THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.23636 OF 2003 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) Heard Sri K.S. Murthy, learned counsel for the petitioner and Smt. M. Bhaskar Lakshmi, learned Standing Counsel for Andhra Pradesh High Court. 2. Aggrieved by the order in Roc.No.190/2002,CII/1 dated 28.8.2003 passed by the 1st respondent – High Court of A.P. represented by its Registrar (Administration), in rejecting the appeal filed by petitioner and thereby confirming the order of removal passed by the disciplinary authority – District Judge, in R.C.A.No.136/2001 dated 28.5.2002, the present writ petition is filed. 3. The petitioner was an Examiner of Copies in the unit of District Judge, Nellore. During the year 2001, the petitioner worked as Examiner in Senior Civil Judge’s Court Nellore. The Senior Civil Judge, Nellore was appointed as an Administrator of A.S. Pet Dargah (hereinafter referred to as the ‘Dargah’), at Nellore as per the scheme framed by the High Court of Madras in A.S.No.200 of 1916. A.S.Pet Dargah is a famous Dargah and the seat of Khaja Rahamutulla Nayaab Rasool, a great saint and many devotees from all over India irrespective of their caste and religion, visit the said Dargah and offer their prayers. The Senior Civil Judge, as Administrator, was periodically supervising the counting of hundi collections and remittances into the bank account of the Dargah. 4. On 9.6.2001 the Senior Civil Judge went to the Dargah for supervising the counting of hundi collections along with the petitioner and one T.Venkata Ramana, who was working as Attender in the court of Senior Civil Judge. The counting of hundi collections commenced at 9-30 a.m. under the personal supervision of the Senior Civil Judge. The petitioner also participated in counting of monies along with others. While so, at about 12 noon, the Senior Civil Judge, went to attend the nature calls and returned back to the place of counting. At that time, Sri Hafiz Bashs (P.W.6) complained against Venkata Ramana stating that he concealed the amount. Thereupon the Senior Civil Judge directed to check Venkata Ramana. Venkataramana stood up and took out fistful of currency notes from his pockets. Hafiz Basha also complained against the petitioner stating that he concealed some currency notes. On such complaint, the Senior Civil Judge, directed checking of the petitioner and that the petitioner took out currency notes worth Rs.1,100/-. The Senior Civil Judge, seized the amount and recorded the statements of (1) Sri Shagulam Nakshabund Hafeez Basha, (2) Sri Moghul Abdulla Basha, (3) Sri Syed Showkat Ali, (4) Sri Md. Muneeruddin (Trustee) and (5) Sri Sh.Md. Rafi, Senior Assistant, Senior Civil Judge’s Court, Nellore. Subsequently, the Senior Civil Judge reported the matter to the District Judge. By proceedings in RCA No.136/2001 dated 11.6.2001, the petitioner was kept under suspension and Sri K.V.Ramana Naidu, Senior Civil Judge, Kavali, was appointed as an Enquiry Officer by proceedings dated 17.10.2001 and a regular departmental enquiry was ordered after framing two charges. The charge against the present petitioner is as under: “That you Sri Sk. Mahaboob Basha, Examiner, District Court, Nellore on deputation to work in Senior Civil Judge’s Court, Nellore (under suspension), while working in the Court of Senior civil Judge’s Court, Nellore on 9.6.2001 has accompanied the Senior Civil Judge, Nellore – cum – Administrator of A.S.Peta Dargah, to A.S.Peta Dargah for counting the Hundi collections, that along with you Sri T.Venkata Ramana, Attender and Sri Sh.Md. Rafi, Senior Asst., of Senior Civil Judge’s Court, Nellore also accompanied and participated in the counting of Hundi collections from 9-30 a.m. onwards on that day, and while that process was going on at about 12-00 noon, the Senior Civil Judge has left that place for attending calls for nature and when returned back after sometime, Sri Hafeez (Quorankhan of Dargah) who was sitting there complained against you that you have concealed some currency notes, that the Senior Civil Judge directed you to be checked, that you took out a small bundle of Rs.100/- currency notes from your pant loom’s left pocket saying that it was your money which you have brought, that the currency notes amounting to Rs.1,100/- were seized from you, which act of yours if proved or established would amount to misconduct, conduct unbecoming of a Government employee and lack of absolute integrity within the meaning of Rule 3(1) of A.P. Civil Services (Conduct) Rules, 1964.” 5. The Enquiry Officer conducted enquiry and during the course of enquiry, on behalf of the disciplinary authority, P.Ws. 1 to 6 were examined and Exs.P-1 to P-7 were marked and on behalf of the charged officer D.Ws.1 to 4 were examined and Exs.D-1 to D-4 were got marked. 6. Appreciating the entire evidence, the Enquiry Officer submitted report dated 4.4.2002 holding both the petitioner as well as the other charged employee, as guilty for the charge leveled against them. Based on the said report and the explanation of the petitioner, the disciplinary authority – District Judge, accepting the report of the Enquiry Officer, imposed the penalty of removal from service by order dated 11.6.2001. 7. Aggrieved by the same, the petitioner filed administrative appeal to the appellate authority i.e. the Registrar (Administration), who in turn concurring with the order of removal passed by the disciplinary authority, dismissed the appeal. Hence, the preset writ petition. 8. The case of the petitioner as stated in the affidavit filed in support of the writ petition is that he was initially appointed as Junior Assistant in June, 1986 in Special Judges Court at SPE and ACB cases, Nellore and worked as such up to 28.2.1989, on which date, the said court was abolished and he was again reappointed in May, 1989 as Examiner in the Unit of the District Judge Nellore and worked as such, till he was removed from service. On 9.6.2001, he along with one T.Venkataramana, Attender, accompanied Senior Civil Judge, Nellore, who was appointed as Administrator, for counting of the hundi collections of A.S.Peta Dargah, Nellore. During the course of counting on 9.6.2001, the Senior Civil Judge left the room (A-5) for nature call and directed one Mr. Rafi, Senior Assistant, to supervise the counting in his absence and he returned after some time. At that time, one Hafeez Basha, referring to T.Venkataramana complained that he concealed the amount. On that, he was ordered to be checked and an amount of Rs.9,500/- was recovered from his pockets. The grievance of the petitioner is that though Hafeez Basha did not complain that the petitioner also indulged in similar act and only looking at him stated that some irregularity is going on, the Senior Civil Judge only on suspicion, directed for his check and that even before check, he removed an amount of Rs.1,100/- from his pocket, which was his own money, meant for payment of school fees of his children. The case of the petitioner is that one day prior to the date of incident, he went to Everest Central School, at about 8-00 p.m., were his two daughters are studying 9th and 4th classes respectively, for payment of school fees, Rs.600/- for 9th class and Rs.400/- for 4th class, and as the bill book was kept in the almirah and it was locked and the key was with the principle, he could not pay the amount and the amount was with him and in the morning he attended the duty for counting the hundi collections and therefore, the money that is recovered from him, belongs to him and not stolen from the hundi collections and in the spot explanation, he stated that the money taken out from his pocket was his own money, meant for payment school fees to his children. This version is supported by the evidence of D.Ws.3 and 4. But the enquiry officer failed to consider the evidence available on record in proper perspective. It is stated that the petitioner cannot be compared with the other charged employee T.Venkataramana, Attender, since the amount that is found with him, was Rs.9,500/- and whereas, only an amount of Rs.1,100/- was recovered from him, which is his own money. Further, the money that is recovered from T.Venkatarama, is not in order and that too recovered from different pockets and whereas the amount that is recovered from him, is in orderly form and is taken out from only one pocket. It is further stated that there is no evidence on record to show that any one has seen the petitioner concealing the amount and that even P.W.6, who initially complained with regard to the alleged injustice, categorically stated that he never complained against the petitioner. Further the whole basis for the initiation of the disciplinary proceedings is the statement of P.W.6 which is marked as Ex.P- 2, wherein he stated that he had complained against the petitioner that he put a bundle of one hundred rupees notes after covering it with a kerchief. Such a statement, which was written in Telugu, was baseless and the signature of P.W.6 though obtained, he does not know how to read and write Telugu and hence no credibility can be given. Further the P.Ws.1 to 3 have categorically stated that they have not seen any kerchief taken out by the petitioner along with the amount. In view of these circumstances, it cannot be said that there is any legal evidence on record. 9. Therefore, when there is no evidence much less legal, to show that petitioner has taken the money from the hundi collections and there is also no specific complaint against him, based on the mere suspicion, initiation of disciplinary enquiry, by non-consideration of the above factors, is vitiated by non-application of mind. In support of these contentions, the learned counsel for the petitioner relied on the judgments of the Apex Court reported in ROOP SINGH NEGI v. PUNJAB NATIONAL BANK [1] and PRAVEEN BHATIA v. UNION OF INDIA[2]. 10. It is contended that when the matter pertains to counting of huge amounts, the concerned authorities ought to have asked those persons who are counting, to declare their personal money. But such a procedure has not been followed and in these circumstances when there is no specific complaint against the petitioner that he concealed the amount and there is also no positive version from any one of the persons who were present while counting the monies, that they have seen the petitioner concealing the amount and when the said amount with the petitioner is his own and is meant for payment of school fee for his children and moreover the amount that is recovered from the petitioner is a meager amount, which is taken out from his pocket in an orderly form and further the witnesses examined on behalf of the disciplinary authority i.e., P.Ws.2 to 6 also supported his case, it cannot be said that he had committed any theft and these circumstances would indicate that the petitioner was implicated only on mere suspicion without any proof and hence in these circumstances the finding of the enquiry officer holding the petitioner guilty, is perverse and is based on no evidence. 11. It is further contended that the enquiry officer did not submit the report with separate findings for separate charges as envisaged under Rule 20(23)(i)(d) of CCCA Rules and has discussed in general and submitted the report and because of this position, the petitioner is put to disadvantage. 12. The learned counsel appearing for the petitioner contended that though this court cannot sit as an appellate authority over the findings of the disciplinary authority, if the finding of ‘guilt’ recorded in the domestic enquiry, is based on no evidence, such a finding, which is perverse, can be interfered with by this court in exercise of judicial review under Article 226 of the Constitution of India. 13. He further contended that the Senior Civil Judge, who was examined as P.W.1 before enquiry officer has categorically deposed that he has confidence that his staff members and the trustee would be looking into the assortment of collections under the belief that they would not allow any pilferage to go on. This statement of P.W.1 shows that he is having confidence on his staff. Further, the petitioner is appointed in the year 1989 and is having long length of service, which is unblemished and, therefore, before imposing the punishment of removal, the disciplinary authority or the appellate authority ought to have considered his service record. Therefore, the action of the respondents in inflicting the major punishment of removal from service, is shockingly disproportionate to the misconduct proved against him. In support of this contention, the learned counsel relied on the judgments of the Apex Court reported in NOHARLAL VERMA v. DISTT. COOP. CENTRAL BANK LTD.[3] and COIMBATORE DISTRICT CENTRAL COOP. BANK v. EMPLOYEES ASSN[4]. 14. With these submissions, he sought to set aside the impugned order and reinstate the petitioner into service with all consequential benefits. 15. The respondents filed counter affidavit and while narrating the facts, stated that P.W.1 is the senior civil Judge, P.W.2 is a Pashee Imaam of the Darga, P.W.3 is Senior Assistant of the Senior Civil Judge’s Court, Nellore, P.W.4 is a Mouzan of the Dargah and P.W.5 is the Trustee of the Dargah. They all deposed in one voice that the petitioner produced the money from his person at the place of counting, when he was about to be searched on an oral complaint given by a person namely Hafeez to the Senior Civil Judge at the place of counting of Hundi collection, that the petitioner concealed the amount. The letter written by the Senior Civil Judge to the respondent indicates that the petitioner was in possession of six notes of Rs.100/- denomination and ten currency notes of Rs.50/- denomination. Though the petitioner pleaded at the time of seizure of the money that it is his personal money, he did not indicate as to how he got the money and the purpose for which he was carrying on the day. After a lapse of so much time from the date of seizure, he took the above defence at the time of giving explanation to the charge framed against him. Hence, the Enquiry Officer after considering the statement of the witnesses given at the time of seizure, rightly came to the conclusion that there was sufficient material in proof of ‘guilt’ of the petitioner. Considering all these circumstances, the disciplinary authority imposed the penalty of removal from service and the appellate authority rightly confirmed the same. It is further stated that the criminal prosecution was also lodged, but the departmental action is independent of criminal prosecution and hence considering the above facts and circumstances, the petitioner was removed from service and the same may not be interfered with. 16. The learned Standing Counsel reiterating the above averments further submitted that this court cannot interfere with the findings of fact recorded in the enquiry and sit as an appellate authority and this court also cannot examine the sufficiency of the evidence adduced before the enquiry officer and unlike the criminal proceedings, only the preponderance of possibilities have to be examined and that the charges framed against the present petitioner and the other charged employee are similar and the evidence is also common and both were removed by one and the saameproceedings and the other charged employee preferred W.P.No.3017 of 2005 and a Division Bench of this court elaborately considering the entire material on record, dismissed the writ petition by judgment dated 24.02.2006 and hence the present writ petition is also liable to be dismissed. The learned counsel also produced the copy of the judgment of the Division Bench in W.P.No.3017/2005. 17. Replying the above arguments, the leaned counsel for the petitioner contended that in the connected writ petition filed by the other delinquent in W.P.No.3017/2005, no plea of ‘no evidence’ was taken and the facts and circumstances are different and against the said delinquent employee, there is positive evidence proving his guilt, but whereas there is no specific or iota of evidence pointing the guilt of the petitioner and in the present case, there is no specific complaint and only on suspicion, the petitioner was searched and he came out with the explanation on the spot that it was his money meant for payment of school fees and no one has seen the petitioner concealing the amount and on the other hand, the positive evidence of P.Ws.2 to 6 is that they have not seen the petitioner concealing the amount and he produced the money, which is a meager, in an orderly form and that if there was any concealment, it would have been seen by them and there is also no specific complaint by P.W.6 against the petitioner. In these circumstances, the petitioner cannot be compared with the other delinquent employee and the judgment in his case, will not operate as res judiata. He further submitted that the petitioner has an unblemished service record of about 17 years and the same has not been considered before inflicting the punishment of removal from service. Therefore, in the alternative, he sought to at least modify the punishment imposed by the respondents. 18. In view of the above rival contentions, the issues that arises for our consideration are: (1) Whether there is any legal evidence to support the conclusion arrived at by the enquiry officer that the petitioner is guilty of the charge leveled against him? (2) Whether the penalty of removal from service is disproportionate to the misconduct found proved against the petitioner? 19. 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[5] 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. 20. In another judgment reported in UNION OF INDIA v. H.C.GOEL[6] 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.” 21. The Apex Court in KULDEEP SINGH v. THE COMMISSIONER OF POLICE & ORS.[7] 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