* HON’BLE SRI JUSTICE GHULAM MOHAMMED AND * HON’BLE SRI JUSTICE SANJAY KUMAR +WRIT PETITION No.27019 of 2008 % Dated: 30-4-2009 Between: # Sri K. Balarama Raju, ..... PETITIONER AND 1 The High Court of Andhra Pradesh, Hyderabad rep. by Registrar (Vigilance ) 2. The Government of A.P. Hyderabad rep by Secretary to Government, Legislative Affairs, and Justice Secretariat, Hyderabad .....RESPONDENTS < GIST : >HEAD NOTE: ? Cases referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 27019 of 2008 Between: K. Bala Rama Raju S/o. Late Seeta Rama Raju R/o. Jeedimetla, Hyderabad. ..... PETITIONER AND 1 The High Court of Andhra Pradesh Rep. by Registrar (Vigilance) Hyderabad. 2 Govt. of A.P. Rep. by Secretary to Govt. Secretariat, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ, order or direction more particularly one in the nature of a Writ of Mandamus, calling for records from the respondents, set-aside the proceedings in G.O.Ms.No.139, Home (Courts.C) Dept., dt. 18-9-2008 communicated by the 1st respondent in proceedings Endt. ROC.No.555/2006 - Vigilance Cell dt.26-9-2008 by declaring the said proceedings as arbitrary, illegal and contrary to Law and consequently direct the respondents to reinstate the petitioner into service with all consequential benefits including full back wages. Counsel for the Petitioner:M/sH.SRINIVASA RAO&VIJAYALAKSHMI Counsel for the Respondent No.: G.VIDYASAGAR (SC FOR APHC) The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WP No.27019 of 2008 Order: (Per Sri GM, J) This Writ Petition is filed challenging the proceedings in G.O.Ms.No.139, Home (Courts-C), Department dated 18.09.2008 communicated by the 1st respondent in proceedings Endt. Roc. No.555/2006 Vigilance Cell dated 26.09.2008 and to declare the said proceedings as arbitrary and illegal; and consequently to direct the respondents to reinstate the petitioner into service with all consequential benefits including full back wages. The case of the petitioner is that he was selected for the post of District Munsif (Junior Civil Judge) in the year 1988. Later, he was promoted as Senior Civil Judge in the year 2004. In the year 2005, the petitioner was transferred and posted as Senior Civil Judge, Gurazala, Guntur District. While he was working as Senior Civil Judge, Gurazala, a complaint petition was sent by Sri J.A.Venkateswara Rao, President and other members of the Bar Association, Gurazala, to the High Court and considering the nature of the allegations, disciplinary proceedings were initiated against the petitioner, besides placing him under suspension in public interest. Thereafter, considering the allegations and the written explanation of the petitioner, articles of charges dated 25.07.2006 were framed against the petitioner, communicated to him for his written statement and considering the written statement submitted by the petitioner, a regular departmental enquiry was ordered against the petitioner by appointing Sri T. Sunil Chowdhary, formerly I Additional District Judge, Guntur as Enquiry Officer and Smt. Ch. Shantha Kumari, formerly I Additional Senior Civil Judge, Guntur as Presenting Officer in the enquiry. The articles of charges read as under: “ Articles of Charge No.1: That you, Sri K.Balarama Raju, while working as Senior Civil Judge, Gurazala, though you were on commuted medical leave from 8-11-2005 to 15-11-2005 appeared in the court premises on 15-11-2005 picked up quarrel with one Sri Sudireddy Saidiaih, who attended the court of II Additional District Munsiff, Gurazala, on that day, in connection with C.C.No.155/05 at about 10-45 AM abused him in filthy language and later caught hold of his shirt before the public, litigants and members of the Bar and instigated the police to register STC 129/2005 a false case against him for no fault of his and you have done the same with vengeance, high handedness by misusing your position as a Judicial Officer which act of your, if proved or established would amount to grave misconduct and unbecoming of a Judicial Officer within the meaning of Rule 3 of A.P. Civil Services ( Conduct ) Rules, 1964. Articles of Charge No.2: That you, Sri K. Balarama Raju, while working as Senior Civil Judge, Gurazala falsely implicated one S. Saidaiah, TDP leader and got filed a petty case against him as 113/05 by the Gurazala P.S. u/s 290 IPC registered as STC 129/2005 and when the concerned ASI Sri Ch. Sambasiva Rao prepared the charge sheet showing three witnesses including himself as 3rd witness, you corrected the charge sheet and added your name in your own hand writing as 2nd witness in the charge sheet and altered the other witnesses numbers as 3 and 4 from 2 and 3 and thus you showed vengeance against Sri S. Saidaiah and wantonly implicated him in a false case which act of yours if proved or established would amount to grave misconduct unbecoming of a Judicial Officer within the meaning of Rule 3 of A.P. Civil Services ( Conduct) Rules, 1964. Articles of Charge No.3. That you, Sri K Balarama Raju, while working as Senior Civil Judge, Gurazala abused and bet Sri B. Sambasiva Rao @ Siva, Attender working in the Bar Association, Gurazala, once, and he escaped from you and ran into the Bar Association Hall, where several members of the Bar were present in the Association that thus you behaved in a rude manner and lowered the reputation of a Judicial Officer in the eyes of public, litigants and the Membes of the Bar of Gurazala which act of yours if proved or established would amount to grave misconduct, judicial dishonesty within the meaning of Rule 3 of A.P. Civil Services (Conduct ) Rules, 1964. Articles of Charge No.4. That you, Sri K. Balarama Raju, while working as Senior Civil Judge, Gurazala; a) Are in the habit of abusing public, litigants, advocates and their clerks for no fault of theirs in an unparliamentary and defamatory language. b) Are in the habit of abusing the advocates in filthy language during legal literacy camps naming them as brokers, touts etc., c) Once by sitting in a local Police Station you summoned the constable of Police Station had a telephonic talk with the S.I. of Police, who was on bandobust duty at that time in Tirunalla, got fetched a full bottle of ‘Royal Stag Whisky’ consumed the same by sitting on the road side openly before the public. d) Used to force the police personnel of your jurisdiction to host parties to you and used to direct them to fetch house hold articles for your domestic use; e) Are in the habit of breaking glass tumblers, vehemently while sitting on the Bench and during the court proceedings. That thus you behaved in an erratic manner which acts of yours if proved or established would amount to grave misconduct, unbecoming of a Judicial Officer within the meaning of Rule 3 of A.P. Civil Services ( Conduct ) Rules, 1964. ” On behalf of the Disciplinary Authority, P.Ws. 1 to 38 were examined and Exs.P. 1 to P.5 were marked. The charged officer examined RWs. 1 to 4 and marked Exs. D.1 to D.8. Considering the evidence, the Enquiry Officer found the petitioner guilty of charges 1 to 3 and 4 (a) and (e) and charges 4(b), 4(c), and 4(d) were held to be not proved. The petitioner submitted his explanation dated 08.08.2007 to the Report of the Enquiry Officer. Upon consideration of the explanation and the findings of the Enquiry Officer, the petitioner was imposed with the penalty of compulsory retirement from service. Accepting the said recommendation of the High Court, G.O.Ms.No.139 dated 18.09.2008 was issued by the 2nd respondent. Hence, this Writ Petition. Sri Challa Sitaramaiah, learned Senior Counsel appearing on behalf of the learned counsel for the petitioner, while attacking the impugned orders, has vehemently contended that the basic facts were denied and do not exist, as the alleged victims themselves categorically denied the incidents. Learned senior counsel also attacked the findings of the Enquiry Officer and would submit that judicial review is available to the High Court if a decision is arrived at on no evidence and in the instant case the evidence which was relied on by the Enquiry Officer is thoroughly unrealiable, and the impugned orders are, therefore, perverse. Elaborating his contentions, the learned Senior Counsel contends that the findings of the Enquiry Officer insofar as charges 1, 2 and 3 are concerned, are perverse, irrational and opposed to legal principles. It is submitted that the petitioner was an honest judicial officer has discharged his duties without any remarks for the last several years and that the charges 1 and 3 were denied by the very persons who were said to have been involved and against whom the violations were alleged to have occurred, that insofar as charge no.2 is concerned the accused in C.C.No.113 of 2005 admitted the offence and paid the fine on 14.03.2006 the petitioner also made endorsement on the charge sheet, therefore the finding that the petitioner added his name as a witness even without verifying the signature is perverse. With regard to charge no.4 (a), it is contended that no specific words of abuse were mentioned either in the complaint or the articles of charges and the same are vague. It is submitted by the learned Senior Counsel that no litigant person from among the public, or any advocate clerk was examined to speak about the abusing and ill-treatment allegedly meted out by the petitioner, whereas some advocates denied the allegation that the petitioner abused any one. The learned Senior Counsel also pointed out that the Enquiry Officer ignored the sequences of events, the contempt notice issued by the petitioner to the advocates for their misbehavior and the insult hurled at the petitioner and that the complaint Ex. P-1 by a section of advocates would clearly show that the proposed complaint was a counter blast to the action taken by the petitioner against the Bar members, and that the basis of the charges would disclose the malicious nature of the complainants and the finding on charge 4(e) is perverse and not based on facts at all. Learned Senior Counsel also attacked the impugned orders relying on Rule 20(18) of the Andhra Pradesh Civil Services (Classification, Control and Appeal ) Rules, 1991, ( for brevity “the Rules”), and submitted that the said Rule mandates that the Enquiry Officer should question the Charged Officer on the circumstances appearing against him in the evidence and seek his explanation when the charged officer does not examine himself. Rule 21 of the Rules, it is contended, mandates the Disciplinary Authority to give its own findings on the basis of the evidence adduced during the enquiry and then it should come to a conclusion that a major penalty should be imposed on the basis of its findings. If it disagrees with the Enquiry Officer’s findings, notice should be given to the Government Servant. If it does not disagree no further explanation need be called for from the Government servant. It is further contended that the Disciplinary Authority did not give any findings on the basis of the evidence adduced before the Enquiry Officer and in any event the penalty imposed is most disproportionate to the gravity of charges and hence the Writ Petition is liable to be allowed. In support of his contentions, learned Senior Counsel relied on the decisions reported in SIRROS v. MOORE AND OTHERS ((1) 1974) 3 All England Law Reports 776 ), KULDEEP SINGH v. COMMISSIONER OF POLICE ( (2) AIR 1999 (SC) 677 ), CHOLAN ROADWAYS LTD v. THIRUGNANASAMBANDAM ( (3) 2005 (3) Supreme Court Cases 241 ), REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH ( (4) 1988 ( 3) SCC 211 ), R. C. SOOD v. HIGH COURT OF RAJASTHAN ( ( 5 ) 1994 (Supp) 3 SCC 711 ), STATE OF ASSAM v. MOHAN CHANDRA ((6) AIR 1972 SUPREME COURT 2535), R.C. SOOD v. HIGH COURT OF JUDICATURE AT RAJASTHAN ( (7) 1998 (5) Supreme Court Cases 493 ), J. RAVI KUMAR v. CHIEF GENERAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LIMITED ( (8) 2006 (5) ALT 309 ). On the other hand, Sri G. Vidyasagar, learned Standing Counsel for R.1, contended that strict rules of evidence would not apply to departmental proceedings and that on the basis of the evidence available on record, the Enquiry Officer held that the charges were proved. Learned Standing Counsel further submitted that disciplinary proceedings were initiated against the petitioner on the basis of the complaint made by the President and other members of the Bar Association, numbering 35 out of 70 members of the Bar, and that the findings on the allegations which culminated in the punishment of compulsory retirement from service, are perfectly legal and valid and no interference with the impugned orders is warranted. It was also contended that the charges and the findings thereon indicated unexpected behavior from a responsible judicial officer and that the punishment imposed is commensurate with the charges alleged and established against the petitioner, and no interference is warranted by this Court in exercise of its power of judicial review under Article 2226 of the Constitution of India. In support of his contentions, he relied on the decisions reported in UNION OF INDIA v. K.G. SONI ( (9) 2006 (6) Supreme Court Cases 794 ), STATE OF PUNJAB v. RAM SINGH ( (10) AIR 1992 SUPREME COURT 2188 ), APPAREL EXPORT PROMOITON COUNCIL v. A. K. CHOPRA ( (11) AIR 1999 SUPREME COURT 625 ). In K.G. SONI’s case ( 9 supra ), for the misconduct of not disclosing in the attestation form about the first marriage and later performing a second marriage during the subsistence of the first marriage, disciplinary proceedings were initiated against the respondent therein. The Enquiry Officer recorded findings in favour of the respondent and the Disciplinary Authority differed with the findings of the Enquiry Officer and came to the conclusion that the respondent was guilty of misconduct and imposed the punishment of removal from service. On appeal, the Appellate Authority converted the punishment to that of compulsory retirement. The matter went upto the High Court and the High Court remitted the matter back to the Appellate Authority for reconsideration with regard to the quantum of punishment. In those circumstances, the Apex Court held that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral stands. Judicial review is limited to the efficiency in the decision making process and not the decision. In RAM SINGH’s case ( 10 supra), the respondent therein was a constable gunman and after having heavy drink, he was seen roaming in the market with his service revolver, while on duty. When he was sent to the doctor for medical examination he abused the medical officer on duty, which showed his depravity or delinquency due to his drinking habit. Considering those circumstances, the Apex Court held that the conduct of the constable would constitute gravest misconduct warranting dismissal from service. In A.K. Chopra’s case ( 11 supra ), the delinquent-a Superior Officer was found by departmental authorities to be guilty of molesting and of having tried to physically assault a subordinate female employee. The punishment of dismissal was awarded by the Disciplinary as well as the Appellate Authorities. The High Court found no fault with the finding as to the unbecoming conduct of the delinquent or with the conduct of enquiry, yet interfered with the punishment. The Apex Court considering this situation, held as follows : “THE High Court appears to have over- looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re- appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, observed: "the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court. " ( emphasize supplied ) The main ground of attack of the learned Senior Counsel is that in instant case the punishment of compulsory retirement was imposed on the petitioner without there being any evidence on record. In this regard it is expedient to refer to the rulings of the Apex Court. In KULDEEP SINGH’s case ( 2 supra ), the charge against the appellant therein (a Police Constable) consisted of two components, namely, a factory owner had paid certain amount to the appellant therein for being paid to three labourers- complainants and the appellant therein did not pay the entire amount to the labourers but kept some amount with himself. The factory owner appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers-complainants to whom the payment is said to have been made were not produced at the domestic enquiry. No evidence was adduced in support of the charge framed against the delinquent officer and no attempt was made by the Enquiry Officer to produce any of the complainants at the departmental enquiry. Considering this situation, it was held by the Apex Court as follows: “( 7 ) IN Nand Kishore v. State of Bihar, AIR 1978 SC 1277 : (1978) 3 SCC 366 : (1978) 3 SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and, that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse. ( 8 ) THE findings, recorded in a domestic enquiry, can be characterized as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of Andhra Pradesh v. Sree Rama Rao, (1964) 2 Lab LJ 150 : AIR 1963 SC 1723 : 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India v. Prakash Chand Jain, (1969) 2 Lab LJ 377 (SC) : AIR 1969 SC 983 and Bharat Iron Works v. Bhagubhai Balubhai Patel, 1976 Lab IC 4 (SC) : AIR 1976 SC 98 : (1976) 2 SCR 280 : (1976) 1 SCC 518. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour), AIR 1984 SC 1805 : (1985) 1 SCR 866 : (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi- judicial Tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. ( 9 ) Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. . . . . ( 41 ) SMT. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16 (3 ). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse. ( 42 ) THE Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "reasonable Opportunity", contemplated by Article 311 (2) of the Constitution. The "bias" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non- production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up". In CHOLAN ROADWAYS LTD’s case ( 3 supra ), it was held by the Apex Court