*THE HONOURABLE SRI JUSTICE JUSTICE A.GOPAL REDDY *THE HONOURABLE SRI JUSTICE JUSTICE GOVINDARAJULU +WRIT PETITION No.22972 OF 2007 %31-12-2009 #T.P.Sowmithri. ….petitioner Vs. $ The High Court of Andhra Pradesh and another …. Respondents !Counsel for the petitioner : Sri J.Sudheer Counsel for the Respondent: Standing counsel for High Court of A.P. <Gist : >Head Note: ? Cases referred: 1. (2000)6 Supreme Court Cases 562 2. AIR 1974 SUPREME COURT 259 3. AIR 1963 Supreme Court 1723 4. AIR 1964 Supreme Court 364 5. AIR 1965 Supreme Court 1103 6. AIR 1969 Supreme Court 983 7. (1978)3 Supreme Court Cases 366 8. (1975)1 Supreme Court Cases 574 9. (1988)3 Supreme Court Cases 370 10.(199)2 Supreme Court Cases 10 11.(1999)5 Supreme Court Cases 762 12.(2002)7 Supreme Court Cases 142 13.(2003)3 Supreme Court Cases 583 14.AIR 1977 SUPREME COURT 1512 15.AIR 1982 SUPREME COURT 673 16.1999(7) SUPREME 612 17.(1999)8 Supreme Court Cases 582 HONOURABLE SRI JUSTICE A.GOPAL REDDY & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.22972 of 2007 Date: 29.12.2009 Between: T.P.Sowmithri …..Petitioner And: The High Court of Andhra Pradesh and another …..Respondents. HONOURABLE SRI JUSTICE A.GOPAL REDDY & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.22972 of 2007 ORDER:(PER HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU) This petition is filed seeking writ of Certiorari for quashing order in Roc.No.129/2001 CII/1, dated 07.10.2002 of the 1st respondent confirming order in L.Dis.No.4616, dated 02.07.2001 of the 2nd respondent and for reinstating the petitioner into service with all consequential benefits. 2) The petitioner was working as typist in the Mahila Court, Visakhapatnam in the Visakhapatnam unit and the 2nd respondent namely District and Sessions Judge, Visakhapatnam was the unit head. After conducting enquiry under Rule 20 of the A.P.Civil Services (Classification, Control and Appeal) Rules, 1991 the District Judge imposed punishment of compulsory retirement on the petitioner and it was confirmed by the High Court on administrative side in appeal filed by the petitioner. Therefore, the petitioner approached this Court for necessary relief under Article 226 of the Constitution of India. 3) It is alleged that the petitioner took Rs.5,000/- from the complainant Poosarla Lakshmana Rao of Bheemunipatnam on 18.12.1998 assuring him with a job in Judicial department for his son and cheated Lakshmana Rao and that when Lakshmana Rao demanded repayment of the said sum of Rs.5,000/- with interest, the petitioner gave a post dated cheque for Rs.5,500/- in his favour on 07.04.1999 and the said cheque was dishonoured for want of sufficient funds in the petitioner’s account. The petitioner denies having received Rs.5,000/- from Lakshmana Rao for securing a job to his son in Judicial department. But, the petitioner did not dispute about he giving cheque for Rs.5,500/- to Lakshmana Rao and dishonour of that cheque. The petitioner contends that Lakshmana Rao gave Rs.5,000/- to him as hand loan and that the petitioner gave cheque for Rs.5,500/- to Lakshmana Rao towards repayment of the said debt with interest. There is no dispute that after dishonour of cheque issued by the petitioner, Lakshmana Rao got issued registered legal notice on 24.04.1999 to the petitioner demanding him to pay amount covered by the cheque and that the petitioner did not give reply to that notice and did not pay amount covered by the cheque and that thereupon Lakshmana Rao filed C.C. No.214 of 1999 against the petitioner in the Court of IX Metropolitan Magistrate, Bheemunipatnam for offence punishable under Section 138 of the Negotiable Instruments Act and that subsequently after compromise between Lakshmana Rao and the petitioner, Lakshmana Rao absented himself resulting in dismissal of C.C No.214 of 1999 and acquittal of the accused (the petitioner) under Section 256 Cr.P.C. on 03.05.2000. 4) When the above criminal case was pending, Lakshmana Rao gave complaint-petition to the Judge, Mahila Court, Visakhapatnam on 21.12.1999 marking copy of the said petition to the District Judge, Visakhapatnam and to the Honourable Chief Justice, High Court of Andhra Pradesh, Hyderabad. Lakshmana Rao has got two sons, out of whom his eldest son is working as L.I.C agent and his second son was without any employment after passing intermediate course. In the complaint, Lakshmana Rao alleged that one A.Bhaskara Rao who is working as Development Officer in L.I.C at Visakhapatnam used to frequently visit Bheemunipatnam and that Bhaskara Rao represented to him about the petitioner being his friend and there being some vacancies in Court and assuring him with a job for his second son and that Bhaskara Rao asked him to pay Rs.5,000/- to the petitioner and took him on 18.12.1998 to the petitioner’s house bearing Door No.7- 14, Midhya Veedhi, Santhosh Nagar, Adavivaram, Simhachalam and that Lakshmana Rao took his second son with them along with Photostat copies of S.S.C certificate and Intermediate pass certificate etc., and that at about 8.00 A.M after receiving Rs.5,000/- from him, the petitioner took some signatures of his second son on some blank application forms and also took Photostat copies of pass certificates of his second son. It is further alleged that in spite of meeting the petitioner at his house and at the Court premisis, no job could be secured and that Bhaskara Rao was not to be seen and that on enquiries, Lakshmana Rao came to know about Bhaskara Rao taking many jobless persons to the petitioner who collected heavy amounts from them with assurance of securing jobs to them in Judicial department and that on 02.04.1999 when he and his son demanded the petitioner and Bhaskara Rao for return of Rs.5,000/- along with interest and threatened to give report to the District Judge, Visakhapatnam on that subject, the petitioner gave post-dated cheque for Rs.5,500/- on Andhra Bank, Simhachalam. 5) The District Judge, Visakhapatnam on receipt of the said complaint copy from Lakshmana Rao, ordered preliminary enquiry in the matter by the Sessions Judge, Mahila Court, Visakhapatnam. After making preliminary enquiry, in which statement of Lakshmana Rao was recorded and copies of dishonoured cheque, dishonour memo of the Bank, notice etc., were collected, the Sessions Judge, Mahila Court, Visakhapatnam sent preliminary enquiry report to the District Judge, Visakhapatnam stating that there is prima facie material to hold a regular enquiry against the petitioner. Thereupon, the District Judge, Visakhapatnam by the order dated 27.03.2000 framed charges against the petitioner and communicated the same to him along with annexures I to III and calling upon him to submit written statement of his defence if any. Charges framed by the District Judge, Visakhapatnam against the petitioner are as follows: “That you Sri T.P.Sowmitri while working as Typist, Mahila Court, Visakhapatnam took a sum of Rs.5,000/- on 18-12-98 from one Sri Poosarla Lakshmana Rao of Bheemunipatnam assuring a job in Judicial Department to the son of the said Lakshmana Rao stating that you know the Judges in the Judicial Department and cheated the complainant Sri Poosarla Lakshmana Rao under a false assurance and thereby you exhibited misconduct and unbecomingness which acts of yours if, proved or established would amount to grave misconduct and unbecomingness within the meaning of Rule 3 of A.P.Civil Services (Conduct) Rules, 1964”. “That the said complainant Sri Poosarla Lakshmana Rao having come to know that he was cheated by you T.P.Sowmitri he demanded repayment of Rs.5,000/- with interest for which you issued a postdated cheque for Rs.5,500/- in the name of Poosarla Lakshmana Rao, complainant on 7-4-99 which was bounced for want of sufficient funds and thereupon the said Lakshmana Rao got issued a Registered Lawyer’s notice on 24-4-99 demanding you to pay the amount of Rs.5,500/- covered by the cheque but you did not pay the amount, though you have received the registered notice and thereby you have exhibited grave misconduct and unbecomingness which acts of yours if, proved or established would amount to grave misconduct and unbecomingness within the meaning of Rule 3 of A.P.Civil Services (Conduct) Rules, 1964”. 6) The petitioner submitted written statement to the District Judge, Visakhapatnam denying taking Rs.5,000/- from Lakshmana Rao with assurance of securing job to his second son, but contending that Lakshmana Rao gave Rs.5,000/- to him as hand loan and he attempted to repay that loan amount with interest by giving cheque for Rs.5,500/- to Lakshmana Rao. He further pleaded that C.C. No.214 of 1999 filed by Lakshmana Rao against him for dishonour of cheque was dismissed for his absence as Lakshmana Rao received entire loan amount thereafter. After considering written statement of defence of the petitioner, the District Judge appointed the IV Additional District Judge, Visakhapatnam as Enquiry Officer for conducting enquiry into charges of misconduct framed against the petitioner. During enquiry, the enquiry officer examined P.Ws 1 to 3 and marked Exs.A-1 to A-11 and after following procedure prescribed by Rule 20 of the A.P. C.S (CC & A) Rules gave enquiry report dated 22.12.2000 holding that the petitioner is guilty of the charges framed against him. P.W-1 is Branch Manager of Andhra Bank, Simhachalam and she was examined to speak about dishonour of cheque issued by the petitioner on his account lying with that branch. P.W-2 is the complainant P.Lakshmana Rao. P.W-3 is the Sessions Judge, Mahila Court, Visakhapatnam, who is the preliminary enquiry officer. The enquiry officer based his conclusion of guilt on Exs.A-5, A-9 and A-10 and also oral testimony of P.W-2. Ex.A-5 is petition given by Lakshmana Rao. Ex.A-9 is copy of legal notice got issued by Lakshmana Rao to the petitioner. Ex.A-10 is sworn statement of Lakshmana Rao recorded by P.W-3, who is the preliminary enquiry officer. The District Judge, Visakhapatnam after enclosing copy of enquiry report called upon the petitioner to submit representation if any. The petitioner submitted his representation and after considering the entire material on record, the District Judge accepted finding of guilt recorded by the enquiry officer on the charges and passed order dated 02.07.2001 imposing punishment of compulsory retirement from service on the petitioner. As against the said order, the petitioner filed appeal to the High Court on administrative side. The High Court by the order-dated 07.10.2002 dismissed the appeal. After a long period of nearly five years, the petitioner has chosen to question the same in this writ petition. 7) It is contended by the petitioner’s counsel that enquiry report is perverse and is not based on legal evidence and that the enquiry officer should have acted on evidence of Lakshmana Rao recorded by him during enquiry and should not have taken into account statement of Lakshmana Rao recorded during preliminary enquiry. It is further contended that material witness namely Bhaskara Rao was not examined during enquiry and that therefore, the enquiry and report therein are vitiated. It is further contended that enquiry officer did not base his conclusions on considerations, which are germane. On the other hand, it is contended by the respondents’ counsel that enquiry report is valid and is based on proper and legal material and that the petitioner could not point out any violation of procedure by the enquiry officer under Rule 20 of the Rules in conducting enquiry. It is also contended for the respondents that delay in approaching this Court by way of this writ petition is fatal and that no reason was put forward by the petitioner explaining delay and latches on his part in filing the writ petition. 8) In Life Insurance Corporation of India V. Jyotish Chandra Biswas[1], when order of termination of the petitioner was passed on 28.01.1969, it was challenged by writ petition on 25.03.1975 after six years and when there is no explanation whatsoever in the writ petition for this inordinate delay, the Supreme Court concluded that it indicated that the petitioner accepted order of termination of his services if not expressly but impliedly. On the other hand the petitioner’s counsel placing reliance on Ramachandra Sankar Deodhar V. State of Maharashtra[2] contended that the principle on which the Court proceeds in refusing relief to the petitioner on ground of latches or delay is that rights which have accrued to other by reason of delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It was a decision rendered by the apex Court in a matter relating to denial of promotion to the petitioners. It is not a case of termination of services of the Government servant. Observations of the Supreme Court in the latter decision cannot be applied to facts of this case which relates to compulsory retirement of the petitioner from service. The former decision which is later in point of time is aptly applicable to facts of this case. In this writ petition, the petitioner did not attempt to explain inordinate delay of five years in filing this writ petition after disposal of departmental appeal by the 1st respondent. On the other hand, in Para-2 of their counters, the respondents 1 and 2 specifically pleaded that unexplained delay on the part of the writ petitioner in not challenging disciplinary proceedings for all these years is fatal to maintainability of this writ petition. In spite of it, the petitioner did not make any endeavour to file reply affidavit putting forth any reasons explaining the inordinate delay. It only suggests that the petitioner has no explanation at all for the delay. It is contended by the petitioner’s counsel that due to poverty and lack of funds, the petitioner might not have taken diligent steps to file this writ petition immediately after disposal of departmental appeal by the 1st respondent. On the other hand the respondents’ counsel contended that the delay may suggest that the petitioner was gainfully employed elsewhere and therefore, he was not very much serious in questioning the disciplinary proceedings by way of this writ petition. Having regard to circumstances of the case, we have to conclude that the petitioner has tacitly accepted his compulsory retirement from service; or otherwise he would not have slept over the order of compulsory retirement from service for all these five years conveniently. 9) No doubt, this Court exercising powers under Article 226 of the Constitution of India will not hesitate to interfere in departmental enquiry results in case findings of the enquiry officer, the disciplinary authority and the appellate authority are based on no evidence and based on mere surmises and conjectures and also in case findings recorded in disciplinary proceedings are perverse. The petitioner’s counsel took us through catena of legal pronouncements of the Apex Court on this aspect. As a matter of recapitulation, those decisions may be briefly reproduced herein. In State of Andhra Pradesh V. S.Sreerama Rao[3], on scope of scrutiny under Article 226 of the Constitution of India by the High Court, it was observed: “The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.” I n Union of India V. H.C.Goel[4], it was laid down by the Supreme Court : “There can be little doubt that a 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 State of Madras V. G.Sundaram[5], it was held by the Supreme Court that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it is shown that the impugned findings were not supported by any evidence. In Central Bank of India V. Prakash Chand Jain[6], the Supreme Court observed: “The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.” In Nand Kishore Prasad V. State of Bihar[7] the Supreme Court reiterated: “Disciplinary proceedings before a domestic tribunal are of a quasi-judicial character; therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusion on the basis of some evidence, i. e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries.” In L.Michael V. Johnson Pumps Limited[8], on the question of interference by the Supreme Court with a finding fact recorded by the trial Court, the Supreme Court held: “If such a finding is based on no evidence, or is the result of a misreading of the material evidence, or is so unreasonable or grossly unjust that no reasonable person would judicially arrive at that conclusion, it is the duty of this Court to interfere and set matters right.” In Ishwarchand Jain V. High Court of Punjab and Haryana[9], it was held by the Supreme Court that if the conclusions are based on non-existent and irrelevant material and if order of termination was based on unsubstantiated allegations, then such order is liable to be set aside. In Kuldeep Singh V. Commissioner of Police[10], the Supreme Court observed: “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 an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.” In Bank of India V. Degala Suryanarayana[11], the Supreme Court held: “STRICT rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i. e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding.” In Sher Bahadur V. Union of India[12], the Supreme Court observed: “The expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law.” In Lalit Popli V. Canara Bank[13], the Supreme Court made comparison of nature of proof required in criminal proceedings as well as disciplinary proceedings before a domestic tribunal and laid down. “IT is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him: whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. [see State of Rajasthan v. B. K. Meena and Ors. (1996) 6 SCC 417)]. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. WHILE exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority” 10) Apart from the above case law relied upon by the petitioner’s counsel, the respondents’ counsel cited certain reported decisions of the apex Court on these aspects. I n State of Haryana V. Rattan Singh[14], the Supreme Court enunciated the following principles regarding rules of evidence in a domestic enquiry: “IT is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record.” I n J.D.Jain V. Management of State Bank of India[15], the Supreme Court reiterated “IN an application for a Writ of Certiorari under Art. 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based