IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY NINTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 29096 of 2008 Between: S.S Hari Prasad S/o late Seetharamaiah (under Suspension) D.No.50- 109-3 TPT Colony Seethammadhara Visakhapatnam ..... PETITIONER AND 1 The District and Session Judge Cum-Disciplinary Authority Visakhapatnam 2 The Enquiring Authority Cum Special Judge for CBI Cases Visakhapatnam 3 The III Additional Chief Metropolitan Magistrate Gajuwaka Visakhapatnam .....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 writ or direction preferably writ of Mandamus declaring the charge Memo No.order DE No.3/2006 dt 27-1-2006 served on 23-7-2008 as illegal unjust and consequently set aside the same and pass such other order or orders Counsel for the Petitioner: MR.K.R.SRINIVAS Counsel for the Respondents: (SC FOR APHC) Sri D.V.SITHARAM MURTHY The Court made the following : THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HO’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO. 29096 OF 2008 ORDER: (Per Hon’ble Sri Justice Vilas V. Afzulpurkar) 1. By this writ petition, the petitioner, who is under suspension pending disciplinary proceedings, is challenging the charge memo bearing D.E.Nos. 3/2006, dated 27.1.2006 issued by the 1st respondent-District and Sessions Judge, Visakhapatnam as illegal, unjust, issued with a closed mind and violative of principles of natural justice and consequently seeks to set aside the same. 2. The learned counsel for the petitioner has primarily questioned the impugned charge memo on the ground that it contains conclusions having already been reached against the petitioner and it is contended that the wordings in the charge memo are such that the disciplinary authority has already pre- judged the charges and as such no useful purpose would be served by the inquiry. The learned counsel sought to rely upon a decision of this Court in W.P.Nos. 4360 of 1993 and 11749 of 1992, dated 25.8.1999 and contended that the charge memo in the present case is similar to the charge memo which was questioned in the aforesaid decision and this court had held that the charge memo itself suggests and discloses as if the disciplinary authority has reached to a conclusion even before making an inquiry and practically the petitioner in that case was held guilty of the charges of fraud, misappropriation, cheating, negligence of duties and corruption. In view of the aforesaid decision, the learned counsel would submit that the impugned charge memo in the present case is liable to be set aside. The learned counsel for the petitioner has also raised two other contentions, reference to which will be made after dealing with the above primary contention. 3. The learned Standing Counsel appearing for the respondents has submitted that the very presumption of the petitioner on the accusations and wording of the charge memo is erroneous and the charge memo does not suffer from any illegality or irregularity. 4. We have considered the aforesaid submissions in the light of the material placed on record. The impugned charge memo contains as many as five charges and for the purpose of convenience, charge No.1 is extracted hereunder, “STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SRI S.S. HARI PRASAD, SUPDT., (UNDER SUSPENSION), III ADDL. CHIEF METROPOLITAN MAGISTRATE’S COURT, VISAKHAPATNAM AT GAJUWAKA, AND SRI M. SAI KUMAR, PERSONAL ASISTANT, (UNDER SUSPENSION), III ADDL. JUNIOR CIVIL JUDGE’S COURT, VISAKHAPATNAM, ARE PROPOSED TO BE SUSTAINED. ARTICLES FO CHARGE NO.1: “That you Sri S.S. Hari Prasad, Superintendent, (Under suspension), III Addl. Chief Metropolitan Magistrate’s Court, Visakhapatnam at Gajuwaka, while functioning as Senior Assistant, IV Metropolitan Magistrate’s Court for APSRTC (Now I Metropolitan Magistrate’s Court for APSRTC), Visakhapatnam, during the period from 22.3.2004 to 31.7.05 and that you Sri M. Sai Kumar, while working as Personal Assistant, III Addl. Junior Civil Judge’s Court, Visakhapatnam, during the period from 17.9.97 to 18.9.2005, that both of you have colluded together with a dishonest intention, hatched up a plan to obtain huge amounts from the banks in the names of employees working in courts, without their knowledge, forged their signatures on the applications and other documents, forged the signatures of the Judicial Officers on undertakings and other documents required for sanction of loan, particulars of which are tabulated below and thereby both of you have exhibited gross misconduct by way of forgery, fabrication of documents and obtained loans from various banks aggregating to Rs.5,63,000/- approximately and appropriated the amounts for your personal, which act or acts if proved or established would amount to misconduct, mischief, forgery and fabrication of documents and contravention of Rule 3 of A.P.C.S. (conduct) Rules, 1964 and both of you are liable for punishment as per A.P.CCA Rules, 1991. (Vide separate statement-1 enclosed)” 5. It would be noticed from the above that the very statement of articles of charges is itself clear that the charges ‘are proposed to be sustained’ and towards end of each charge, after mentioning the accusations appearing against the petitioner, it is mentioned that ‘…….. which act or acts if proved or established would amount to misconduct, mischief, forgery and fabrication of documents and contravention of Rule 3 of A.P.C.S. (conduct) Rules, 1964 ……..’ Considering the charges ‘proposed to be sustained’ and framing of the charges specifically stating that ‘which act or acts if proved or established would amount to misconduct, mischief, forgery and fabrication of documents and contravention of Rule 3 of A.P.C.S. (conduct) Rules, 1964…….’ itself make it clear that there is neither any conclusion reached against the petitioner nor the charges can be said to have been prejudged by the disciplinary authority. Had the contention of the petitioner been correct, the words ‘proposed to be sustained’ or the words ‘which act or acts if proved or established would amount to misconduct’ etc. would not have formed part of the charge memo. 6. Further the decision of this court on which reliance has been placed by the learned counsel for the petitioner is equally misplaced. There were three charges which came for consideration in the aforesaid decision. Charge No.1 is as follows, “…..it is evident from such acts that he is in collusion with some of the customers and conspired with them and induced them for issuing cheques without sufficient balance to defraud the bank and secure wrongful gain. Thus he is found to be responsible for causing financial loss to the bank to a tune of Rs.6,00,137.00. In support of the said charge, a statement of allegations is made in which it is stated that…”He is found to have committed misappropriation of the funds of the bank and caused deficiency to the assets of the bank.” Charges 2 and 3 are also similar to the charge No.1 which is extracted above. The said charges are quite differently worded than the charge memo in the present case. The aforesaid decision on the facts of that case, therefore, has no application to the present case, inasmuch as in the charges in the present case, instead of vague allegations, there is a definite accusation which is proposed to be sustained during inquiry, as clearly mentioned in the charge memo itself. We are, therefore, of the view that the said primary contention of the learned counsel for the petitioner is liable to be rejected. 7. The learned counsel for the petitioner has raised another contention that on the self same facts and allegations, criminal proceedings have been set in motion and a complaint vide CC No. 612 of 2008 was registered with the self same charges and the witnesses and documents in the departmental enquiry and the said criminal case are same and much prejudice would be caused to the petitioner, if both the proceedings are allowed to continue simultaneously. It is, however, to be noticed that the charge memo is questioned in this writ petition mainly on the ground that it is issued with a closed mind and contains conclusions already reached against the petitioner. However, no relief is claimed with respect to second contention referred to above. Further the disciplinary proceedings are only at the stage of issuance of charge memo and the petitioner is yet to furnish his explanation. The said contention, therefore, does not arise for consideration. 8. The learned counsel for the petitioner has also contended that the petitioner is not getting subsistence allowance from September, 2008. So far as the said grievance is concerned, the validity of the charge memo as questioned in this writ petition does not depend upon the said contention and we are sure that the disciplinary authority would also consider the claim of the petitioner for payment of subsistence allowance in accordance with rules. 9. In the above circumstances, no ground is made out to entertain this writ petition and it is accordingly dismissed. No costs. _________________ KR V. ESWARAIAH, J Date: 29.1.2009 _________________________ VILAS V. AFZULPURKAR, J ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The District and Session Judge Cum-Disciplinary Authority Visakhapatnam 2 The Enquiring Authority Cum Special Judge for CBI Cases Visakhapatnam 3 The III Additional Chief Metropolitan Magistrate Gajuwaka Visakhapatnam 4. CC to Standing Counsel for High Court 5. 2 CD copies Form-NIC-OGS/WP{BMR}