THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.16179 OF 2008 DATED JANUARY, 2011 BETWEEN N.Seetharami Reddy … Petitioner And The Andhra Pradesh Grameena Vikas Bank, (Hitherto Nagarjuna Grameena Bank) Rep. by its Chairman at Warangal. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.16179 OF 2008 O R D E R The petitioner is aggrieved by his dismissal from service. History preceding the case demands recount in some detail. The petitioner entered the service of the first respondent Bank as a Branch Manager in October, 1976. He was sent on deputation as the Managing Director of the Farmers’ Service Co-operative Society, Chandur, Nalgonda, a Society financed by the first respondent Bank. He worked as such from 05.10.1979 to 03.04.1986. He was suspended from service from 26.04.1986 in connection with certain serious irregularities allegedly committed by him during his deputation. Disciplinary proceedings were initiated against him under charge sheet dated 13.10.1986 detailing as many as 9 charges. As the petitioner failed to submit his reply within the time stipulated and even thereafter, an Enquiry Officer was appointed on 17.12.1986 to look into the matter. By letter dated 20.06.1987, the Enquiry Officer called upon the petitioner to inform him whether he wished to defend his case through a member of the recognized Trade Union and if so, to forward the name and designation of such representative, along with his willingness letter. Meanwhile, the petitioner approached this Court by way of Writ Petition No.9097 of 1987 challenging the jurisdiction of the first respondent bank to initiate disciplinary proceedings against him in respect of his actions while on deputation. By virtue of the interim orders passed therein, the enquiry proceedings stood stalled. However, upon vacating of the stay orders in the said writ petition, the Enquiry Officer by letter dated 24.03.1988 reiterated his request to the petitioner to inform him the name and designation of his chosen Union representative. The petitioner, having sought adjournment of the enquiry proceedings on 14.02.1990, chose one A.Satyapal Reddy, General Secretary of the Officers’ Association to represent his case in the first instance. By letter dated 22.03.1990, the Enquiry Officer rejected this request on the ground that A.Satyapal Reddy was already defending three other cases and could not be permitted to take on the petitioner’s case in view of the Board resolution dated 11.10.1988 of the first respondent Bank. During the enquiry proceedings held on 06.04.1990, the Enquiry Officer again asked the petitioner to choose another defence representative. The petitioner’s request to engage a legal practitioner was turned down as the presenting officer was not legally trained. On 04.05.1990 the petitioner pressed for permission to engage A.Satyapal Reddy as his defence representative. As the Enquiry Officer did not accede to this request, the petitioner left the enquiry stating that he could not participate. On 19.05.1990, the petitioner addressed the Enquiry Officer seeking permission to appoint one R.Shankar Reddy as his defence representative. However, this request was also turned down during the enquiry proceedings held on 19.05.1990 and again on 14.06.1990, as R.Shankar Reddy was also appearing as a defence representative in three other cases. The petitioner left the enquiry halfway through the proceedings and did not participate thereafter. He did not even choose to cross-examine the witnesses examined by the Bank. The petitioner addressed the Chairman-cum-Disciplinary Authority of the first respondent Bank by letter dated 14.06.1990 pointing out that R.Shankar Reddy had been permitted to appear as a defence representative for other employees of the Bank under the orders of the High Court and reiterated his request to have him as his defence representative. At this stage, the petitioner filed W.P.No.9792 of 1990 before this Court challenging his suspension from service. The writ petition was disposed of leaving it open to the petitioner to raise the issue after the completion of the disciplinary proceedings. Thereafter, the petitioner again approached this Court by way of Writ Petition No.3241 of 1991 assailing the continuation of the disciplinary proceedings on the ground that surcharge proceedings had been commenced against him under Section 60 of the Andhra Pradesh Co-operative Societies Act, 1964. This writ petition was dismissed at the admission stage by order dated 11.03.1991, wherein this Court held that the disciplinary proceedings need not and could not depend upon the surcharge proceedings and that, even if there was any connection between the allegations against the petitioner in both the proceedings, the conclusions in one could not be determinative of the liability of the petitioner in the other, unless such material formed part of the record in that proceeding. Relevant to note, criminal proceedings were also launched against the petitioner in C.C.No.337 of 2002 before the Judicial Magistrate of First Class, Nalgonda, on the same issue, which ultimately ended in his acquittal owing to benefit of doubt, under Judgment dated 09.08.2004. The petitioner submitted his defence brief dated 31.03.1991, wherein he concentrated more upon the technical aspects raised by him rather than defending his case on merits. The enquiry ultimately culminated in report dated 04.05.1991. Charges 1, 2, 3, 6 and 8 were held to be proved while charge 4 was partly proved and charges 5, 7 and 9 were held not proved. While so, the surcharge proceedings under Section 60 of the Andhra Pradesh Co-operative Societies Act, 1964 concluded in the order dated 09.07.1991, whereby the Deputy Registrar of Co-operative Societies, Nalgonda, held that the petitioner had not caused any loss to the Society and as such, no responsibility could be fixed on him for the amounts in question. The petitioner thereupon addressed letter dated 18.11.1991 to the Chairman-cum-Disciplinary Authority of the first respondent Bank bringing this aspect to his notice and asked for dropping of the disciplinary proceedings. Unmoved, the Chairman-cum-Disciplinary Authority of the first respondent Bank by letter dated 28.01.1992, while enclosing a copy of the enquiry report, held the petitioner guilty of charges 1, 2, 5, 6 and 8 in their entirety, charges 3 and 4 to the extent indicated therein and innocent of charges 7 and 9. As the proved misconduct of the petitioner involved misappropriation of amounts by producing fictitious bills without purchasing goods, withdrawal of amounts on forged withdrawal slips, collusion with borrowers and mis-utilization of the Society’s funds for his personal benefit, the Disciplinary Authority proposed the penalty of dismissal from service upon the petitioner in addition to treating his period of suspension as ‘not on duty’ for all purposes. The petitioner was afforded the opportunity of a personal hearing to show cause as to why the proposed penalty should not be inflicted upon him. Annexed to the above letter was a detailed statement of the observations/decisions of the Chairman-cum- Disciplinary Authority of the first respondent Bank upon each charge in the context of the Enquiry Officer’s findings. Relevant to note, while agreeing with and confirming the Enquiry Officer’s findings on charges 1, 2, 6, 7, 8 and 9, the Disciplinary Authority disagreed with the Enquiry Officer in respect of the remaining charges. In so far as charge 3 is concerned, the Enquiry Officer held the charge to be proved while the Disciplinary Authority opined that the charge was only partly proved. Apropos charge 4, the Enquiry Officer held that only the first part of the charge was proved while the Disciplinary Authority concluded that the petitioner was guilty of the first part of the charge except to a limited extent and was also guilty of the second ingredient of the charge. As regards charge 5, the Enquiry Officer held that the same was not proved whereas the Disciplinary Authority held the petitioner to be guilty. The petitioner was given a personal hearing by the Disciplinary Authority on 22.02.1992 and by proceedings dated 03.03.1992, the Disciplinary Authority confirmed the proposed punishment of dismissal from service. The petitioner appealed against his dismissal from service through petition dated 20.04.1992. The Appellate Authority, the Board of Directors of the first respondent bank, dismissed the same by order dated 05.11.1992. Aggrieved thereby, he filed Writ Petition No.5391 of 1993 before this Court. The writ petition was partly allowed in the first instance by a learned Judge of this Court by order dated 17.02.2004, converting the punishment of dismissal to that of compulsory retirement from service with effect from 30.03.1992. The petitioner’s suspension period till that date was directed to be treated as ‘on duty’ for all purposes. Dissatisfied, both parties appealed in Writ Appeal Nos.848 of 2004 and 2478 of 2005. By Judgment dated 03.04.2007, a Division Bench of this Court set aside the order passed in the writ petition and remitted the case for adjudication afresh. Thereupon, by order dated 21.08.2007, taking note of the cryptic and unreasoned appellate order dated 05.11.1992, a learned Judge of this Court set aside the same and remanded the matter to the Appellate Authority for fresh consideration. The petitioner was given liberty to urge contentions which he had canvassed earlier and also supplement the same with the permission of the Appellate Authority. The petitioner then urged additional grounds in his petition dated 20.09.2007 supplementing those raised by him in his appeal dated 20.04.1992. By order dated 24.12.2007, his appeal was once again turned down confirming the punishment of dismissal from service visited upon him. In consequence, this writ petition. It may be noted that in the meanwhile, the petitioner reached the age of superannuation on 31.05.2001. Mr.Siva, learned counsel for the petitioner, mounted a multi- pronged attack against the disciplinary action taken against his client, both on facts as well as on procedural technicalities. It is his case that his client was denied a fair opportunity to defend himself as he was not allowed to have a person of his choice as his defence representative. Learned counsel submitted that injustice was done to his client in the disciplinary proceedings, given the fact that he was given a clean chit both in the criminal proceedings as well as the surcharge proceedings. He pointed out that neither the Disciplinary Authority nor the Appellate Authority considered this aspect as is evident from the orders impugned. He contended that as the petitioner was held not guilty in the surcharge proceedings in so far as causing loss to the Society is concerned, the punishment of dismissal from service imposed upon him on the same grounds was disproportionate. He relied on the fact that the petitioner was not furnished a copy of the enquiry report till the issuance of the second show cause notice to support his contention that his client was denied a fair chance to defend himself. He challenged the manner in which the Disciplinary Authority went about disagreeing with some of the findings of the Enquiry Officer without putting the petitioner on prior notice. The learned counsel also addressed arguments on facts to assert that his client was innocent of the charges levelled and held proved against him. Refuting these contentions, Ms.V.Uma Devi, learned counsel appearing for the first respondent Bank, contended that the petitioner had no guaranteed right to representation through a Union member under the Bank’s Regulations. She pointed out that the petitioner had wilfully adopted a stance of non-cooperation during the enquiry proceedings and in spite of being given ample opportunity to choose a defence representative, he had not done so and on the other hand, deliberately refused to participate in the enquiry proceedings. She submitted that the enquiry had been conducted in accordance with the prescribed procedure duly affording fair opportunity to the petitioner to defend himself. She contended that the adamant non-participative attitude of the petitioner estopped him from complaining of procedural irregularities, if any, as he did not suffer any prejudice thereby. She pointed out that neither in the appeal nor before this Court, the petitioner had complained of any prejudice being occasioned, be it by the non-furnishing of the enquiry report at an earlier point of time or the disagreement by the Disciplinary Authority with some of the findings of the Enquiry Officer. She argued that the charges held proved by the Enquiry Officer, which were confirmed by the Disciplinary Authority, were serious in nature involving misappropriation and that the same were sufficient to justify the punishment of dismissal from service. In so far as the factual findings of the Disciplinary Authority and the Appellate Authority are concerned, she submitted that sufficient evidence had been placed on record to establish the petitioner’s guilt in so far as the proved charges are concerned and that this Court would not venture into these factual aspects in a writ petition. She further pointed out that upon remand by this Court in the earlier round of litigation, the petitioner was permitted to raise all additional grounds that he wished to, by way of his petition dated 20.09.2007, and that the Appellate Authority had passed a detailed order dealing with all the aspects raised by the petitioner. She accordingly supported the action taken by the first respondent Bank against the petitioner and sought dismissal of the writ petition. Both the learned counsel relied upon case law to support their respective contentions. At the outset, it may be noted that this Court, while reviewing the validity of disciplinary action in a writ petition, would not convert itself into a court of appeal over such proceedings. It is only when disciplinary proceedings are conducted in violation of the statutory rules/procedure or in breach of the principles of natural justice, thereby causing prejudice to the delinquent employee, that this Court would be inclined to interfere. On facts, if the case is founded on no evidence or the findings are perverse, being wholly arbitrary, capricious or unreasonable, this Court would be quick to react. The doctrine of proportionality empowers this Court to step in if the punishment imposed is so harsh and disproportionate that it shocks its conscience, exception being cases involving fraud, misrepresentation or misappropriation/ embezzlement. As this Court does not sit as an appellate authority over such proceedings, sufficiency of the evidence relied upon by the disciplinary authorities is not a ground for interference. It is not for this Court to reappreciate the evidence and arrive at an independent finding or substitute its view for that of the disciplinary authorities, even if two views are possible on the given facts. Limitations on the scope of judicial review under Article 226 of the Constitution in matters of this nature are well settled [STATE OF ORISSA V/s. BIDYABHUSHAN MOHAPATRA[1], STATE OF A.P. V/s. SREE RAMA RAO[2], STATE OF MADRAS V/s. G.SUNDARAM[3], STATE OF A.P. V/s. C.VENKATA RAO[4], B.C.CHATURVEDI V/s. UNION OF INDIA[5], APPAREL EXPORT PROMOTION COUNCIL V/s. A.K.CHOPRA[6] and UNION OF INDIA V/s. G.GANAYUTHAM[7]]. In the light of this established legal position, the case on hand does not invite examination on factual aspects. The detailed enquiry report as well as the statement of observations/decisions of the Disciplinary Authority appended to the second show cause notice dated 28.01.1992 clearly demonstrate that evidence was adduced and discussed in support of each proven charge. The findings of the authorities below are neither perverse nor reflective of non-application of mind warranting interference by this Court. It is therefore not for this Court to sift through such evidence to ascertain the adequacy thereof or assess whether an alternate view is possible thereon. The contentions urged by Mr.Siva, learned counsel, in this regard are therefore eschewed from consideration. As regards the petitioner’s plea that he was denied fair opportunity to defend himself owing to the rejection of his request for appointment of a defence representative of his choice, the enquiry report dated 04.05.1991 extracts the sequence of events during the enquiry proceedings, which is of relevance: Enquiry dated, place of enquiry and remarks Sl. No. Date Place Remarks 01. 15.07.1987 FSCS, Chandur PO requested for postponement on sick grounds. The enquiry was originally ordered for 15.7.1987 but due to the A.P.High Court stay order (WP.No.12054 of 1987) enquiry was stayed. (Later High Court dismissed the writ). 02. 02.05.1988 NGB, Head Office, Khammam. Reg. Letter No.RL.85 dated 14.4.88 returned unserved. 03. 16.02.1988 -do- Enquiry postponed to 16.05.1988 Andhra Pradesh High Court stayed the enquiry on 10.5.1988 (Writ App. Misc. 1354 of 1988) As per Head Office letter DPC/116/422/89, dated 15.7.1989 High Court ordered enquiry to go on. 04. 01.12.1989 H.G.Bank, Head Office, Khammam. Reg. Letter sent on 16.11.1989 C.S.O. not attended. Enquiry posted to 15.12.1989. 05. 15.12.1989 -do- Reg. letter returned unserved with remarks party absent. Enquiry posted to 8.1.90. 06. 08.01.1990 -do- Reg. post returned with postal remarks party refused. Enquiry posted to 14.02.1990. 07. 14.02.1990 -do- C.S.O. attended for the enquiry a n d requested postponement of enquiry for 20 days. As per his request enquiry adjourned to 7.3.90. 08. 07.03.1990 -do- C.S.O. attended. Enquiry could not be started, because CSO not selected the defence representative. 09. 05.04.1990 -do- CSO attended, not selected D.R. CSO wants to choose legal practitioner which was disallowed. Enquiry adjourned to 19.4.90 to give CSO one more opportunity to choose D.R. 10. 19.04.1990 -do- CSO asked for adjournment since he has not selected D.R. He was given more opportunity for choosing his D.R. and to defend his case. Enquiry adjourned to 04.05.1990. 11. 04.05.1990 -do- CSO not selected D.R. PO was permitted to start presentation. CSO boycotted the enquiry. 12. 11.05.1990 -do- CSO absent. PO’s presentation continued. 13. 19.05.1990 Nagarjuna Grammena, Head Office, Khammam. CSO attended the enquiry. CSO requested one more opportunity to choose DR and requested adjournment. His request was conceded and enquiry adjourned. 14. 14.06.1990 N.G.Bank, Nalgonda Branch. CSO attended. PO was permitted to continue presentation of the charge. CSO boycotted the enquiry in the middle. 15. 06.07.1990 FSCS Premises, Chandur. CSO not attended the enquiry. PO presented the charges. (CSO sent letter received on 09.07.1990 to postpone the enquiry). 16. 20.07.1990 FSCS Chandur Premises. Enquiry postponed to 17.8.90. 17. 17.08.1990 -do- Enquiry postponed to 29.8.1990 at the request of PO. 18. 19. 29.08.1990 30.08.1990 -do- CSO absent. PO was allowed to present the charges (ex parte). 20. 13.09.1990 -do- CSO absent. PO allowed to continue presentation (ex parte). 21. 14.09.1990 -do- -do- 22. 16.10.1990 -do- Enquiry adjourned to 24.10.90 due to EO attending training programme. 23. 24.10.1990 -do- Enquiry not held. Adjourned to 12.11.1990 due to Bharath Bundh. 24. 12.11.1990 -do- CSO was absent in the beginning but attend in the middle of the enquiry. PO presented the charges and witnesses. 25. 20.11.1990 -do- CSO absent, PO presented the charges and witness. CSO sent letter for adjournment for postponement in the middle of enquiry (on account of sick grounds). CSO was given five weeks time and asked to submit medical certificate. 26. 08.01.1991 N.G. Bank, Nalgonda Branch. CSO requested for adjournment. He was given time as per his request upto 6.2.1991. 27. 06.02.1991 DAO, Nalgonda. Enquiry adjourned to 07.02.91 due to proposed Bharat Bundh C.S.O. was informed by Telegram. 28. 07.02.1991 -do- CSO absent. Enquiry concluded. (CSO sent telegramme received on 08.02.1991 asking for adjournment. Enquiry closed on 07.02.1991 itself). The Nagarjuna Grameena Bank (Staff) Service Regulations, 1980, which govern this case do not specifically provide for representation of the delinquent employee through a defence representative. Be that as it may, there is no dispute that the petitioner was in fact given an opportunity in the very first instance to engage a defence representative. The defence representatives chosen by him were however not accepted for one reason or the other. Though Mr.Siva, learned counsel, disputed that there was any stipulation with regard to the number of enquiries in which a defence representative could participate, Ms.V.Uma Devi, learned counsel, produced a copy of the Resolution No.90:19 dated 11.10.1988, demonstrating that the Board of Directors of the first respondent Bank resolved thereby to limit the number of cases that could be handled by a defence representative to three. Though there appears to be some controversy with regard to denial of permission for R.Shankar Reddy to act as the petitioner’s defence representative, it is the case of the first respondent Bank that he was permitted to appear for another employee owing to a Court order. It may be noted that the petitioner was aware of this and raised this aspect in his letter dated 14.06.1990 addressed to the Disciplinary Authority. He, however, did not choose to take any steps thereafter. Relevant to note, he also approached this Court by way of Writ Petition No.9792 of 1990 in connection with his continued suspension and also Writ Petition No.3241 of 1991 in the context of simultaneous disciplinary and surcharge proceedings being continued, but did not choose to raise the issue of his defence representative. Further, the sequence of events extracted supra clearly demonstrates that the petitioner had more than sufficient opportunity to appoint some other defence representative but wilfully refrained from doing so. His indifference towards the enquiry proceedings is manifest from the scant regard that he showed to the progress thereof. So much so, that he refused to even cross-examine the Bank’s witnesses. Ms.V.Uma Devi, learned counsel, contended that the Bank’s Regulations do not provide for representation through a Union member and therefore the petitioner had no legal right to seek such representation. She placed reliance on case law in this regard. Mr.Siva, learned counsel, on the other hand, refuted this contention and asserted that no ratio decidendi to this effect could be gathered from the case law relied upon. He sought to press into service precedents on how Judgments were to be read and understood for the purpose of gleaning the ratio therefrom. This Court is however disinclined to enter into this controversy. Irrespective of whether the petitioner had an assured right to a defence representative during the course of the disciplinary proceedings, the irrefutable fact remains that such an opportunity was extended to him. That being so, his legal entitlement in this regard becomes purely academic. The facts on hand establish that in spite of being given this opportunity time and again the petitioner did not choose to avail the same or raise a grievance before this Court at the relevant point of time. This Court cannot lose sight of the fact that the petitioner availed every possible opportunity to approach this Court during the course of the disciplinary proceedings, whenever he felt aggrieved. It is therefore too late in the day now for him to complain that he was denied a defence representative of his choice. As regards the petitioner’s contention that the disciplinary authorities remained unmoved by the positive findings in his favour both in the criminal case as well as the surcharge proceedings, it is to be noticed that the surcharge order dated 09.07.1991 rendered by the Deputy Registrar of Co-operative Societies, Nalgonda, in favour of the petitioner was subjected to appeal in C.T.A.No.153 of 1997 before the Co-operative Tribunal, Hyderabad. By Judgment dated 18.01.2000, the Tribunal set aside the said order and directed the authority to hold a fresh enquiry to decide the liability of the petitioner in respect of the charges afresh. However, as the Society failed to respond and co- operate with the Deputy Registrar/Divisional Co-operative Officer, Nalgonda, upon such remand, the surcharge proceedings were finally dismissed for default by order dated 28.10.2005. Thus, as matters stand, the surcharge order dated 09.07.1991 relied upon by the petitioner does not exist. The findings therein therefore cannot enure to his benefit. That apart, this Court in its order dated 11.03.1991 in Writ Petition No.3241 of 1991 pointed out that disciplinary proceedings and surcharge proceedings were independent of each other. This finding was held to constitute res judicata by the Division Bench while passing the Judgment dated 03.04.2007 in Writ Appeal Nos.848 of 2004 and 2478 of 2005. Thus, on both counts, the petitioner’s reliance upon the earlier surcharge order dated 09.07.1991 in support of his plea of innocence in the disciplinary proceedings cannot be accepted. In so far as the criminal case is concerned, as pointed out by Ms.V.Uma Devi, learned counsel, the acquittal of the petitioner therein was not an honourable one but was due to benefit of doubt. In fact, many observations of the