THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.24713 OF 2010 01-02-2011 Between: The State of AP, rep. by its Prl. Secretary to Govt.,Animal Husbandry, Secretariat, Hyderabad and another. ……….Petitioners And Dr.S.K.Shamsuddin and another. ………Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.No.24713 OF 2010 ORDER : (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed by the State challenging the order dated 23-07-2009 in O.A.No.1069 of 2004 on the file of the A.P. Administrative Tribunal, Hyderabad (for brevity the ‘Tribunal’) and to quash the same as erroneous and contrary to law. 2. The 1st respondent is the applicant and the petitioners are respondents 1 and 2, respectively, in O.A.No.1069 of 2004. 3. For the sake of convenience, the parties herein after are referred to as they are arrayed in O.A.No.1069 of 2004. 4. Brief facts of the case are that the applicant was initially appointed as Veterinary Assistant Surgeon (VAS), Animal Husbandry Department, in the year 1971, and subsequently, transferred to the Municipal Corporation of Hyderabad, on deputation basis. While he was working with the Corporation, certain allegations with regard to dereliction of duties were made against him, and accordingly, he was repatriated to the parental department, and consequently transfer orders dated 06-01-1989 were also issued directing him to join in Nalgonda District. But the applicant violated the Rules and Regulations in vogue and he himself assumed the charge of the post of VAS Giaguda Slaughter House, Municipal Corporation of Hyderabad in the vacant post of Assistant Director, Giaguda Slaughter House on 17-05-1990. The applicant was issued charge memo, dated 21-02-1991, however, since the charge memo was not served on the applicant as his whereabouts are not known it was published in the A.P. Gazette, dated 21-11-1991. Ultimately, charges were proved and enquiry report was furnished to the Government for imposing penalty against the applicant. Later, the applicant was posted at Animal Health Centre, Mahabubnagar, vide proceedings dated 24-02-1991. There also, the applicant did not join duty till sometime, and later joined and immediately applied casual leave for one day and did not turn-up. Hence, he has been absconding from duty from 01-03- 2000 onwards without obtaining any prior permission. Further, produced G.O.Ms.No.32, dated 30-03-1993, stating that he was promoted to the post of Chief Veterinary Officer, Hyderabad. Hence, the applicant was again issued charge memo alleging that he violated Rule 4 (1) of APCS (Conduct) Rules, 1964 without joining at Mahabubnagar and defied the orders of the Head of the Department of Animal Husbandry and that he produced a false G.O.Ms.No.32, dated 30-03-1993. After completion of enquiry and the charges framed against the applicant were proved, the authorities concerned came to the conclusion and decided to remove the applicant from service. Accordingly, vide proceedings dated 29-04-2003, the respondent- authorities removed the applicant from service. Challenging the order dated 29-04-2003, the applicant filed the present O.A.No.1069 of 2004 before the Tribunal contending that the impugned order was communicated to him on 04-05-2003 i.e. after the date of his retirement 30-04-2003, and that the enquiry officer has not taken into account the explanation offered by the applicant on 16-05-1995 and 12-06-1995. Hence, he prayed to quash the order dated 29-04-2003 and direct the respondents-authorities to release the pension and other retirement benefits and also award interest for balance payments, etc., The Tribunal allowed the O.A. holding that charges framed against the applicant do not relate to misappropriation of any amount and it is only with respect to the absence of duty due to various circumstances, and consequently, directed the respondents-authorities to treat the period of absence as leave and the remaining period as dies non and also directed them to release pension and all other benefits, within a period of eight weeks from the date of receipt of a copy of that order. Aggrieved by the same, the State approached this Court and filed the present writ petition. 5. Heard the learned Government Pleader for Services-I, appearing for the petitioners as well as the learned counsel for the 1st respondent and perused the impugned order. 6. The learned Government Pleader for Services-I contended that the applicant failed to report duty and absconded from duty without any intimation or obtaining any prior permission and that the charges framed against him were proved and enquiry report was also furnished to the Government. After considering all the aspects, the petitioner was removed from service by order dated 29-04-2003 and it needs no interference either by the Tribunal or by the High Court. Hence, the impugned order passed by the Tribunal is not sustainable under law, and therefore, the same may be set aside. 7. Per contra, the learned counsel for the 1st respondent contended that the removal order, which is a major punishment, ought not to have been imposed since there was only a mis-conduct on the part of the applicant, and therefore, the punishment is highly disproportionate. Apart from that the department failed to serve the charge memo and the impugned proceedings on the applicant before the date of his retirement i.e. 30-04-2003, and therefore, he could not defend himself to put forth his case. He further contended that the findings arrived at by the petitioners-authorities are based on no evidence and there is a clear perversity in the order dated 29-04-2003 passed by the petitioners. Therefore, he prays that the removal order needs interference by this Court and confirm the impugned order passed by the Tribunal. 8. Admittedly, the 1st respondent was appointed as Veterinary Assistant Surgeon and when the orders were issued transferring him to Nalgonda, he did not join duty and he himself assumed charge in the Municipal Corporation of Hyderabad. Later, he also defied the subsequent transfer orders posting him to Mahabubnagar District. Further, after jointing at Mahaboobnagar, he absconded from duty with effect from 01-03-2000 by applying one day casual leave and caused dislocation of work. Considering all these aspects, and after conducting enquiry and perusing the report, the petitioners authorities removed the 1st respondent from service. 9. However, the learned counsel for the 1st respondent contended that the allegation made against the 1st respondent is only a mis-conduct, hence, the punishment imposed by the authorities concerned is disproportionate. Therefore, it needs interference by this Court. With regard to the jurisdiction of this Court for interference with the disciplinary proceedings, the Apex Court in its judgment in Bhagat Ram Vs. State of Himachal Pradesh[1], held as follows: “A High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief. In case of a dismissal, Article 21 gets attracted, and, in view of the interdependence of fundamental rights, the punishment/penalty awarded has to be reasonable, and if it be unreasonable, Article 14 would be violated. If Article 14 were to be violated, a High Court can take care of it same by substituting, in appropriate cases, a punishment deemed reasonable by it.” 10. So far as the quantum of punishment imposed by the authorities based on any departmental enquiry is concerned, the punishment must be proportionate to the gravity of misconduct and it would not be excessive since it is violative of Article 14 of the Constitution of India. In Bhagat Ram Vs. State of Himachal Pradesh and Others[2], the Apex Court held as follows: “10. …….. In a petition under Article 226, the High Court does not function as a Court of appeal over the findings of Disciplinary Authority. But where the finding is utterly perverse, the court can always interfere with the same. We may refer in this connection to Union of India v.H.C. Goel (AIR 1964 SC 364). Gajendragadkar, J. speaking for the Court observed as under: “It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal is based on no evidence. (emphasis supplied) The brief facts of that case are that the appellant was a Forest Guard. One ‘K’, whose private land fell within the area covered by the beat of the appellant, cut and felled 21 trees in that area. An enquiry was held in which it was found that out of 21 trees, 17 were in forest land and four were in the private land of ‘K’. ‘K’ paid compensation for the illegal felling of trees stating that he felled the trees bona fide believing that the trees were standing on his private land. Thereafter, a joint disciplinary enquiry was initiated against the appellant and his Block Officer ‘D’ on the following charges framed against each of them; (1) illicit felling of trees causing loss to the Government; (2) negligence in the performance of government duty and (3) doubtful honesty. Ultimately, the Enquiry Officer, after considering the appellant’s explanation confirmed the penalty of removal. The appellant filed a writ petition under Article 226 which was dismissed in limini. In the appeal, the Supreme Court, while allowing the appeal and ordering reinstatement of the appellant in service, held as follows: “12. In the facts and circumstances of this case herein threadbare discussed, we are of the opinion that the appellant was not afforded a reasonable opportunity to defend himself and accordingly the enquiry and consequential order of removal from service are vitiated. 13. That conclusion poses another question as to what relief we should give in this appeal. Ordinarily where the disciplinary enquiry is shown to have been held in violation of principle of natural justice, the enquiry would be vitiated and the order based on such enquiry would be quashed by issuance of a writ of certiorari. It is well settled that in such a situation, it would be open to the Disciplinary Authority to hold the enquiry afresh. That would be the normal consequence. 14. We invited Mr Talukdar, learned counsel for the respondent State to address us on the question whether the game of holding the fresh enquiry is worth the battle. More so looking to the fact that there is a very minor infraction of duty leading to a trivial charge of negligence in performance of duty which has caused no loss to the Government, we are of the opinion that it would not be fair to this low-paid Class IV government servant to face the hazards of a fresh enquiry. 15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held? After all what is the purpose of holding a fresh enquiry? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela v.A.K. Roy (1969 (3) SCC 513, where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal. It is possible that on such a remand, this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair to or conducive to the interest of the parties. This Court in such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach. Keeping in view the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50 percent of the arrears from the date of termination till the date of reinstatement.” (emphasis supplied) From a perusal of the above case, it is clear that there is a very minor infraction of duty leading to a trivial charge of negligence in performance of duty of checking hammer-marks of trees. But, the negligence, if any, caused no loss to the Government, for the man who resorted unauthorised felling of trees, had compensated the department. 11. In the present case, the 1st respondent was absent for certain period without obtaining prior permission. No doubt, it is clear dereliction of duty on the part of an every employee, but however, keeping in view the nature of misconduct, gravity of charge and no consequential loss to the Government, and that too, presently the 1st respondent was retired from service, a penalty of minor punishment will meet the ends of justice. Accordingly, we direct the petitioners authorities to cut 10% of the pension payable to the 1st respondent for a period of three years. 12. With the above modification of the impugned order, the writ petition is disposed of. There shall be no order as to cots. _____________________________ JUSTICE GHULAM MOHAMMED Dated: 01-02-2011 ________________________ JUSTICE K.G. SHANKAR Kvr [1] 1983 (2) S.C.C.442 [2] 1983 (2) S.C.C. 442