THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH %14.07.2010 W.P.NO.12084 OF 2008 A.C.RAVINDRAN PETITIONER And THE HIGH COURT OF ANDHRA PRADESH, REPRESENTED BY ITS REGISTRAR (MANAGEMENT) AND ANOTHER. RESPONDENTS Counsel for the appellant: Mr. Pratap Narayan Sanghi Counsels for the respondents : Smt. M.Bhaskara Lakshmi, Standing Counsel for A.P. High Court. < Gist Ø Head Note. Ø ?Cases Referred: 1. AIR 1979 SC 1022 2. AIR 1963 SC 1719 3. (2009)12 SCC 78 4. AIR 1963 SC 1914 5. (2008)8 SCC 236 6. (1992)2 SCC 10 7. (2009)2 SCC 570 8. (2007)4 SCC 669 9. AIR 1969 SC 983 10. (2009)12 SCC 78 11. (2003)4 SCC 331 THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.12084 OF 2008 O R D E R (Per the Hon’ble Sri Justice Ghulam Mohammed) Heard both the counsel. 2. This writ petition is filed for a writ of certiorari to call for the records relating to and connected with proceedings in Dis.No.3258/2007 dated 31.5.2007 and Dis.No.3696/2007 dated 21.6.2007 of the 2nd respondent – The Principal District and Sessions Judge, Rangareddy District, L.B.Nagar, Hyderabad, as confirmed by the 1st respondent – The High Court of Andhra Pradesh, represented by its Registrar (Management), in proceedings D(D)No.28 & 29/2007.C.4(Con.) dated 2.4.2008 imposing the punishment of dismissal from service and to recover Rs.24,55,600/-, and to set aside the same and grant the consequential benefits. 3. The petitioner was working as Senior Assistant in the court of Junior Civil Judge, Parigi, Rangareddy District. While so, he was served with charge memo vide Lr.Dis.No.8408/2005 dated 17.12.2005 issued by the 2nd respondent, containing five charges. The said charges relate to returning of the pass books to an imposter without proper identification. While he was working as Senior Assistant in the Court of Principal Senior Civil Judge, Rangareddy during the period from 9.2.2005 to 13.10.2005, he returned the pass book of Rangareddy Co-operative Urban Bank Limited, Kothapet, Hyderabad standing in the name of Mr.Ranjeet Malhota to an imposter Ch.Prabhaker Reddy, which resulted in withdrawal of huge amount. The said charges are as under: 1. That Sri A.C.Ravindran, worked as Senior Assistant in the Court of the Prl. Senior Civil Judge, Ranga Reddy District from 09.02.2005 to 13.10.2005. The individual having been entrusted with Accounts Branch in the Court of Prl. Senior Civil Judge, Rangareddy District by an office order dated 4.3.2005 failed to maintain P.D. Cash Book in that Court from 1.4.2005 to 29.9.2005. The above act of the individual constitutes gross negligence towards duties, dereliction of duties and lack of devotion to duty and that he thereby contravened Rule 3 of A.P.Civil Services (Conduct) Rules 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 2. That Sri A.C.Ravindran, Senior Assistant during his tenure of work in the Court of the Prl. Senior Civil Judge, Ranga Reddy District, having knowledge of filing of petitions in E.A.No.204/95, claim petition filed by Sri P.Chandra Reddy and E.A.No.205/05, stop payment petition, and having handled E.A.No.204/05 suppressed the facts and kept quite when the cheque petition in E.A.No.202/05 was being ordered without presence of the party, Advocate and verification and identification of the party, which is contrary to the Hon’ble High Court Circular instructions issued from time to time and allowed the cheque to be dispatched from the court on 8.9.05. Sri A.C.Ravindran obviously did the above acts in collusion with Sri Y.Lakna Reddy, Superintendent (under suspension), Sri P.Ganapathi, Junior Assistant, E.P.Clerk, Sri G.Pratap Reddy, Advocate and Sri Ch.Prabhakar Reddy, imposter, for extraneous reasons and facilitated withdrawal of money and its misappropriation. Sri A.C.Ravindran, by the above acts failed to maintain absolute integrity, discipline, diligence, honesty, sense of propriety and behaved in a manner which is unbecoming of a Government servant and derogatory to the prestige of the Government, which acts tantamount to misconduct. Sri A.C.Ravindran, thereby contravened Rule 3 of A.P.Civil Service (Conduct) Rules, 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 3. That Sri A.C.Ravindran, Senior Assistant, falsely claimed that on 6.9.2005 he handed over Pass Book to the imposter Sri Ch.Prabhakar Reddy, after taking his signature and the signature of his counsel Sri G.Pratap Reddy, in the Section, though in fact both of them have not attended the Court at all and Sri A.C.Ravindran, has taken the signature else where than in the Court. Sri A.C.Ravindran, by the above mischievous act committed breach of trust imposed on him by joining hands with the imposter and his counsel and others and that he is not honest, diligent, faithful and failed to maintain absolute integrity and contravened Rule 3 of A.P.Civil Services (Conduct) Rules, 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of APCS (CCA) Rules, 1991. 4. That Sri A.C.Ravindran, has also prepared covering letter to send the cheque in E.P.No.144/05 for Rs.32,75,450/- to the Rangareddy Co-operative Urban Bank Pvt. Ltd., without there being any specific order of the presiding officer which facilitated the cheque to be dispatched to the Bank on 8.9.2005 in face of E.A.No.204/05 and E.A.No.205/05, a claim petition and stop payment petition respectively. Sri A.C.Ravindran, did the above act in connivance with Sri Y.Lakna Reddy, Superintendent, Sri P.Ganapathi, Junior Assistant and others obviously for extraneous reasons and in utter disregard to the conduct Rules envisaged in Rule 3 of A. P. Civil Services (Conduct) Rules 1964 and mis-conducted himself and he thereby rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 5. That under Article 5 of A.P.Financial Code, Sri A.C.Ravindran, being Senior Assistant and entrusted with the Accounts Branch, of the Court of the Prl. Senior Civil Judge, Ranga Reddy District, during his tenure of work was duty bound to see that proper accounts are maintained for all Financial transactions and render accurately and promptly all such accounts and he ought to have checked the correct maintenance of the accounts of the Court and failure to discharge the above functions, will hold him personally responsible for any loss that may be found to be due to any negligence of duties; Under Article 273 of the Financial Code, the Government will hold a Government Servant personally responsible for any loss sustained by the Government through fraud or negligence on his part and also for any loss through fraud or negligence on the part of any other Government Servant and under Article 300 of A.P.Financial Code, if the loss is held due to the fraud on the pat of the Government Servant, the same shall be recovered from the Government Servant concerned. Sri A.C.Ravindran, along with Sri P.Ganapathy, prima-faice, conspired with Sri Y.Lakna Reddy, who master-minded the conspiracy to embezzle the public money and in league with Sri G.Prathap Reddy, Advocate, and his brother-in-law Sri Ch.Prabhakar Reddy, imposter, caused pecuniary loss to the Government to a tune of Rs.24,55,600/- (out of Rs.32,75,450/-, Rs.4,69,850/- was frozen and Rs.3,50,000/- was recovered from Sri Ch.Prabhakar Reddy, by the police) and Sri A.C.Ravindran, is therefore accountable for the loss caused and the amount is liable to be recovered from him and he is not loyal, diligent, honest, lacking in devotion to duty, and failed to maintain absolute integrity and that he thereby contravened Rule 3 of A.P.Civil Service (Conduct) Rules, 1964 and rendered himself liable for disciplinary action under Rule 20 A.P.Civil Services (CCA) Rules, 1991. 4. On denial of the above charges by the petitioner, the 2nd respondent appointed the V Additional District and Sessions Judge, Rangareddy as the enquiry officer. The enquiry officer conducted the enquiry and during the course of enquiry, on behalf of the Department, P.Ws.1 to 10, were examined and Exs.P-1 to P-72, were marked. On behalf of the defense, D.Ws.1 to 5 were examined and no documents were marked on behalf of the petitioner. 5. Appreciating the entire evidence, the enquiry officer submitted report in Lr.Dis.No.93/2007 dated 9.3.2007 holding that charges 1 and 3 as proved and the other charges as not proved against the petitioner. The petitioner was served with the report of the Enquiry Officer and he submitted his explanation and not being satisfied with the same, the 2nd respondent – disciplinary authority, by proceedings in Dis.No.3258/2007, imposed the punishment of dismissal from service and by separate proceeding dated 21.6.2007, ordered recovery of an amount of Rs.24,55,600/-, with interest, along with the other delinquent Lakna Reddy. Aggrieved by the order of dismissal, the petitioner preferred administrative appeal to the High Court and the 1st respondent – appellate authority, by proceedings in D(D) A.No.2829/2007 C.4(Con) dated 2.4.2008, confirmed the order of dismissal passed by the disciplinary authority and thereby rejected the appeal. Thus, aggrieved by the orders passed by the respondents in imposing the punishment of dismissal from service and ordering recovery of the amount, the petitioner filed the present writ petition. 6. Before noting to the case of the petitioner, it is necessary to note the brief background, leading to the leveling of the charges. 7. M/s Olmpia Gas Pvt. Ltd., is having its registered officer at New Delhi. It purchased an extent of Ac.1-37 guntas of land at Bachupally of Rangareddy District in the year 1992, for setting up of L.P.G. bottling plant. Mr.Dinesh Ghopra, one of the directors of the company, was entrusted with the affairs relating to the State of A.P. and subsequently the said Mr. Dinesh Ghopra, was replaced by Mr.Ranjit Malhotra. However, the setting up of the bottling plant, could not be materialized and subsequently, in the month of June, 2005, on seeing a board erected in the site to the effect that the land has been taken over by somebody in the court auction, Ranjit Malhotra entrusted the matter to Mr.Kumaresan, Advocate and his associates for investigation of facts. During the course of enquiry, it came to light that M/s Sri Krishna Agencies, represented by its proprietrix Smt. T.Subhashani, resident of Suryapat, was nominated as one of the dealers of M/s Olmpia Gas Pvt. Ltd., at Surypatet, by collecting security deposit. As M/s Olympa Gas Pvt. Ltd., stopped the activity, its dealer, M/s Sri Krishna Agencies, Suryapet, filed suits in O.S.Nos.65/1997 and 24/1998 on the file of Senior Civil Judge’s Court, Suryapet, for recovery of security deposit of Rs.4,00,000/- and Rs.2,29,773/- respectively. As M/s Olmpia Gas Pvt Ltd., represented through Ranjit Malhotra, failed to contest the matter, it was set ex parte and ex pate decree was passed in two suits on 22.1.1999 and 2.7.1998 respectively, and the said decrees were transferred to the Principal Senior Civil Judge’s Court, Rangareddy District, for execution, where the immovable property of the company was situate and in the said court, the execution petitions were numbered as E.P.Nos.144 and 145 of 1999. In the said E.P.s, the land was attached and put to auction on 23.1.2004 and it was knocked down in favour of Sri Prabhakar Reddy, who is the highest bidder, for an amount of Rs.41,20,000/-. Thereupon, M/s Kishna Agencies represented by Smt. T.Subhasini filed petitions for withdrawal of the decretal amount of Rs.4,22,983/- and Rs.2,80,350/-and accordingly the said amounts were paid and the balance amount of Rs.30,90,000/- was kept in the fixed deposit in the shape of Vikas Cash Certificates in Syndicate Bank, Manchal Branch on 6.4.2004. 8. Subsequently, a petition in E.A.No.181/2005 was filed in the name of Ranjit Malhotra, the judgment-debtor in the above suits, for withdrawal of the balance amount lying in F.Ds., through G.Pratap Reddy, Advocate. The said E.A. was processed, as alleged in the charge sheet, by the two delinquents, Y.Lakna Reddy and A.C.Ravindran. In the meanwhile, the said Pratap Reddy, Advocate, along with the imposter of Sri Ranjit Malhotra, approached the Rangareddy Co-operative Urban Bank Limited, Kothapet, Hyderabad and got opened an account in the name of the imposter, being introduced by Sri Pratap Reddy, Advocate. Thereafter, an account payee cheque bearing no.473237 dated 6.9.2005, for a sum of Rs.32,75,450/- was received from the Court through a messenger and it was credited in the current account no.11579, opened by the imposter of Sri Ranjit Malhotra. The said cheque amount was withdrawn on installment basis i.e., Rs.12,00,000/- on 8.9.2005, Rs.7,00,000/- on 10.9.2005 and Rs.9,00,000/- on 12.9.2005. 9. Sri J.Kumaresan, Advocate, to whom the matter was entrusted for enquiry by Sri Ranjit Malhotra, one of the Directors of M/s Olympia Gas Pvt. Ltd., after coming to know the fraud played in the matter, gave a complaint to the Police, Saroornagar, on 13.9.2005, which was registered as Crime No.787/2005. The police approached the Rangareddy Co-operative Urban Bank, Kothapet and got freezed the amount lying in the said account. Subsequently, the Principal Senior Civil Judge, Rangareddy District was also informed by the police about the fraud played in the matter. Thereupon, the Principal Senior Civil Judge, Rangareddy District, by his letters dated 19.9.2005 and 20.9.2005, informed the District Judge about the illegal drawal of amount by impersonating the judgment-debtor viz., Sri Ranjit Malhotra in E.P.No.144/1999. On the information furnished by the II Metropolitan Magistrate, Cyberabad, by his letter dated 20.9.2005, to the effect that Y.Lakna Reddy, Superintendent, Principal Senior Civil Judge’s Court was remanded to Judicial custody, on his arrest and production by the police in Crime no.787/2005 of Saroornagar Police Station, registered under Sections 419, 409, 420, 468 and 471 I.P.C.; the Full Additional Charge District Judge, Rangareddy District, issued proceedings dated 21.9.2005, placing the said individual under suspension in public interest. 10. Subsequently, the Principal Senior Civil Judge, Rangareddy District submitted a detailed report on 1.10.2005 to the District Judge, bringing to his notice how the fraud took place and fixed the responsibility on Y.Lakna Reddy, Superintendent, A.C.Ravindran, Senior Assistant and P.Ganapathi, Junior Assistant, for their collusion with the Advocate G.Pratap Reddy and Ch.Prabhakar Reddy, the imposter of Sri Ranjit Malhotra, in drawing the amount in a fraudulent manner. 11. Thereupon, the District Judge after issuing individual memos and considering their explanations, framed charges and as noted above, the enquiry officer submitted report holding that charges 1 and 3 as proved against the petitioner and the remaining charges were held to be not proved. After being unsuccessful before the disciplinary authority and before the appellate authority, the petitioner filed the present writ petition. 12. The case of the petitioner as stated in the affidavit filed in support of the writ petition and also as stated by his counsel is that the first charge relates to failure to maintain P.D. cash book of the court of Senior Civil Judge from 1.4.2005 to 29.9.2005 and the other charge that is proved is that the petitioner falsely claimed that on 6.9.2005 he has handed over pass book to the imposter after taking his signature and the signature of his counsel, though in fact both of them have not attended the court and that the signatures were obtained else where. With regard to first charge held proved against the petitioner, the case of the petitioner is that he is new to the accounts branch and, therefore, he was not able to follow the procedure of accounts branch in maintaining the cash book and that it was neither willful nor deliberate, but only due to lack of knowledge and that at the most, the act alleged, may amount to procedural lapse. 13. With regard to charge no.3, which relates to the petitioner not obtaining the signatures before handing over the pass book in the court, but obtained signatures elsewhere, is concerned, the case of the petitioner is that the imposter came before him in the section and signed as Ranjeet Malhotra. On taking his signature without doubting his identity, he returned the pass book to him, as the signature put in by the imposter, was attested by the Advocate on record. Therefore, the contention of the petitioner is that he has issued the pass book in the section/court. But the enquiry officer recorded finding that “It shows that D-2 joined hands with the imposter and his Advocate, having knowledge that imposter is not Ranjeet Malhotra.” The contention of the petitioner is that the enquiry officer did not record any specific finding on this charge and recorded the above finding, which is not the charge at all. The grievance of the petitioner is that he has no prior knowledge of the imposter and he had no occasion to interact with the imposter - Prabhakar Reddy, to know that he is not Rajeet Malhotra and that his responsibility was confined to returning the bank pass book to the account holder/judgment debtor, by taking his signature of acknowledgement and that the cheque is sent to the Bank for realization through the Court employee after the order being passed by the Presiding Officer. The pass book contained the name of Ranjeet Malhotra and the person came to him signed as Ranjit Malhotra and that he was identified as Ranjeet Malhotra by the Advocate on record. Thus, there was no occasion to doubt the identity of the person for refunding of the pass book and that the signature of imposter is tallying with the specimen signature in the pass book. The further case of the petitioner is that he never admitted that imposter has not attend the office and that his statement before the Full Additional Charge District Judge, is deliberately misread. The further contention of the petitioner is that the enquiry officer did not record any finding on this aspect. Therefore, the charge has to be held as not proved. 14. The disciplinary authority at the stage of passing final order, records a different finding on charge no.3, which is not recorded by the enquiry officer. The grievance of the petitioner is that the disciplinary authority relied on the statement of Mr.P.Suresh Babu, Attender, to come to the conclusion that the imposter was not physically present in the office. The contention of the petitioner is that the said Suresh Babu, was not cited as witness during the course of enquiry and that the petitioner was not given the opportunity of testing the correctness of the statement made by him during the course of enquiry. As the said witness was not examined during the course of enquiry, the disciplinary authority ought not have relied on his statement. The case of the petitioner is that merely because the said Suresh Babu, who is working as Attender, stated that he did not see the imposter in the court signing and receiving the pass book, his statement cannot be believed and on the contrary, the record of the court on cheque petitions, show that Ranjit Malhotra (imposter) attended the Court. Furthermore, the said Suresh Babu, is attached to the office of the Superintendent and is not always available in the office and, therefore, his statement cannot be believed. 15. The disciplinary authority varied with the finding of the enquiry officer on the crucial aspect. Further, in the notice dated 17.3.2007, issued by the disciplinary authority, it is not mentioned that it is not agreeing with the finding of the enquiry officer. Therefore, the contention of the petitioner is that, recording findings different from that of the enquiry officer, at the stage of passing final order, is illegal and is in violation of the principles of natural justice. 16. The other grievance of the petitioner is that the decision to recovery the alleged loss caused to public funds, also amounts to taking decision contrary to the findings of the enquiry officer in the reported dated 31.5.2007. Therefore, the case of the petitioner is that it is a clear case of non-application of mind. 17. In the affidavit, the petitioner further averred that mere issuance of the pass book is not the root cause for the fraud of illegal withdrawal of money. The genesis to the problem arose from the time of opening of the bank account with a false declaration, presenting the cheque petition, passing of the orders by the Court and withdrawal of the amount with false declaration. He stated that whether the pass book is returned or not, the cheque has to be dispatched to the bank for crediting to the account of judgment-debtor in the cheque petition. Once amount is credited, there are ways and means to withdraw the amount and it is not always necessary to carry the pass book. The case of the petitioner is that he is not responsible for the loss caused and thus the amount cannot be ordered to be recovered from him. 18. It is further stated that the there is clear discrimination in dealing with disciplinary action against judicial officer and the petitioner. The evidence on record would show that the Presiding Officer passed orders in the cheque petition, as if the judgment-debtor attended before him and that he identified him. If the statement of Mr. Suresh Babu is treated as true version of the incident, then it would equally establish the guilt of the Presiding Officer, since he could not have passed the cheque petition without the presence of the judgment-debtor. The contention of the petitioner is that the Presiding Officer is visited with minor penalty, whereas he was imposed the punishment of dismissal from service With these averments inter alia, the impugned proceedings imposing the punishment of dismissal from service and ordering recovery of the money, is sought to be set aside. 19. The 2nd respondent – Principal District and Sessions Judge, filed counter affidavit. In the counter affidavit, while denying the averments of the petitioner in the writ affidavit, it is stated that the enquiry officer has acted in accordance with the provisions as contemplated under A.P.Civil Services (Classification, Control and Appeal), Rules 1991 and imposed penalty of dismissal of the writ petitioner from service. It is stated that the petitioner in his sworn statement recorded on 1.10.2005, stated that he had not made any entries in the cash book, which was marked as Ex.P-5, which corroborated with the report submitted by the enquiry officer and hence the charge in this regard, is held to be proved. The then District Judge at the relevant time, recorded the statement of the writ petitioner on 1.10.2005 and 3.10.2005, which is marked as Ex.P-50, in which he clearly admitted the facts as recorded by the learned enquiry officer at paragraph XV of his report and the statement of Smt. Rajeshwarai is Ex.P-29 and hence the contention of the petitioner that the Ex.P-50 is not his statement, is incorrect. As the charges 1 and 3 leveled against the petitioner are proved, he was imposed with the punishment of dismissal from service. With regard to non- examination of P.Suresh Babu, it is stated that though the petitioner had the opportunity to disprove the same, he did not take any steps. 20. With regard to recovery of the amount, it is stated that the disciplinary authority based on the record and in concurrence with the enquiry report, held that the charges leveled against the petitioner along with one Y.Lakna Reddy, are proved and hence ordered recovery of the embezzled amount and the fixed the liability on the petitioner along with Y.Lakna Reddy jointly and severally. With these averments and supporting the action taken in the impugned proceedings, the writ petition is sought to be dismissed. 21. The learned counsel appearing for the petitioner submitted that the 1st charge relates to non-maintaining of the proper accounts by the petitioner. He submitted that as the petitioner was not having knowledge and experience in dealing with accounts and as he never worked in the accounts department, he could not maintain the proper accounts and subsequently the same were updated and this is also born out of record. He contended that this has to be taken as a procedural lapse and no motive can be attributed for this procedural lapse. He contended that every act does not constitute misconduct, and in the present case due to lack of knowledge in accounts wing, the lapse has occurred and this cannot be construed as misconduct. In support of this contention, he relied on the judgments of the Apex