge, Srikakulam had also accompanied him. By the time they reached and visited the Court of Asst.Sessions Judge, Rajam, the judgment in S.C.No.138/96 was being typed by Sri N.Nagaraju, Steno-typist with reference to the dictation said to have been taken by him in the shorthand notebook maintained by him from 23.10.97. The judgment was typed in 19 pages completely and upto half portion in the 20th page. Immediately, he got seized the judgment and shorthand note books containing the dictation from the possession of the Steno-typist. He made an endorsement in the margin portion of the said judgment to that effect. The Steno- typist in his statement dt.27.10.97 stated that the judgment in S.C.No.138/96 was dictated by the Asst.Sessions Judge, Rajam on 18.10.97 in part and thereafter it was completed by 24.10.97. By the time the judgment in the said case was pronounced on 24.10.97, the judgment was not typed. The Asst.Sessions Judge, Rajam pronounced the judgment on 24.10.97 by getting the result portion typed on the docket sheet. She had not signed in the shorthand notebook on 24.10.1997, or subsequently. The District Judge, Srikakulam has further stated that the original incomplete judgment and the shorthand note book and other records seized by him were brought to District Court, Srikakulam. Sri P.Prasadarao, Head Clerk, Sub Court, Rajam who was dealing with the branch of Sessions Cases had also given a statement of facts on the above aspects and other aspects touching the harassment meted out to the staff members by the Subordinate Judge, Rajam. After seizure of the records and the judgment Sri N.Nagaraju, Steno-typist represented to the District Judge that the dictation of Judgment in O.S.7/96 was also taken down in the same shorthand note book maintained from 23.10.97 and the said suit was posted for judgment to 28.10.97 and as the same was not yet typed, he requested to return that book for purpose of typing the judgment in suit which is to be pronounced on 28.10.97. As such, the shorthand notebook commencing from 23.10.97 was returned to the Steno-typist so as to enable him to transcribe the judgment in O.S.7/96 under proper acknowledgment and with a direction to handover the shorthand notebook to the District Court intact without any modifications on 28.10.97. Accordingly, the Steno-typist produced the shorthand notebook on 28.10.97 before the District Judge, Srikakulam. Thereupon, the District Judge instructed the steno-typist to complete the remaining portion of the judgment in Sessions Case No.138/96 from page No.20 upto which it was typed previously, at the District Court, Srikakulam itself and accordingly he has completed the typing of the judgment and delivered to the District Judge, Srikakulam. The District Judge further stated that he perused the record in Sessions Case No.138/96 produced by Sri P.Prasada Rao, Head Clerk and he observed that the accused 1 to 49 were convicted and sentenced to suffer rigorous imprisonment for 3 years each and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for six months and the said sentence was suspended till 4.11.97 as per order dt.25.10.97 in Crl.M.P.Nos.230/97 and 231/97 on the file of Asst. Sessions Judge, Rajam, that he felt that the original judgment in S.C.No.138/96 dt.24.10.97 has to be retransmitted to the Asst. Sessions Judge, Rajam for preparing copies of judgment and supplying them to the accused as otherwise the accused would be put to hardship. He has therefore, transmitted the complete judgment (not signed by the Asst. Sessions Judge, Rajam) in his proceedings Dis.No.5911 dt.28.10.97 to the Asst. Sessions Judge, Rajam, so as to enable her to supply copy of judgments to the accused. Thus, the accused were deprived of getting free copies of judgments on the date of pronouncement of judgment, on 24.10.97 as per the provisions of Criminal Procedure Code and they were put to hardship. Charge No.4 : The Government of A.P., in their memo No.26444-A/500/A.2/FR.I/97 dt.10.7.1997 have extended facility to the State Government employees to surrender earned leave before 31.8.1997 those who have leave title of 240 days. Sri S.Suryam, Amin, one of the eligible candidates has applied by submitting an application on 13.8.1997 with a request to sanction permission to surrender earned leave for 15 days from 16.8.97 to 31.8.97 in terms of the said Govt. Memo. A rough calculation sheet of leave account of the said Amin was prepared by the Head Clerk and in-charge Sheristadar as per the instructions of the Sub Judge, Rajam and found entitled to get the benefit. A letter dt.26.8.97 addressed to the District Judge, Srikakulam forwarding the leave application of Sri B.Suryam, Amin was prepared and placed before the Sub Judge, Rajam for signature. The Sub Judge, Rajam had deliberately not signed the letter keeping in view that the said Amin is one of the petitioners in a petition sent against the Sub Judge, Rajam. As the letter was not signed and the leave application was not forwarded, the Amin lost the benefit of surrender of earned leave though he is entitled to. Charge No.5 : Ten staff members of Sub Court, Rajam have applied to the District Judge, Srikakulam requesting to accord permission to surrender earned leave for 15 days from 17.10.97 to 31.10.97 for encashment. The District Judge, Srikakulam in his proceedings Dis.No.5751 dt.21.10.97 was pleased to accord permission to them to surrender earned leave as per their request. A bill for Rs.18,920/- was prepared in pursuance of the proceedings of the District Judge and the said bill was signed by the Sub Judge, Rajam on 27.10.97. A.P.T.C. Form No.101 in support of the said bill was also signed by the Sub Judge, Rajam. Having signed the bill and A.P.T.C. Form No.101, the Sub Judge, Rajam had deliberately made an endorsement on the bill as to how the members are entitled to house rent allowance and stopped the presentation of the bill. Subsequently, she made an endorsement on the said bill on 31.10.97 to the effect that the bill was cancelled. The Staff Members who are affected with the irrational act of the Sub Judge, Rajam complained to the District Judge, Rajam on 27.10.97 when he visited Rajam. The act of the Sub Judge, Rajam in not presenting the bill even though the District Judge, Srikakulam accorded sanction with a view to cause harassment and loss to the staff members, for extraneous reasons. Charge No.6 : The annual increment of Sri N.Chandra Sekhara Rao, Process Server, Sub Court, Rajam was sanctioned on 12.8.97. An arrear increment bill was prepared for Rs.95/- along with necessary enclosures such as increment certificate and A.P.T.C. Form No.101. The Sub Judge, Rajam has not signed the bill though she sanctioned the increment due to the individual for the reason that the said process server is one of the petitioners in the petition sent against the Sub Judge, Rajam. The act of the Sub Judge, Rajam betrays the vindictive attitude against the said staff member. Charge No.7 : The annual increments of the following staff members, Sub Court, Rajam are due on the respective dates of accrual; 1. Sri B.T.Rangarao, Oriya Translator. 2. Sri M.Gopala Rao, Process Server. 3. Sri A.Trinadha Rao, Process Server. 4. Sri N.R.Gopalakrishna, Attender. 5. Sri M.Polayya, Process Server. 6. Sri D.Srinivasu, Examiner. 7. Sri V.V.Adinarayana, Amin. 8. Sri P.Prasadarao, Head Clerk. It is clearly envisaged in Rule 24 of Fundamental Rules, that an increment to the Govt. employees shall be sanctioned as a matter of course unless such increments are withheld or postponed by the competent disciplinary authority. Though there are no such orders, the Sub Judge, Rajam had deliberately not sanctioned the increments to the above staff members though necessary proposals were placed by the Chief Ministerial Officer, with a view to cause hardship to the Staff members for the extraneous reasons and for the reason that they have submitted petitions against her. Charge No.8 : Sri K.T.N.Prabhu, Typist, Sub Court, Rajam proceeded to Srikakulam on official duty on 26.5.97, 30.5.97 and on 3.6.97 as per the instructions of the Chief Ministerial Officer to obtain signatures from the in-charge officer on urgent correspondence and other matters. Two T.A. Bills for the months of May and June, 1997 of the individual were prepared and placed before the Sub Judge, Rajam along with a covering letter addressed to the District Judge, Srikakulam for signatures. The Sub Jude, Rajam has neither signed the T.A. Bills nor forwarded them to the District Judge, Srikakulam, thereby the individual lost his claim of T.A. though he incurred expenditure for the official journeys he performed in connection with the official duties. The Sub Judge, Rajam thereby committed misconduct and caused loss to the individual for the reason that the T.A. claimant had not acted as per the wishes of Sub Judge, Rajam. Charge No.9 : The Hon’ble High Court of A.P., Hyderabad issued circulars from time to time for deposit of P.D. Account amounts in various Nationalized banks in the shape of F.D.Rs. Accordingly, the deposits made in various L.A.OPs., and other proceedings were invested in various banks in Rajam, by the Sub Judges, who acted prior to Smt.K.Swarna Kumari. Smt.K.Swarna Kumari, Sub Judge, Rajam during her period had withdrawn the deposits for no valid reasons, kept the amounts in P.D.Account for some time and again reinvested in some other banks different of their originally invested banks. One of the Bank employees sent up unsigned complaint to the Hon’ble High Court stating that the Sub Judge, Rajam requested to arrange vehicle for her tour and they could not arrange the vehicle. The Sub Judge, Rajam withdrawn the deposits from their Bank even at immaturity stage and reinvested in some other banks. The act of the Sub Judge, exfacie supports the allegations set out in the complaint petition sent by some of the bank officials to the Hon’ble High Court. The former District Judge, Sri K.C.Bhanu on receipt of the complaint petition from the Hon’ble High Court, caused investigation about the deposits and reinvestments and he submitted a detailed report to the Hon’ble High Court from which it is prima facie found that the Sub Judge, Rajam acted derogatory to the prestige of the office which amounts to misconduct. Charge No.10 : Sri P.Prasadarao, Head Clerk and in charge Sheristadar, Sub Court, Rajam submitted a statement of