THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.13698 OF 2007 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) Aggrieved by the proceedings in Roc.No.1526/2007C.4(Con.) dated 26.05.2007 passed by the 1st respondent – Registrar (Management), High Court of A.P., Hyderabad in enhancing the punishment of stoppage of one increment with cumulative effect imposed by the 2nd respondent – District Judge, Krishna District at Machilipatnam in the proceedings dated 8.2.2005; to that of dismissal from service, the petitioner who was working as Field Assistant in the court of Junior Civil Judge, Avanigadda, Krishna District, filed the present writ petition. 2. The petitioner was appointed as Process Server on 21.01.1988 and was promoted as Bailiff/Field Assistant on 22.11.1996 and while working in the court of Senior Civil Judge, Nuzvid, the petitioner was kept under suspension on 4.2.2004 on the allegation that he had demanded illegal gratification of Rs.2,500/- from one Saniboyina Srinivasa Rao s/o Rambanam of Bapalapudi village in Krishna District. The petitioner was issued with the charge memo by the 2nd respondent – District Judge on 26.02.2004, to which the petitioner submitted detailed explanation on 19.3.2004 and the Enquiry Officer after conducting detailed enquiry submitted his report on 3.11.2004 and the petitioner made his representation on 1.12.2004 to the 2nd respondent – District Judge, who is the disciplinary authority, and not being satisfied with the representation of the petitioner, proceedings dated 8.2.2005 were issued by awarding punishment of stoppage one annual increment with cumulative effect. Challenging the same, the petitioner preferred appeal to the 1st respondent – Registrar (Management), High Court of A.P., Hyderabad and the 1st respondent – issued show cause notice in proceedings Roc.No.1526/2005-C4(Con.) dated 15.11.2006 under Rule 37(2) of the Andhra Pradesh Civil Services (C.C.& A) Rules, 1991 (for short ‘the Rules’) calling upon the petitioner to show cause why the punishment of stoppage of one annual increment with cumulative effect as imposed by the 2nd respondent, should not be enhanced to that of dismissal from service. The petitioner submitted his detailed representation on 22.12.2006 and not being satisfied with the same, the 1st respondent passed the impugned order dated 26.5.2007 and enhanced the punishment of stoppage of one increment with cumulative effect imposed by the 2nd respondent – District Judge, to that of dismissal from service. 3. One, Saniboyina Srinivasa Rao is the defendant in the suit in O.S.No.1055/2003 on the file of First Additional Junior Civil Judge, Eluru which was filed for recovery of an amount of Rs.1,00,000/- and in the said suit, the plaintiff filed I.A.No.3498/2003 for attachment before judgment and the same was ordered. Now the allegation against the petitioner is that he along with one D.V.Satyanarayana, another Field Assistant, demanded the said Saniboyina Srinivasa Rao s/o Rambanam of Bapalapadu village, an amount of Rs.2,500/- as illegal gratification, for not resorting to attachment. The case of the petitioner as set out in the affidavit filed in support of the writ petition is that during the course of the enquiry, the complainant never stated that he paid the alleged demanded amount to the petitioner and that no attachment was also made. He stated that the complainant filed the complaint after a period of one and half month after furnishing security as ordered in I.A.No.3498/2003 in O.S.No.1055/2003 and further in the counter filed to the said I.A., the complainant did not state that the petitioner demanded any illegal gratification. Therefore, he stated that there is no evidence to state that the petitioner demanded any amount and the complaint is only an after thought and to harass the petitioner and, any amount of oral evidence without any probabilities, cannot be believed. Hence, he contended that the report of the Enquiry Officer is not based on evidence and hence, cannot be believed. The further case of the petitioner is that the appellate authority instead of adjudicating the appeal filed by the petitioner, issued show cause notice for enhancement of the punishment of stoppage of one annual increment with cumulative effect, imposed by the 2nd respondent – District Judge, to that of dismissal from service. It is stated that though he filed detailed representation, the appellate authority without any additional material to come to a different conclusion from that of the disciplinary authority and without adjudicating the matter, imposed the punishment of dismissal from service. It is further sought to contend that the show cause notice was issued after taking decision to impose major punishment and no prior notice was given and further without conducting any enquiry, the severe punishment of dismissal from service was imposed and the same is liable to be set aside. It is also stated that the petitioner is having large family to support and the employment is the only source of livelihood. With these averments, inter alia, the impugned order was sought to be set aside. 4. The 1st respondent – Registrar (Management), High Court of A.P., filed counter and while supporting the impugned order of dismissal, stated that the Enquiry Officer after considering the evidence on record held that the charges leveled against the petitioner are proved and, therefore, accepting the report of the enquiry officer, the disciplinary authority – District Judge imposed the punishment of stoppage of one annual increment with cumulative effect by proceedings dated 8.2.2005 and by the impugned order, the 1st respondent with cogent reasons, enhanced the punishment to that of the dismissal from service and the same is consistent with Rule 37(2) of the Rules and hence the same is justified. It is further stated that the 1st respondent followed the procedure prescribed under the Rules and the Rules does not contemplate conducting of second enquiry before imposing the punishment by the appellate authority and hence after issuing show cause notice and by following the procedure, the impugned order is passed and the same does not warrant any interference and the writ petition is liable to be dismissed. 5. The learned counsel appearing for the writ petitioner while reiterating the averments made in the writ affidavit strenuously contended that the orders passed by both the respondents are based on no evidence and, therefore, they are liable to be set aside and the petitioner may be directed to be reinstated into service with all the consequential benefits. 6. On the other hand, the learned Standing Counsel appearing for the respondents – High Court of A.P. supporting the impugned order passed by the 1st respondent – Registrar (Management), sought for dismissal of the writ petition. 7. In view of the above rival contentions, the point that arises for our consideration is whether there are any grounds to interfere with the impugned order? 8. It is well settled that this court under Article 226 of the Constitution of India cannot sit as an appellate authority over departmental enquiry and the findings arrived thereof and interfere with the punishment imposed by the lower appellate authority. But there cannot be any dispute that if the findings arrived at by the enquiry officer are based on no evidence or the findings recorded were such that no ordinary prudent man would arrive at or that if the findings are perverse, this court can definitely exercise the power of judicial review and interfere with the findings of the fact recorded by the enquiry officer in the departmental enquiry and further this court is also not precluded from examining the proportionality of the punishment imposed vis-a-vis the gravity of misconduct. 9. In the above perspective, we would like to examine the issue. The charge against the petitioner is as under: “that you Sri D.Satyanarayana Raju and Sri D.Satyanarayana, Amins, Senior Civil Judge’s Court Nuzvid (now under suspension) approached one Saniboina Srinivasa Rao, S/o Rambanam of Bapulapadu village on 12.11.2003 and informed him that a suit was filed against him in the Court at Eluru and that his property would be attached if he fails to furnish security for a sum of Rs.1,00,000/- within 48 hours and demanded an illegal gratification of Rs.2,500/- for not effecting the process of attachment and threatened that his prestige would be defamed in the locality by beating tom-tom and attach his property and that thereby you were guilty of dereliction of duty and grave misconduct and that your conduct was unbecoming of a public servant and derogatory to the prestige of the Department and that you failed to maintain absolute integrity, discipline and a sense of propriety of a public servant and thus violated Rule 3 of A.P.Civil Services (Conduct)Rules, 1964” 10. In order to prove the above charge, the 2nd respondent – District Judge, who is the disciplinary authority, appointed the enquiry officer and before him, the complainant was examined as P.W.1. In the chief examination he deposed that on 12.11.2003 at morning time, he came to Vijayawada from his house situate at Hanumanjunction on his personal work and on the same day evening at 8.00 p.m. he reached his house and his wife was not in happy mood and she informed that on that day at about 8.30 a.m. two amins belonging to Nusvid court came to their house and stated that one case was filed against him on the file of the court at Eluru and that in the meanwhile at about 8.30 p.m. the writ petitioner along with the 2nd delinquent came to their house and stated that some case was filed against him and the same is pending on the file of Eluru Court and attachment order was passed and that the petitioner had demanded illegal gratification of Rs.2,5000/- in order to settle the matter and had asked the complainant to meet him at Nuvid on the next day along with Rs.2,500/- and that on the next day i.e., 13.11.2003 at about 6.00 p.m., he met the petitioner at Nuzvidu and that the petitioner asked for Rs.2,500/- and that when he was informed that he did not bring money, the petitioner prepared a copy of the notice and handed it over to the complainant informing him about the conditional order passed by the court. The notice is marked as Ex.A-2. On 14.11.2003 the complainant filed affidavit to raise the attachment and the said affidavit was marked as Ex.A-3. The complaint submitted by the complainant to the High Court is marked as Ex.A-1. 11. In the cross-examination, while reiterating the demand of the illegal gratification, the complainant further deposed that on 13.11.2003 at about 9.00 a.m. he met his Advocate at Gudivada and that he informed his Advocate about the happening of the incident on 12.11.2003 at his house and that his Advocate told him to bring the notices or summons and advised him to go to Nuzvid and receive the same and after receiving the documents, asked me to come to his house and that from Gudivada he went to Nusvid at 300 p.m. on the same day i.e., 13.11.2003 and met the petitioner and asked him the notice or summons and that the petitioner asked him whether he brought the amount or not and that he did not inform the same to the Superior Officer. He further deposed that after D-1 demanded amount, he had an idea to inform the said fact to the superior officer and that he met his Advocate in between 3.30 p.m. to 4.00 p.m. after D-1 refused to give notices or summons and that his Advocate did not ask D-1 about the notice; that his Advocate also did not inform the Central Nazir about the incident; that the receiving of summons from D-1 is urgent matter; that at that time, the court was functioning; that his Advocate also did not inform the incident to the Judge in the Court hall; that his advocate advised him to pay some amount to the delinquents and obtain documents from them and that his Advocate was busy at that time. It is further deposed that one week or ten days after the incident, he sent a report against the delinquents to the High Court; that Ex.A-1 contains his signature and that it is dated 24.12.2003. 12. With regard to delay, in the cross-examination, the complainant deposed that he consulted his Advocate and his father, before sending Ex.A- 1 and due to consultation only, the delay was occurred. 13. From the above it could be seen that the case of the complainant is that on 12.11.2003 the writ petitioner informed him about the conditional attachment order and demanded an illegal gratification of Rs.2,500/- and asked him to come to the court at Nuzvid and that on 13.11.2003 at about 6.00 p.m. when the complainant failed to pay the amount, the notice was served at the court at Nuzvid. On the other hand, the case of the writ petitioner is that the notice was served on 13.11.2003 at the residence of the complainant. 14. The main allegation against the writ petitioner is that he demanded the amount of Rs.2,500/- from the complainant and it is admitted that the demand did not culminate into payment. Now it is necessary to see whether there is any evidence to believe the version of the complainant. 15. In the present case, it is to be noticed that except the sole testimony of P.W.1, no independent witness was examined. As per the case of the complainant the incident with regard to demand of illegal gratification was known only to him and to his family members i.e., to his wife and father. The wife and the father of the complainant were not examined. Therefore, the evidence of P.W.1 has to be closely scrutinized. 16. P.W.1, as noted above, in the chief-examination, has reiterated the contents in Ex.A-1. In the cross-examination, as already noted above, at one stage, he stated as under: “After D-1 demanded amount, I have an idea to inform the said fact to the superior officer. I met my advocate in between 3.30 p.m. to 4.00 p.m. after D- 1 refused to give notices or summons. My advocate did not ask D-1 about the notices. My advocate also did not inform the Central Nazir about the incident. The receiving of summons from D-1 is urgent matter. At that time, the court was functioning. My Advocate also did not inform the incident to the Judge in the court-hall. My advocate advised me to pay some amount to the delinquents and obtain documents from them and my advocate was busy at that time.. . .” 17. From the above statement of P.W.1 in the cross-examination it is clear that not only to his family members of the complainant, the advocate was also having the knowledge about the alleged demand of illegal gratification. The said advocate was not examined to corroborate the version of P.W.1. Further, the complainant deposed in the above cross-examination that his Advocate also advised him to pay some amount to the writ petitioner and another to obtain the documents. This is not stated in the chief – examination. Further a perusal of Ex.A-1 does not disclose these statements and there is any amount of inconsistency with regard to this statement in the cross-examination and the contents in Ex.A-1. This statement of the complainant against his Advocate is like attributing malafidies to an Advocate, without any supporting material and the same is uncalled for. 18. Therefore, for non-examination of the advocate to corroborate the version of P.W.1, an adverse inference has to be drawn. As noted above, except the evidence of P.W.1, there is no independent evidence on record. The complainant also did not choose to examine at least his family members. At this juncture it is pertinent to note that the observation of the enquiry officer that even if the father and wife of the complainant were examined, the delinquents would contend that they are interested witnesses. This observation is premature, since these witnesses were not examined and the petitioner lost the opportunity to cross-examine them. In these circumstances, the solitary evidence of P.W.1 cannot be relied upon without there being any independent witness on record. 19. Nextly it is to be noticed that the alleged incident is on 13.11.2003 and the complaint was filed on 24.12.2003 i.e., after a period of about one and half month. The explanation offered by the complainant and which, was accepted by the enquiry officer, is that he consulted his advocate and his father before sending Ex.A-1 and, therefore, the delay has occurred. This explanation, in our considered view, is not satisfactory for the reason that as per the above extracted portion, the complainant deposed that he had an idea to inform the alleged demand to the superior officer. Further after receipt of the notice he filed Ex.A-3 counter affidavit to the I.A. filed for attachment and in the said affidavit, he did not mention about this allegation, since the case of the complainant is that the writ petitioner demanded illegal gratification and that he would settle the issue. It is also to be seen that when he had an idea on the same day to inform about the incident to the superiors, there is no reason for him to wait for one and half month. In the above extracted portion he deposed to the effect that his Advocate also had knowledge about the demand of illegal gratification and further he goes to an extent of stating that his Advocated also advised him to pay the amount. The explanation offered by him is that he consulted his father and his Advocate before filing Ex.A-1. When his case is that his Advocate himself asked him to pay the amount, then consulting him and filing Ex.A-1 after a period of one and half month, is most improbable and hence cannot be believed and also cannot be said to have satisfactorily explained the delay. Further, this explanation, does not find place in Ex.A-1 complaint. 20. The specific case of the complainant is that Ex.A-2 notice was served on 13.11.2003 at 6.00 p.m. at Nuzvidu Court Complex. The case of the writ petitioner is that it was served at the residence of the complainant on the said date. When there are rival claims, the enquiry officer, ought to have summoned the records of Nazarat section of the court and his failure to summon them and only relying on the probabilities of the case based on non- obtaining of endorsement on the warrant and attachment of property form, shows that the enquiry was conducted in a summery manner. In view of the above circumstances, the probabilities cannot be taken into consideration. 21. Furthermore from the material on record it could be seen that the petitioner was appointed as Process Sever on 21.01.1988 and he was promoted as Bailiff/Field Assistant on 22.11.1996 and he was suspended pursuant to the present charge of alleged demand of illegal gratification on 4.2.2004. The petitioner has put in nearly 16 years of service. There is no material either in the impugned order or before this court about the past conduct or that there are any allegations of similar nature. Therefore, while considering the allegations of the present nature, and when there is no independent evidence except that of the complainant, the past conduct of the delinquent also needs to be considered as one of the factors. 22. From the above, the irresistible conclusion that can be arrived at is that the enquiry officer had conducted the enquiry in a most perfunctory manner and relied on probabilities or rather on conjectures and surmises and found the writ petitioner guilty, which cannot be sustained. 23. The facts in the decision of the Apex Court reported in NARMADAPD. YADAV v. STATE OF MP. AND OTHERS[1] are similar to the facts of the present case. In the said case, there was a similar allegation against the appellant therein who was a Head Constable in Police Department. The allegation is that he demanded bribe of Rs.1,000/- for giving back licence, cycle and cash of Rs.50/- belonging to one ‘R.S.’. Based on enquiry officer’s report, Superintendent of Police imposed punishment of dismissal and on appeal, the Director General of Police ordered reinstatement and reversion to the post of Constable for a period of two years and challenging the same, the appellant moved the Administrative Tribunal. The Administrative Tribunal confirmed the penalty imposed the appellate authority. In the appeal before the Apex Court, it was found that no independent witness has been examined to prove demand and taking money by appellant and no satisfactory evidence was adduced to prove the charge. In these circumstances, the Apex Court held that the penalty imposed by appellate authority depromoting the appellant from the post of Head Constable to that of a Constable, could not be countenanced. It was further found that the appellant had unblemished service record of 21 years. The Apex Court eventually set aside the punishment inflicted on the appellant. 24. Therefore, in the light of the above circumstances and following the judgment of the Apex Court, the writ petitioner deserves to be exonerated from the charge leveled against him and the impugned order is liable to be interfered with. The issue framed at paragraph no.7 is accordingly answered. 25. For the foregoing reasons, the impugned order and the order of the enquiry officer are set aside, as the same are based on no evidence and accordingly writ petition is allowed and the writ petitioner is entitled to all the consequential benefits, both service as well as monitory and shall be extended to the petitioner forthwith. 26. In the circumstances of the case, there shall be no order as to costs. -------------------------------- V.V.S.RAO,J ----------------------------------- G.CHANDRAIAH,J AVS DATE: 09.07.2008 [1] 2007(3) ALT 14.2 (DN SC) = 2006 (8) SCJ 861