THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P. No. 27348 of 2008 Dated 05–10-2010 Between: G. Venugopal …Petitioners Vs. The District Judge, Kurnool District, Kurnool and another. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P. No. 27348 of 2008 ORAL ORDER: (Per: The Hon’ble Sri Justice Goda Raghuram) The petitioner, an attender in the Last Grade Services of the State and serving as such in the Court of the learned Senior Civil Judge, Allagadda, Kurnool District and was dismissed from service by the proceedings of the 1st respondent dated 01-03-2006. His appeal preferred to the 2nd respondent was rejected by the order dated 19-09-2006. He is thus before this Court challenging the order of dismissal and the order confirming the order of dismissal. The relevant chronology of events: Ø On 25-10-2004, the learned Senior Civil Judge, Nandikotkur addressed a Demi Official letter to the learned Principal District Judge, Kurnool stating that records in I.P.No. 32 of 2002 of that Court were found missing on 24-10-2004 and the Officer suspects the writ petitioner of complicity in the matter and requested the District Judge to transfer the petitioner and to take appropriate action in the matter. Ø The 1st respondent—the District Judge on 02-11- 2004 issued a memo calling for explanation of the petitioner. Ø In response the petitioner submitted his explanation on 09-11-2004. This explanation while equivocal on the allegations contained in the Presiding Officer’s report to the learned Principal District Judge regarding the missing records, however made allegations of sexual impropriety by the Presiding Officer, alleged to have occurred on 24-10-2004. Ø By the order dated 10-12-2004, the 1st respondent called for a preliminary inquiry and a report in the matter. Preliminary inquiry was conducted and consequent on submission of the report of the preliminary inquiry, the 1st respondent on 02-03-2005 formulated two articles of charge and along therewith the statement of imputations of misconduct, and Annexures 2 and 3, being the list of documents and the list of witnesses by which and by whom the articles of charges framed against the petitioner are proposed to be sustained, were communicated. Subsequently, an Inquiry Officer was appointed to conduct inquiry into the two articles of charge. The 1st charge alleges misplacing the record in I.P.No. 32 of 2002 from the residence of the learned Senior Civil Judge, Nandikotkur and thus having committed misconduct; the 2nd charge is to the effect that the petitioner had made scandalous allegations against the officer, in his explanation to the memo issued to him. Ø On 06-10-2005 after conclusion of the disciplinary inquiry, the inquiring authority forwarded his report to the 1st respondent – disciplinary authority. The Inquiring authority found the petitioner guilty of both charges. Ø The petitioner makes no complaint of any procedural infirmities in the conduct of the inquiry. The disciplinary authority communicated a copy of the inquiry report to the petitioner and called for his response thereto and issued a final show cause notice on 21-10-2005. On 26-11-2005 the petitioner submitted his explanation and also sought clemency. The 1st respondent by the order dated 01-03-2006 concurred with the findings of the inquiring authority with regard to the finding of guilt of the petitioner as regards both the charges and imposed the penalty of dismissal from service. The 1st respondent held that taking into account the gravity of the charges proved, no case was made out for taking a lenient view in the matter and that such delinquency must sternly dealt with else the administration of courts will collapse. The Officer holding the office of the disciplinary authority – the 1st respondent at the relevant time was Sri G. Krishna Mohan Reddy, the Principal District Judge, Kurnool. Ø Aggrieved by the order of dismissal from service imposed by the 1st respondent, the petitioner preferred an appeal to the 2nd respondent on 29-04- 2006. The 2nd respondent, by the order dated 19- 09-2006 confirmed the penalty of dismissal imposed by the disciplinary authority. Ø It requires to be noticed that the 2nd respondent – appellate authority disagreed with the conclusion of the disciplinary authority on the finding of guilt in respect of the first charge, recorded by the primary authority. The appellate authority held that there was no direct evidence to establish that the petitioner was responsible for missing of the bundle (the component of first charge). Ø Insofar as the second charge, of making scandalous, wild and reckless allegations against the Presiding Officer, the 2nd respondent – appellate authority concurred with the findings recorded by the Inquiring authority as well as the disciplinary authority. In these proceedings, the learned counsel for the petitioner does not seriously canvass any challenge to the validity of the primary or appellate orders as regards the conclusion of the guilt in respect of charge No.2. Sri Rama Rao. M, the learned counsel for the petitioner contends that the Inquiring authority and the Disciplinary authority committed fatal errors in recording a finding of guilt as regards the first charge. This contention is misconceived since the appellate authority reversed the finding of the primary authority as regards the guilt of the petitioner qua the first charge and found the petitioner not guilty of charge No.1. Charge No.2 pertains, as already recorded, to the scandalous, wild and reckless allegations made by the petitioner as to the sexual impropriety committed by the Presiding Officer allegedly in an open yard in front of her bunglow. This allegation is reiterated by the petitioner even in his representation dated 26-11-2005 addressed to the appellate authority during the course of appeal. Be that as it may. It requires to be noticed that not only did the petitioner fail to adduce any evidence in support of his allegations of sexual impropriety by the Presiding Officer, he did not even cross-examine the Officer, who testified as the first witness for the department, on this allegation. Sri Rama Rao, would very fairly concede that making such an allegation was an act of great indiscretion on the part of the petitioner who is stated to have been unwell and beset with number of domestic troubles during the period in question. On a careful consideration of the record viz., the report of the Inquiring authority, the order of the disciplinary authority and of the 2nd respondent – appellate authority and in view of the contentions urged on behalf of the writ petitioner, we find no material to disagree with the conclusion of guilt of the petitioner as regards charge No.2, which is the sole charge which is sustained by the appellate authority. Sri Rama Rao wousld present two principal contentions substantively. (a) that the appellate order of the 2nd respondent dated 19-09-2006 was passed by Sri G. Krishna Mohan Reddy as the Registrar (Management) of the High Court of Andhra Pradesh; and as Sri G. Krishna Mohan Reddy was the disciplinary authority who had passed the primary order dated 01-03-2006, the appellate order dated 19- 09-2006 is void; and (b) that the second charge was relatively minor in nature compared to the first charge of purloining/misplacing the record in I.P.No. 32 of 2002 and therefore the confirmation of the penalty of dismissal from service (passed by the 1st respondent – disciplinary authority on the basis of finding of guilt on both charges), by the 2nd respondent – appellate authority even after reversing the finding of guilt on the first charge and confirming the finding of the guilt of charge No.2, constitutes an irrational exercise of discretion and that the imposition of the penalty of dismissal from service on the singular minor charge of making scandalous, wild and reckless allegations against the Presiding Officer of the Court of the learned Senior Civil Judge, Nandikotkur is vitiated and warrants interference in judicial review. The above two contentions do not commend acceptance by this Court. Though the order of the 2nd respondent – appellate authority dated 19-09-2006 contains some ambiguities, on a substantive consideration of the text and tenor of the order, it is clear that the appellate order is not passed by Sri G. Krishna Mohan Reddy, the then Registrar (Management), High Court of Andhra Pradesh. The order has been passed by a Committee of the Hon’ble Judges constituted for the purpose. We have called for and perused the record submitted by the learned standing counsel for the 2nd respondent – Smt. Bhaskara Laxmi and find therefrom that there was an independent consideration of the petitioner’s appeal by a Committee of Judges constituted for the purpose of considering disciplinary matters, presided over by the Hon’ble the Chief Justice of the High Court. In fact, the order dated 19-09-2006 clearly records in the first paragraph that on a consideration of the appeal of the petitioner …”the High court is pleased to pass the following order …: We have carefully perused the order of the 2nd respondent dated 19-09-2006 and have compared the same with the order on the file under the signature of the Hon’ble Judges of the Committee presided over by the Hon’ble the Chief Justice of the High Court of Andhra Pradesh and find that the order which is communicated by the Registrar (Management) (Sri G. Krishna Mohan Reddy) is a summary of the text of the order passed by the Committee of the Hon’ble Judges and employs identical language as in the order signed by the Committee of Hon’ble Judges. The petitioner cannot therefore gainfully contend that Sri G. Krishna Mohan Reddy had passed the order as the disciplinary authority on 01-03-2006, as the Principal District Judge, Kurnool and thereafter had also passed the appellate order dated 19-09-2006 as the Registrar (Management) of the High Court of Andhra Pradesh and that the order is therefore unsustainable. On this analysis, this contention fails and is accordingly rejected. The other contention is that the order of dismissal imposed for the singular “minor” charge No.2 is grossly disproportionate to the magnitude of the misconduct ultimately found against the petitioner. This contention too, is in our considered view misconceived. While the learned counsel for the petitioner would claim that the second charge is minor in nature, we do not think so. In fact the first charge is a minor charge since charge No.1 does not attribute any evil or extraneous motives to the petitioner for misplacing or removing the file in I.P.No. 32 of 2002 from the residence of the learned Senior Civil Judge, Nandikotkur. Taken in its context charge No.1 alleges negligence in the performance of duties by the petitioner as an Attender at the residence of the Senior Civil Judge. Nothing more than venal is attributed as charge No.1. The second charge is in our considered view the graver of the two charges. The second charge is that the petitioner made scandalous, wild, and reckless allegation of sexual impropriety against the Presiding Officer of the Court of the Senior Civil Judge, Nandikotkur. The petitioner has asserted in his explanation dated 09-11-2004, in response to the memo dated 02-11-2004 issued by the 1st respondent that: On 24-10-2004 at 9.00 A.M. I went to attend duty at the residence of the Senior Civil Judge. On that day at 11-00 AM, Stenographer came for dictation. I placed chairs and easy chair under the Kanuga tree in front the gate for the purpose of dictation. Entire case records from the box have been brought by the officer and she relaxing in easy chair dictated the judgments. I came out at 12.00 noon for passing urine. At that time the Stenographer and the officer were in found embraced in compromise position. At that there were in surrounding bungalows. As I saw the said incident, she sent away the Stenographer. But on 25-10-2004 having discussed together, Stenographer and Officer called me at 5.00 PM at told that the case bundle of I.P.No. 32 of 2002 is missing and you committed the mischief and if you do not agree for the same, she would see my end by informing the same to the District Judge, Krishna Mohan Reddy, who would dance to her tune. She asked me to go out, by abusing me. Therefore, I request to kindly excuse me. The accusation leveled by the petitioner against the Presiding Officer impacts the reputation of the Officer and what is more on a vital aspect relevant of the modesty of a woman, in particular in the Indian society. The petitioner has even failed to cross-examine the Officer while she testified as P.W.1, he has chosen to reiterate the allegation in his representation dated 26-11-2005 as well. Surely and indisputably charge No.2 constitutes a major misconduct. The question whether if a penalty were imposed for both the charges No. 1 and 2 and if finding on charge No.1 is found unsustainable, the punishment can be sustained in respect of charge No.2 alone, would have fallen for our consideration. In the circumstances of this case however, the petitioner’s appeal against the order of the disciplinary authority was partly allowed by the 2nd respondent which found charge No.1 not to have been established and exonerated the petitioner of that charge. The 2nd respondent concurred with the disciplinary authority and the antecedent findings of the Inquiry Officer with regard to the finding of guilt on charge No.2 and after due application of mind recorded that the punishment of dismissal is justified in respect of charge No.2. Be that as it may. As pointed out by Shah, J speaking for the Constitution Bench in State of Orissa v. Bidyabhushan[1], it is held …the Court, in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanor established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the tribunal were unassailable, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore, if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of rules of natural justice. (Emphasis is ours). Sri Rama Rao, learned counsel would place reliance on the judgment of the Constitution Bench in The State of Mysore v.K. Manche Gowda[2] to contend that the Disciplinary Authority, the 1st respondent, erred in taking the previous conduct of the inquiries pending against the petitioner into consideration while passing the order of penalty of dismissal and that since such anterior inquiries pending against the petitioner were not put to the petitioner, he was denied a fair and reasonable opportunity to canvass appropriate mitigating circumstances in the matter of imposition of penalty. While the principle enunciated in Manche Gowda (2 supra) is unexceptionable and well established, the contention advanced on the basis of this precedent is a non-sequitur in the facts and circumstances of this case. The 2nd respondent – appellate authority disagreed with the finding of the disciplinary authority with regard to charge No.1 and did not also allude either expressly or by any compelling implication of the text of the appellate order, to any previous conduct of the petitioner nor to pending inquiries. The punishment of dismissal as imposed by the primary authority was confirmed by the appellate authority exclusively on the basis of the finding of guilt as regards charge No.2. The petitioner has no grievance as to any procedural irregularity in the processing of inquiry as regards charge No.2 or the appellate process. Reliance is also placed on the judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd., v. Mukul Kumar Choudhuri[3] in support of the contention that the ‘doctrine of proportionality’ is a well recognized concept of judicial review and that grossly disproportionate penalty imposed in domestic inquiry is liable to be corrected in judicial review. The principle is unexceptionable apart from being binding. The question is whether the application of this principle is appropriate in the facts and circumstances of the present case. The petitioner has been rightly and legitimately found guilty of a serious charge of making scandalous, wild and reckless allegations against the Presiding Officer of the Court of the Senior Civil Judge, Nandikotkur. The Inquiring Authority rightly found him guilty of the charge No.2. This conclusion was approved by the disciplinary authority, the 1st respondent and confirmed in appeal by the 2nd respondent. As already recorded, we find no infirmity with this conclusion. In fact charge No.2 was the graver of two charges and is a very serious charge which alleges sexual impropriety against the Presiding Officer, couched in wanton and reckless allegations. Having been found guilty of such a serious charge, the disciplinary authority in the plentitude of his rational discretion considered that appropriate penalty would be one of dismissal from service though on finding of guilt in respect of charge No.1 as well. The 2nd respondent – appellate authority which is the head of the Judicial Department in the State, while reversing the finding of the disciplinary authority with respect to the guilty recorded qua charge No.1 has considered it appropriate, proportionate and rational to confirm the penalty of dismissal even as regards the finding of guilt of charge No.2 alone. We find no perversity in the exercise of discretion in the appellate decision of the 2nd respondent with regard to confirmation of the penalty of dismissal on a finding of guilt on charge No.2, notwithstanding reversal of the disciplinary authority’s finding as regards charge No.1. On the analysis above, we find no infirmity in the order of the disciplinary authority, the 1st respondent dated 01-03-2006, to the extent confirmed by the order of the 2nd respondent – appellate authority – dated 19-09- 2006, warranting interference under Article 226 of the Constitution. There are no merits in the writ petition. It is accordingly dismissed, but in the circumstances of the case, without costs. JUSTICE GODA RAGHURAM JUSTICE SAMUDRALA GOVINDARAJULU Dated: 05-10-2010 Pvks/* [1] AIR 1963 SC 779 [2] AIR 1964 SC 506 [3] AIR 2010 SC 75