THE HON'BLE THE ACTING CHIEF JUSTICE BILAL NAZKI and THE HON'BLE DR JUSTICE G.YETHIRAJULU Writ Petition No. 10521 of 2004 Date: 07--10--2005 Between: T.M.Mani Kumar, S/o Late Prasad Rao, II Addl.Junior Civil Judge Court, Guntur, R/o Budampadu Village, Guntur District. ..... PETITIONER AND 1 The Registrar (Administration), High Court of A.P. Hyderabad. 2 The District Judge, Guntur, Guntur District. ..... RESPONDENTS ORDER: (per the Hon’ble Dr.Justice G.Yethirajulu) This writ of Mandamus is filed by an Ex-Attender of the Unit of the District Judge, Guntur, praying to declare that the Order of the District Judge, Guntur, dated 04.04.2002 and the proceedings of the High Court of Andhra Pradesh, dated 28.08.2003 dismissing him from service as illegal, arbitrary and violative of the principles of natural justice and contrary to the law laid down by the apex Court. 2. The averments made by the petitioner in the affidavit filed in support of the writ petition are briefly as follows: The petitioner worked as an Attender in the Unit of the District Judge, Guntur, with effect from 17.06.1996. In the year 1999 he was transferred from Guntur to Gurajala. On his representation that his wife is a heart patient, who requires necessary treatment at Guntur, the District Judge transferred him from Gurajala to Guntur and posted him to the Court of the Special Judicial Magistrate of First Class for Prohibition and Excise Offences, Guntur, through the proceedings dated 03.07.2000. He was again disturbed and transferred to Gurajala through the proceedings dated 02.12.2000. He filed Writ Petition No.24144 of 2000 questioning the order of transfer and the Hon’ble High Court while dismissing the writ petition, observed that the District Judge, Guntur, may consider the representation of the petitioner on its own merits. In pursuance of the order of the High Court, the petitioner submitted a representation on 11.06.2001 and the District Judge, Guntur, through the proceedings dated 01.09.2001 again transferred him to Guntur and posted to II Additional Junior Civil Judge’s Court, Guntur. When the petitioner was asked to attend duties at the residence of II Additional Junior Civil Judge, Guntur, he filed Writ Petition No.83 of 2002 seeking declaration that he should be allotted duties in fair and just manner. The High Court dismissed the said writ petition on 11.02.2002 with costs, observing that the disciplinary proceedings pending against the petitioner shall be concluded on their own merits uninfluenced by the observations made by the High Court. The petitioner was issued a charge-sheet dated 03.07.2001 with three charges and an Enquiry Officer was appointed. The petitioner was issued another charge-sheet on 08.10.2001 with one charge and another enquiry was also ordered. The petitioner requested the District Judge, Guntur, to appoint an Enquiry Officer of higher rank than the Junior Civil Judge, but, the said request was rejected by the District Judge. After conclusion of the enquiries, the District Judge, Guntur, issued show cause notices dated 01.03.2002 proposing to dismiss him from service under each enquiry. Despite his explanation, the District Judge, Guntur, passed a common final order on 04.04.2002 and issued the proceedings imposing the penalty of removal from service. The petitioner preferred an appeal before the High Court on 13.05.2002 and the High Court rejected the appeal on 28.08.2003. The petitioner, being aggrieved by the order of removal, filed the present writ petition, alleging that the District Judge while imposing the penalty of removal from service violated the principles of natural justice and the order of the District Judge is contrary to law laid down by the Supreme Court. The District Judge did not give any reasons in the show- cause notice for disagreeing with the finding of the Enquiry Officer. The petitioner, therefore, urged to protect his rights available under Circular dated 24.02.1992 of the High Court and the order of the High Court dated 18.02.1998 in W.P.No.33020 of 1997. The penalty of removal from service is shockingly disproportionate to the gravity of misconduct. Therefore, it is liable to be set aside. Hence, the writ petition. 3. The District Judge, Guntur, as the second respondent, filed a detailed counter denying the allegations made by the petitioner contending that the petitioner was not inclined to attend the duty at the residence of the officer. He refused to attend the residential duty on the pretext that it is not part of the official duty of Attender. The petitioner was not amenable to any advices, orders and instructions etc. He was exhibiting his belligerent attitude in not attending to his duties as Attender. Therefore, the question of his continuing as such would not arise. The petitioner has no respect for the institution or devotion to duty. He was highly indisciplined and disobedient. There are no mitigating circumstances to take a lenient view in this matter which tantamount to conduct abhorrent of a Government Servant. After making the above observations and considering the gravity of the misconduct, the District Judge, Guntur, awarded the punishment of removal from service, though it is a fit case for dismissal from service, which is likely to jeopardize his chances of employment somewhere. 4. In the administrative appeal preferred by the appellant, the High Court was fully convinced that the District Judge, Guntur, was justified in imposing the punishment of his removal from service. There are no grounds to interfere with the order of the District Judge, Guntur. The writ petition is, therefore, liable to be dismissed with costs. 5. In the light of the contentions of the respective parties, the point for consideration is: whether the order of the District Judge, Guntur, dated 04.04.2002, removing the petitioner from service and confirmed by the High Court through the Order dated 28.08.2003 is illegal, arbitrary and violative of principles of natural justice? And whether it is liable to be set aside? 6. Point:- The petitioner was appointed as an Attender in the unit of second respondent in the year 1996 on compassionate grounds on account of the medical invalidation of his father while in service. His father died subsequently and the petitioner was appointed as an Attender with effect from 17.06.1996. The petitioner started asserting his rights from the date of his transfer from Guntur to Gurajala. He filed Writ Petition No.23144 of 2000 questioning the order of transfer dated 02-12-2000 before the High Court. In the affidavit filed in support of the writ petition, the petitioner alleged as follows: 1. Ever since he took charge in the Court of the Special Judicial Magistrate of First Class for Excise and Prohibition Offences, Guntur, the Presiding Officer was ill-treating and causing extreme mental agony on one pretext or the other because the Presiding Officer belongs to superior caste and he belong to scheduled caste. 2. The Presiding Officer issued a memo on 17.07.2000 arbitrarily and illegally attributing absence from duty. 3. The Presiding Officer in the memo dated 17.07.2000 alleged that he refused to get cinema tickets as instructed by him, but fetching of cinema tickets is not his duty. 4. The Presiding Officer issued another memo. dated 21.07.2000 alleging that he absconded from duty from 1.15 p.m. to 1.50 p.m. and caused inconvenience to the functioning of the Court. 5. The Presiding Officer issued another memo dated 28.07.2000 alleging that he was responsible along with two other attenders for the missing of a calling bell. 6. The Presiding Officer issued another memo, dated 07.08.2000 alleging that he did not keep the scooter outside and did not clean it by attributing disobedience, but it is not part of the duty of the petitioner. 7. The Presiding Officer required him to water the garden and when he refused, a memo dated 19.09.2000 was issued though it is not his duty as per the Circular dated 24.02.1992 issued by the High Court. 8. Since the petitioner was not surrendering to the Presiding Officer, he brought illicit and unjustified pressure on the District Judge and as a result of it, the District Judge issued the proceedings dated 02.12.2000 transferring him from Guntur to Gurajala. 9. It is unjust to victimize the petitioner by abusing the powers vested in the District Judge and the Magistrate. 10) The petitioner is denied equality before Law and equal protection of Law on the ground of caste, which is violative of Articles 14, 15, 16 and 21 of the Constitution of India. 7. In Writ Petition No.83 of 2002, which was filed challenging the action of II Additional Junior Civil Judge, Guntur, in exclusively allotting the petitioner daily guard duty at night at his residence, the petitioner alleged as follows: 1. Allotment of daily duty at night at the residence of II Additional Junior Civil Judge is an act of victimization on account of the petitioner refusing to work at the residence of the Presiding Officer during day time. 2. The refusal of the petitioner to work at the residence of the Presiding Officer during day time was based on the Circular in ROC No.216/92-C1, dated 24.02.1992, issued to all the lower Courts on the administrative side by the High Court. 3. The work at the residence of the Presiding Officer is not one of the eleven legitimate duties of the Court Attender, therefore, allotment of night duty to the petitioner at the residence of the Presiding Officer would amount to victimization. 4. The Court Attenders can be asked to do only legitimate work at the residence of the Presiding Officer, such as to guard the court property at night as clarified by the High Court in Circular dated 24.02.1992. 5. The list of legitimate duties enumerated in G.O.Ms.No.565 G.A.D. (Ser.B), dated 24.10.1992 does not include any day time work whatsoever at the residence of the Presiding Officer. 6. The petitioner’s protest for allotting day time work at the residence of the Presiding Officer was construed as an act of insubordination and disciplinary proceedings have been initiated against him. 8. In the above back ground of asserting of rights by the petitioner, it is essential to consider the merits of the departmental enquiry and the legality of the order of removal passed by the District Judge. The following are the articles of charge framed against the petitioner in the first enquiry. Charge No.1: That you while functioning as Attender in Special Judicial Magistrate of First Class for Prohibition and Excise Offences Court, Guntur, during the period July, 2000 to December, 2000 used to absent yourself from duties and submitting casual leaves without obtaining prior permission and caused lot of inconvenience to the functioning of the Court and thereby committed misconduct in the discharge of your official duties. Charge No.2:- That you while functioning as Attender in Special Judicial Magistrate of First Class for Prohibition and Excise Offences Court, Guntur (during the period 7/2000 to 12/2000) have entered the chambers of the Presiding Officer on 18.10.2000 at 5.00 p.m. and demanded to grant casual leave as of right and shouted vulgarly in the presence of staff members as “ ” and thereby committed gross disobedience, insubordination and dereliction of duties in the discharge of your official duties as Attender and thereby committed misconduct. Charge No.3:- That you while functioning as Attender in the Court of Special Judicial Magistrate of First Class for Prohibition and Excise Offences, Guntur, during the period 7/2000 to December, 2000 have committed in the discharge of your official duties as detailed hereunder--- 1. Unauthorised absence from duty i.e. Court hall duty from 1.15 p.m. to 1.50 p.m. on 21.05.2000; 2. You are not vigilant thereby the calling bell was not found from 25.07.2000 morning; 3. Absented from official duty as Attender from 3.00 p.m. to 5.00 p.m. on 18.09.2000; 4. Failed to do the duties entrusted to you; And thereby you have committed misconduct.” 9. The following is the article of charge framed against the petitioner in the second enquiry: “That you Sri T.M.Mani Kumar, while functioning as Attender, in the Court of II Additional Junior Civil Judge’s Court, Guntur, joined duty on 18.09.2001 at 5.30 p.m. Attender and started dictating terms to the Presiding Officer stating that you will not attend any domestic work in the residence of the Officer and in your explanation also you have stated as follows:- “On the contrary, entrusting domestic work to attenders is abuse of authority and violation of law and human rights. Extracting labour by force, threats and undue influence amounts to forced labour and violative of the Constitution of India. I submit that I know the latest position only through the said circular. If there is any circular to its contrary which ordains that I should do domestic work in the residence of the Judicial Officers-----.” And that the aforestated conduct by you being a Government Servant amounts lack of obedience and dictating terms to the Presiding Officer and thereby you are disobedient, indiscipline and lack of devotion to duty in the discharge of your official duties as Attender and thereby committed misconduct.” 10. In the first enquiry, the Enquiry Officer found the petitioner guilty of Charge No.2 and exonerated him for the Charges 1 and 3. The second respondent differed with the view expressed by the Enquiry Officer regarding Charge No.1 and held Charge No.1 also proved against him along with Charge No.2 and a show-cause notice was issued directing the petitioner to explain as to why he shall not be imposed the punishment of dismissal from service for Charges 1 and 2 proved against him. The petitioner gave his explanation denying the commission of any misconduct. 11. In the second enquiry, the Enquiry Officer submitted a report holding that the charge was proved against the petitioner. The second respondent accepted the same, found the petitioner guilty of the charge and issued show-cause notice to the petitioner to explain as to why he shall not be dismissed from service for the charge held proved against him by supplying a copy of the report of the Enquiry Officer. The petitioner submitted his final explanation, which is also reproduction of the explanation given in the first enquiry. The District Judge passed a common order by considering the material covered by both the enquiries. 12. The District Judge, Guntur, in the final order observed that after posting of the petitioner in the Court of II Additional Junior Civil Judge, Guntur, by transferring him from Gurajala, he started dictating terms to the Presiding Officer. He made it clear that he would not attend to duties as residential attender, which was mentioned by the Presiding Officer of the said Court while addressing Ex.P-1 letter to the second respondent on 19.09.2001, which reads as follows: “I submit that till 6.30 a.m. today i.e., 19.09.2001 I was under strong belief and impression that I can adjust with any staff member or any staff member can adjust with me, vice-versa, but the same is proved to be false, when Mr.T.M.Mani Kumar of this Court, who joined duty at 5.30 p.m. on 18.09.2001 (Yesterday) came into my office room while I was busy with my record and started dictating terms to me, that he will not attend any domestic work in the residence of the Officer. ……………………………………………………………………………………. …………………………………………………………………. I further submit that I am seriously apprehending that his presence at my residence may also have serious implications in my regular judicial work. It is under these circumstances, I am compelled to bring it to the notice of the Hon’ble District Court, as the individual has exhibited his disinterest to attend the residential duties.” 13. The Special Judicial Magistrate of First Class for Prohibition and Excise Offences, Guntur, under whom the petitioner worked also complained in his letter dated 16.04.2001, which reads as follows: “First I intend to submit a brief back ground of the situation prevailing in the Court and tenacious atmosphere being created by the said Attender (charged employee) both at my residence and office causing mental agony to me and my family members thereby rendering judicial work impossible. The said attender Sri T.M.Mani Kumar right from the time he was posted in my court has been encouraging indiscipline among the other attenders and my elderly counseling and oral instructions to desist him from such things did not yield any expected result.” 14. In the explanation dated 01.10.2001 given by the petitioner in the second enquiry, he stated as follows: “……………………………………………………………………………I submit that I work according to law. I submit that if the principle of rule-of-law, the much eulogized principle of modern governance is to be honoured, one should come to terms with the fact that domestic work in the residences of Judicial Officers is not part of official duty of attenders. It becomes violation of human rights of the attenders if we are entrusted with any domestic work. There was, hither to, resistance from the A.P. Judicial Class IV Employees Association in this regard. ………………………………………………………………………………………………………………………………………………………… I submit that I would not like to violate any law nor I would like it to be violated by any one to the detriment of my human rights. I submit that I hope that my self-respect is to be respected by non-entrustment with jobs other than those, which form part of my official duty. …………………………………………………………………………… I submit that refusal to do domestic work in any case is not dereliction of duty or disobedience. However, it is acting lawfully, legally and in the legitimate spectrum but not outside. On the contrary, entrusting domestic work to the attenders is abuse of authority and violation of law and human rights. Extracting labour by force, threats and undue influence amounts to forced labour and violative of the Constitution of India.” 15. In the Order dated 11.02.2002 in W.P.No.83 of 2002 at para.11, the High Court observed as follows: “It is thus seen that for the sake of administrative convenience, the petitioner herein was asked to attend to night duty only which is in accordance with the circular issued by the High Court referred to supra. Therefore, the contention of the petitioner that the action of the 1st respondent in allotting to daily night duty at the residence of the Presiding Officer is unlawful and would amount to victimization is wholly baseless and incorrect and far from truth. In our opinion, the petitioner is liable to be proceeded against departmentally for insubordination and dereliction of duty.” 16. In the first enquiry, P.W.1 to P.W.4 were examined and Ex.P.1 to Ex.P.46 were marked on behalf of the Disciplinary Authority and on behalf of the petitioner, D.W.1 was examined and Ex.D.1 to Ex.D.7 were marked. In the second enquiry, P.W.1 was examined and Ex.P.1 to Ex.P.5 were marked on behalf of the Disciplinary Authority. No oral or documentary evidence was adduced by the petitioner. 17. In the first enquiry, the first charge relates to the absence of the petitioner from duty and submitting casual leave application without obtaining prior permission and causing lot of inconvenience to the functioning of the Court. The Presiding Officer of the Excise Court as P.W.1 stated that the petitioner used to absent himself from duties particularly while working at the residential bungalow and was sending leave applications subsequently. The petitioner used to apply for earned leave frequently. The Enquiry Officer by taking into consideration the evidence of P.W.1 in the cross-examination and by taking into consideration the sanctioning of various leaves by the District Judge concluded that the first charge levelled against the petitioner failed. Regarding the second charge that the petitioner entered the chamber of the Presiding Officer on 18.10.2000 at 8.00 a.m. and demanded to grant casual leave as of right and shouted vulgarly in the presence of staff members, the Enquiry Officer relied on the evidence of P.W.1 to P.W.4 and Ex.P.36 to Ex.P.42. The Presiding Officer as P.W.1 stated that the Head Clerk placed the casual leave application of the petitioner for 19.10.2000 and it was rejected by the Presiding Officer on the ground that there was shortage of men and the presence of the petitioner was required to attend the Court duty. While he was attending the other administrative work and in the presence of P.W.2 to P.W.4, the petitioner entered his chamber and demanded to grant casual leave on 19.10.2000 or else his application may be forwarded to the District Judge, Guntur; that he informed the petitioner that the casual leave cannot be granted due to shortage of men and asked him to leave the chamber. Immediately, the petitioner uttered “You do like this, I will do whatever that is possible for me” in the presence of the other staff members. He thought that the said act of the petitioner amounts to disobedience and gross insubordination. He recorded the statements of P.W.2 to P.W.4 and issued show- cause notice to the petitioner calling for his explanation, but the petitioner denied the said incident in his explanation. He waited till December, 2000 expecting change in the attitude of the petitioner, but there was no change, therefore, he submitted a confidential letter dated 02.12.2000 to the District Judge, Guntur along with the casual leave application of the petitioner dated 18.10.2000 for orders. The Enquiry Officer observed that the evidence of P.W.1 inspired confidence in him, that the evidence of P.W.1 to P.W.4 clearly established that the delinquent uttered the words as mentioned above pointing out P.W.1. The Enquiry Officer further observed that the evidence of the petitioner as D.W.1 appears to be unreliable and untrustworthy and further observed that had P.W.1 shouted at the petitioner, he would have taken the matter to the District Judge informing about the incident. On the other hand, P.W.1 reported the incident to the District Judge by forwarding the leave application. Therefore, the defence of the petitioner that the Presiding Officer shouted at him has no legs to stand. The Enquiry Officer after taking into consideration the totality of the circumstances found the petitioner guilty of charge No.2 and submitted the report to the District Judge. 18. The District Judge after perusal of the report of the enquiry officer accepted the report in respect of charge No.2, but differed with the view expressed by the enquiry officer in respect of charge No.1 and found the appellant guilty of charge No.1 on the basis of the material available on record. 19. The appellant contended that when the disciplinary authority finds that the reasons assigned by the enquiry officer is neither cogent nor based on evidence it can record its own reasons and hold that the delinquent is guilty of charge levelled against him and a duty is cast upon the disciplinary authority to record its reasons to facilitate the appellant to show cause or to appeal against the conclusions. Since the disciplinary authority did not assign any reasons, the appellant was denied reasonable opportunity with regard to finding on charge No.1. The learned counsel for the appellant in support of the above contention relied on a judgment of the Supreme Court in Yoginath D. bagde v. State of Maharashtra wherein the Supreme Court while dealing with Article 309 of the Constitution of India observed in paragraphs 28 and 31 as follows: “28. In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be