THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.4020 OF 2009 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) Heard both the counsel. 2. Aggrieved by the order in D(D) A.No.13/2008.C-4 (Con.) dated 16.9.2008 passed by the 2nd respondent appellate authority – High court of A.P. represented by the Registrar (Management), in rejecting the administrative appeal filed by the petitioner, who was formerly working as Personal Assistant in Junior Civil Judge’s Court, Nellore District and thereby confirming the order of the disciplinary authority – District Judge, Nellore in D.E.No.9/2007 dated 19.3.2008, in imposing the penalty of compulsory retirement from service, the present writ petition is filed. 3. The petitioner was initially appointed as Copyist on 11.8.1986 and later promoted as Steno-Typist. At the relevant time, he was working in the court of I Additional Senior Civil Jude, Nellore. On 10.8.2007, he was served with the charge sheet alleging that he allowed his wife to participate in the auction of immovable property in court sale in E.P.No.86/2006 in O.S.No.357/2004 on the file of Principal Senior Civil Judge, Nellore, without prior intimation and permission and the said charge is based on a pseudonymous petition sent by one K.Vijaya on 10.8.2007. The charge against the petition is as under: “That you, Sri P.Ramana Reddy while working as Personal Assistant in the Court of I Additional Senior Civil Judge, Nellore in dereliction of your official duties and unbecoming conduct of a government servant, without prior intimation and permission of the Appointing Authority, allowed your wife P.Sarada to participate in the auction of the immovable property in E.P.No.86/2006 in O.S.No.357/2004 on the file of the Principal Senior Civil Judge, Nellore for a sum of Rs.6,90,000/-. You are hereby called upon as to where from this financial resources have come to your wife and also to explain as to how she was allowed to participate in the auction when you are working in the court of I Additional Senior Civil Judge and thereby creating lack of confidence of the public and thereby misusing your position of employment in the court of I Addl. Senior Civil Judge, Nellore and the said acts committed by you if proved or established would amount to dereliction of duties, misconduct and having unbecoming conduct of a government servant as per the Andhra Pradesh Civil Services (Conduct) Rules, 1964.” 4. The petitioner submitted his explanation to the above charge and not being satisfied with the same, a departmental enquiry was ordered and the IV Additional District Judge, Nellore was appointed as an Enquiry Officer by proceedings dated 12.9.2007 by the disciplinary authority – District Judge. The enquiry officer conducted enquiry and during the course of enquiry, on behalf of the disciplinary authority, one K.Venkata Ramana Reddy, who was working as Principal Senior Civil Judge, Nellore was examined as P.W.1 and no document was marked. On behalf of the charged employee, D.Ws.1 and 2 were examined and Exs.B-1 and B-2 were got marked. Appreciating the entire evidence, both oral and documentary, the Enquiry Officer submitted report dated 10.3.2008 holding the petitioner guilty of the charge framed against him. The disciplinary authority accepted the report of the enquiry officer and the petitioner was given notice on 11.3.2008 calling for objections to the report of the enquiry officer and on the proposed punishment of removal from service. The said notice could not be served on him and the disciplinary authority holding that the charged employee was given all opportunities and as he has not availed the opportunity given to him to submit any objections to the report or the proposed punishment, held that the charged employee has no answer to the charge as established and the punishment as proposed and consequently accepting the report of the enquiry officer and considering the entire material evidence on record, passed orders compulsorily retiring the petitioner from service and directed the Junior Civil Judge, Kote to communicate the same to the petitioner. Aggrieved by the order of compulsory retirement from service, the petitioner preferred administrative appeal and by the impugned order dated 16.9.2008, the appeal was dismissed and the order of the disciplinary authority, was confirmed. Challenging the same, the present writ petition is filed. 5. In the affidavit filed in support of the writ petition, the case of the petitioner while admitting the participation of his wife in the court auction is that their marriage was performed in the year 1981 and they have three daughters and they developed differences from the time their first daughter entered into teens because, his wife wanted the girl to be given in marriage to a relative of hers and further she did not want the girls to be educated, which he insisted and to his misfortune, their third daughter died of ill-health on 11.2.2007 and that his wife blamed him of negligence for her death and that due to the serious allegations made against him, he started living separately from her ever since March, 2007. Though the petitioner has examined D.Ws.1 and 2 to prove the same, their evidence have been disbelieved without any cogent reasons and in the absence of any rebuttal evidence. His case is that the condition that employee must take permission as required by Rule 20 of A.P. Civil Services CC & A Rules, 1991 presupposes that the employee is aware of the actions of the concerned members of the family. But in the present case as there is estrangement of relations between the petitioner and his wife and as he is living separately, he is not aware about the participation of his wife in the court auction. 6. He further stated that his wife made a bid for the property, as she was in a position to do so, because she was left with monies by his foster father namely her maternal uncle who had brought her up. Further, he was working in the court of I Additional Senior Civil Judge, Nellore as Personal Assistant and that he was not aware of the auction in the E.P. The auction was held in the open court and his wife was the highest bidder among the five persons who participated in the auction. There was no impropriety or fraud of any type as alleged by the pseudonymous complainant. After receipt of the charge memo, he enquired in the court of Principal Senior Civil Judge, Nellore and came to know that the judgment-debtor in O.S.No.357/2004 had come forward to make good the decretal amount and consequently the sale in favour of his wife was set aside on 16.8.2007. 7. As per the instructions issued by the Government in Circular Memo no.706/Spl.B3/99-3, G.A. (Special. A) Deptt. Dated 28.10.1999, it was ordered that pseudonymous complaints will not be acted upon. But the disciplinary authority had not considered the circular of the Government. 8. Eventually it is stated that the petitioner has more than two decades of unblemished service and before imposing the major punishment, this aspect has not been considered and thus the punishment imposed is disproportionate to the misconduct found proved against him. 9. With these averments, the impugned order was sought to be set aside. 10. On the other hand, the 2nd respondent – Registrar (Administration), High Court of A.P., filed counter affidavit and stated that on receipt of complaint from one K.Vijaya, alleging that the petitioner while working as Personal Assistant in the Court of the I Additional Senior Civil Judge, Nellore, his wife participated in the auction of immovable property in E.P.No.86/2006 in O.S.No.357/2004 on the file of Principal Senior Civil Judge, Nellore, disciplinary proceedings were initiated by issuing the charge vide proceedings dated 10.8.2007 and during the course of enquiry, though the petitioner has taken the plea that he has no knowledge about the participation of his wife in the court auction and that he is living separately from his wife, he failed to prove the said grounds and further though he has taken the plea that no disciplinary proceedings can be issued on pseudonymous complaints, the enquiry officer has rightly considering Rule 20(2) of A.P.C.S (CCA) Rules 1991, where under if there are any imputation of misconduct or misbehavior against a Government, the Disciplinary authority may itself enquiry into or appoint an enquiry officer to enquiry into the truth or otherwise of the said imputations, held that the contention of the petitioner in this regard, cannot be accepted and further the complaint received has verifiable information and thus the first respondent enquired into the matter and found prima facie case of grave misconduct against the petitioner and the enquiry officer after considering the entire evidence rightly found the petitioner guilty and the same does not warrant any interference. It is further stated that while the disciplinary proceedings are pending, the petitioner made representation dated 21.9.2007 to the Hon’ble the Chief Justice of A.P. and other dignitaries of High Court causing aspersions on the 1st respondent, for which he was kept under suspension and separate proceedings are initiated against him and a regular enquiry was ordered in two charges and the enquiry officer after conducting enquiry found the writ petitioner guilty of the charges and he was imposed punishment of stoppage of three increments with cumulative effect. Aggrieved by the said order, the writ petitioner preferred appeal to the High Court and the matter was remitted to the Disciplinary Authority to submit a detailed report to the Government since the writ petitioner was already compulsorily retired from service. It is further stated that as the petitioner indulged in grave misconduct of violating the conduct rules and allowed his wife to participate in court auction without prior intimation or sanction of the competent authority, the disciplinary authority considering the material evidence on record, imposed the punishment of dismissal from service and the same was confirmed by the appellate authority and hence the impugned order does not warrant any interference. With these averments the writ petition was sought to be dismissed. 11. The petitioner filed reply and denied averments made in the counter affidavits and reiterated the writ averments. 12. The learned counsel appearing for the petitioner Sri Vidya Prasad in addition to the averments made in the writ affidavit submitted that before accepting the report of the enquiry officer by the disciplinary authority, the petitioner was not served with the report of the enquiry officer and the petitioner also did not file his objections and without following the procedure with regard to service of enquiry report and the notice calling for objections from the petitioner, the disciplinary authority accepted the report of the enquiry officer. Therefore, non-serving of the vital documents like enquiry report and without considering the objections of the petitioner, imposing the penalty of removal from service, amounts to violation of the principles of natural justice and hence the impugned order cannot be sustained. It is further contended that the Department has to prove the guilty of the delinquent, but in the present case, the burden is placed on the petitioner to prove his innocence i.e., when the case of the petitioner is that he is residing separately from his wife and that he also examined D.Ws.1 and 2 in support of his case, the enquiry officer without any reasons disbelieved the evidence of the said witnesses and on the other hand though the Department did not lead any rebuttal evidence and proved that the petitioner is residing with his wife, held that the petitioner is guilty of the charge and hence the same cannot be sustained. With regard to quantum of punishment the learned counsel for the petitioner contended that the petitioner has put in more than 20 years of service and his service record is unblemished and he further submitted that the wife of the petitioner did not purchase the property in the court auction and the sale in her favour was set aside and the there is no passing of property from the wife to the petitioner and hence this will not amount to acquiring the property under Rule 9 and the disciplinary authority did not consider these circumstances before inflicting the penalty of removal from service. With these submissions, he sought to set aside the impugned punishment and allow the writ petition. 13. On the other hand the learned Standing Counsel for A.P. High Court contended that the admitted fact is that the wife of the petitioner participate in the court auction and though he has taken the plea that he is living separately from his wife, the same is not proved and the enquiry officer categorically recorded finding of fact that the petitioner allowed his wife to participate in the court auction and the charge against the petitioner is proved and the finding of the enquiry officer based on the evidence, cannot be interfered with by this court under Article 226 of the Constitution of India. He contended that only on the receipt of the complaint and on enquiry, this fact came to light and had this not been noticed by the disciplinary authority, the petitioner would not have disclosed the fact of his wife participating in the court auction. Therefore, based on the material evidence, the enquiry officer found the petitioner guilty and the disciplinary authority accepting the report and considering the other circumstances, taking a lenient view, ordered for his compulsory retirement and the same has rightly be confirmed by the appellate authority. With regard to the contention that the enquiry report has not been served on the petitioner and that the objections of the petitioner on the enquiry report could not be filed by the petitioner, he contended that the petitioner intentionally avoided to receive the enquiry report and failed to file his objections and the disciplinary authority after considering the material on this record, found that the petitioner was given all opportunity and that he failed to avail the same and therefore, it was deemed that the petitioner has no answer to the charge as established and the punishment as proposed. He further contended that mere violation of principal of natural justice before passing the impugned order after the conducting of regular enquiry, will not render the enquiry report or the subsequent action taken by the employer, invalid. The petitioner has to prove the prejudice caused to him for violation of natural justice. In the present case, the petitioner has intentionally avoided receiving the notice and he also failed to prove the prejudice caused to him for such violation. In support of this contention, he relied on the judgment of the Apex Court reported in UNION OF INDIA v. ALOK KUMAR[1]. With these contentions, he sought to dismiss the writ petition. 14. In view of the above material and the rival contentions, the following points would arise for our consideration: 1. Whether the finding of the enquiry officer holding the petitioner guilty of the charged leveled against him, is based on legal evidence? 2. Whether the non-service of the enquiry report on the petitioner and whether the non-filing of the objections to the enquiry report by the petitioner, vitiated the entire proceedings? And 3. Whether the quantum of punishment imposed against the petitioner is proportionate to the charge found proved against him? 15. Before proceeding to consider the contentions of the respective counsel and the above issue no.1, it necessary to first note the scope of this court under Article 226 of the Constitution of India in interfering with the disciplinary proceedings. The Division Bench of this court in T.VENKATA RAMANA v. DISTRICT AND SESSIONS JUDGE, NELLORE[2] held as under at page no.8 of the judgment: “Reference also deserves to be made in the decisions of State Bank of India v . Samrendra Kishore Endow {(1994)2 SCC 537}; State of Uttar Pradesh v. Ashok Kumar Singh {(1996)6 SCC 302}; State of Utter Pradesh v. Nandkishore Shukla {(1996)3 SCC 750}; State of Punjab vs. Baxi Singh {(1997)6 SCC 381}; Uttar Pradesh State Road Transport Corporation v. A.K.Parul {(1998)9 SCC 416}; Union of India vs. J.R.Gheman {(1999)6 SCC 403} and Secretary A.P.SWRE I Socity vs. J.Prathap {(2002)10 SCC 430}, wherein the Supreme Court disapproved the invoking of the doctrine of proportionality by the High Courts. Therefore, it can now be treated as settled law that in exercise of power under Article 226 of the Constitution of India, High Court will not sit in appeal over the findings recorded by the enquiry officer/disciplinary authority and will not interfere with the punishment awarded by the employer. In such mattes, the power of judicial review deserves to be exercised in exceptional cases and that too when the Court is convinced that the procedure adopted by the employer is grossly violative of the statutory rules or the rules of natural justice resulting in prejudice to the employee or the punishment imposed by the employer is shockingly disproportionate to the misconduct found proved. 16. In another judgment reported in UNION OF INDIA v. H.C.GOEL[3] the Apex Court held as under: “20. . .In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311(2), the High Court under Art. 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 charges framed against him are in the nature of quasi- judicial proceedings and there can be little doubt that 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. In fact, in fairness to the learned Attorney- General, we ought to add that he did not seriously dispute this position in law.” 17. The Apex Court in KULDEEP SINGH v. THE COMMISSIONER OF POLICE & ORS.[4] held as under: “6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by any ordinary prudent man or the findings were perverse or made at the dictates of the superior authority. 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 LLJU 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 LLJ 377 (SC) = AIR 1969 SC 983 and Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors., 1976 Labour & Industrial Cases 4 ( SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Others, 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 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.” 18. Considering the above judgments of the Apex Court and also this Court, in another judgment in J.RAVI KUMAR v. CHIEF GENERAL MANAGER, HPCL, VISAKHAPATNAM[5], this court held as under: “11. The quintessence of the above decisions is that though the High Court under Article 226 of the Constitution of India is not an appellate authority over the order passed by the disciplinary authority, yet it is within the jurisdiction under Article 226 of the Constitution of India, to consider whether the principles of natural justice have been followed; whether the charged employee is able to prove that the findings of the disciplinary authority are based on no legal evidence and are perverse findings; whether there is some evidence, which reasonably supports the conclusions of the enquiry officer; whether the enquiry officer is carried away by irrelevant considerations extraneous to the evidence and the merits of the case and mere surmises and conjectures and recorded findings which no ordinary prudent person could have arrived at on such grounds and; in circumstantial evidence, whether the circumstances are fully established and that mere suspicion cannot take the place of proof.” 19. Now in the light of the above legal position, it is necessary to consider issue no.1 whether there is any legal evidence to support the conclusion arrived at by the enquiry officer? 20. The charge against the petitioner is that while he was working as Personal Assistant in the court of I Additional Senior Civil Judge, Nellore, without prior intimation and permission of the appointing authority, allowed his wife to participate in the auction of immovable property in E.P.No.86/2006 in O.S.No.357/2004 on the file of Principal Senior Civil Judge, Nellore for a sum of Rs.6,90,000/- and further he was directed to explain wherefrom the financial resources have come to his wife and he was directed to explain how he allowed his wife to participate in the court auction when he was working in the court of I Additional Senior Civil Judge, Nellore. 21. To the above charge, the case of the petitioner is that there are disputes between his wife and himself and that since March, 2007 he is living separately from her and that he had no knowledge about her participation in the