THE HON'BLE Mr. JUSTICE V.V.S.RAO and THE HON'BLE Mr. JUSTICE C.V.RAMULU +WRIT PETITION No.1320 of 2007 %Dated -7-2008 # Between: A. Venkat Reddy S/o A. Gunti Reddy in the Hon'ble Court Sr. Judge Court, Ponganur R/o Tirupathi, Chittoor District. ..... PETITIONER AND 1 The District & Sessions Judge, Chittoor, Chittoor District. 2 K.S. Appa rao S/o Not known Chittoor, Chittoor District. 3 S. Rajendran S/o Subramanyam Special Mobile Court, Chittoor Chittoor District. 4 M. Rambabu S/o Not Known Tirupathi, Chittoor District. 5 P. Vishwanath Reddy S/oNot Known Principal Sub Court, Tirupathi, Chittoor District. 6 C. Surendrannath Reddy S/o C. Narayana Reddy Sr Civil Judge Court, Puttoor Chittoor District. .....RESPONDENTS !Counsel for the petitioner : SHRI M. SURENDER RAO ^Counsel for Respondents: SRI D.V.SITARAM MURTHY <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1984 SC 1361 2. AIR 1999 SC 1994 3. 1992(4) SCC 54 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE V.V.S.RAO and THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No.1320 of 2007 Between: A. Venkat Reddy S/o a. Gunti Reddy in the Hon'ble Court Sr. Judge Court, Ponganur R/o Tirupathi, Chittoor District. ..... PETITIONER AND 1 The District & Sessions Judge, Chittoor, Chittoor District. 2 K.S. Appa rao S/o Not known Chittoor, Chittoor District. 3 S. Rajendran S/o Subramanyam Special Mobile Court, Chittoor Chittoor District. 4 M. Rambabu S/o Not Known Tirupathi, Chittoor District. 5 P. Vishwanath Reddy S/oNot Known Principal Sub Court, Tirupathi, Chittoor District. 6 C. Surendrannath Reddy S/o C. Narayana Reddy Sr Civil Judge Court, Puttoor Chittoor District. .....RESPONDENTS 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 issue Writ, Order or direction especially one in the nature of writ of mandamus declaring that the action of the Respondents 1 and 2 in issuing proceedings Order in L.Dis No.32/ESTT/2006, dated 11-1-2007 is illegal, arbitrary, discriminatory and mala fide and there fore liable to be set a side and further declare the petitioner is entitled to be promoted as Office Superintendent without reference to the punishment order imposed against him and pass such order or orders as this Hon'ble Court may deemed fit and proper in the circumstances of the case. Counsel for the Petitioner: Mr. M.SURENDER RAO Counsel for Respondents: Mr. D.V.SITHARAM MURTHY (SC FOR APHC) The Court made the following : THE HON’BLE SRI JUSTICE V.V.S. RAO and THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.1320 of 2007 O R D E R: (per C.V. RAMULU,J) This Writ Petition is filed seeking a Mandamus declaring the action of respondents 1 and 2 in issuing Proceedings L.Dis.No.32/Estt/2006, dated 11-1-2007 as arbitrary and illegal and consequently to set aside the same. It appears, at the relevant point of time, the petitioner was working as Upper Division Clerk/Deputy Nazir in the Court of III Additional District Judge, Tirupathi. In the midnight of 19/20-7-2005, due to heavy downpour, rain water entered into the residential quarters of the Judicial Officers at Tirupathi. Petitioner was informed to rush to the quarters for help and to remove the Court files etc. However, petitioner reached the quarters at 6.30 a.m. on 20-7-2005. Thus, immediately he did not reach the quarters for rendering assistance to the Judicial Officers. Therefore, respondent No.1 issued a charge sheet dated 8-12-2005 enumerating the following charge: “That the said Sri A. Venkat Reddy, Senior Assistant, while working as Senior Assistant (D.N.) in III Addl.District Judge’s Court, Tirupati failed to attend to render necessary assistance to the inmates of the Judicial Officers’ quarters whose houses were submerged with water, which is minimum expected from the Senior Assistant (Nazarath Section) to report before the Officers along with available Process Servers to render help in excavating the inmates and their belongings including court files from the Judicial Officers quarters, though informed and only reported in the morning after water was cleared by Fire Service personnel, which amounts to dereliction of duties and which is unbecoming of an employees and which if proved or established amounts to misconduct within the meaning of Rule 3 of APCS (Conduct) Rules,1964.” Petitioner submitted his explanation to the said charge stating that in the night of 19-7-2005 there was heavy rain fall at Tirupathi and entire Tirupathi town was submerged with water and electricity was cut off in the residential area where he was residing. Though he admitted that he received a phone call from the II Additional Junior Civil Judge, Tirupathi on the midnight of 19-7-2005 about rain water entering into the residential quarters of the Judicial Officers, he could not rush to the quarters, as there was heavy downpour and his residence was 4 kilometres away from the Judicial Officers’ quarters. Apart from that, he is a heart patient and undergone Angiography on 11- 12-2002, stenting was also done of RCA bifurcula stenocis and he was under continuous medication and daily after food, he would take medicines which will keep him drowsy. According to him, he made best efforts to reach the quarters, but could not, as the rain water was overflowing on the roads. Ultimately, he reached at 6.30 a.m. on 20-7- 2005 and rendered all possible help to the Judicial Officers. Thus, he requested for dropping of the charge. However, having not satisfied with the explanation, an Enquiry Officer was appointed and enquiry was conducted. The learned III Additional District Judge, Tirupathi under whom the petitioner was working at the relevant point of time, was examined as P.W.1 and the III Additional Junior Civil Judge, Tirupathi was examined as P.W.2. The complaint made by P.W.1 to the learned District Judge, Chittoor was marked as Ex.P1. On the basis of the evidence on record, the Enquiry Officer held the petitioner guilty of the charge. Thereafter, a show cause notice was issued to the petitioner, who submitted his explanation on 30-11-2006. According to the petitioner, without considering the said explanation, the 1st respondent imposed the punishment of withholding of promotion permanently, by an Order dated 11-1-2007, which is illegal. Hence, this Writ Petition. A detailed counter affidavit has been filed by the 1st respondent denying the allegations made by the petitioner as to development of illwill or malice and there was no bias at all in dealing with the present case. It was stated that the petitioner was placed under suspension on 8-11-2005 and the said Proceedings were issued consequent on the directions of this Court, on administrative side. Further, the charge levelled against the petitioner was enquired into in detail and the Enquiry Officer held the petitioner guilty of the charge. Therefore, petitioner was imposed with a punishment of denying promotion permanently, since the charge was grave in nature and the petitioner failed to react to the situation and to attend to his legitimate duties. There was a dereliction on the part of the petitioner in attending to his duties being a Deputy Nazir having control over Nazarath and left the Judicial Officers and their family members to their fate on a mid night in a heavy rain fall and when they came out from their quarters with wearing apparels in rain water mixed with drain water upto waist level depth, despite receiving a phone call from a responsible Judicial Officer. Therefore, conducting enquiry and imposing punishment was in consonance with A.P. Civil Services (CCA) Rules,1991. The impugned Order is perfectly justified and valid. Learned counsel for the petitioner strenuously contended that the duties of a Deputy Nazir are not enumerated anywhere and the petitioner was not supposed to attend to any such rescue operations. If any help is expected from the petitioner, it was only on humanitarian basis, but the petitioner explained that in the mid night of 19-7-2005 whole of Tirupathi was in rain water, the place where the petitioner was residing was 4 Kilometres away from the Judicial Officers’ quarters and the electricity was cut-off in the entire area where the petitioner was residing; therefore, he could not come out. Apart from this, petitioner was a heart patient and underwent surgery and was under medication and he was not supposed to come out in the mid of the night when there was heavy downpour and drench himself completely. This would be definitely against the medical advice. The respondents instead of taking the practical situation into consideration, have made a pedantic approach and have intentionally involved the petitioner into such misconduct and conducted enquiry and imposed the punishment. Learned counsel further stated that such a misconduct, as is alleged, is not enumerated in the A.P. Civil Services (Conduct) Rules and there was no authority for the 1st respondent to enquire into such a misconduct at all. Neither such duties were entrusted officially to the petitioner nor he is expected to attend to such duties officially or on protocal basis. In fact, the first charge memo issued on 8-12- 2005 itself would show the mind set of the 1st respondent roping in the petitioner into the present misconduct and enquiry. Even otherwise, the petitioner, in the facts and circumstances of the case, had reached the place i.e. the Judicial Officers quarters at 6.30 a.m. on 20-5-2007 and rendered all the assistance possible. Looking from any angle, there was no misconduct, whatsoever, on the part of the petitioner and the respondents have no authority to enquire into such a misconduct and punish the petitioner. Learned counsel appearing for the 1st respondent submitted that firstly the petitioner had an effective alternative remedy of appeal before the High Court on administrative side. Instead of availing the same, petitioner had filed this Writ Petition directly. Secondly, the petitioner being a Deputy Nazir and control over the Nazarath Section could have reached the quarters where ran water inundated and the files were being spoiled within a reasonable time as was done by other two staff members. The alleged dereliction of duties is nothing but a misconduct, since he failed to react to the situation. The word ‘misconduct’ has a generic meaning. The dereliction of duties herein is failure on the part of the petitioner in not reacting to the situation immediately and rendering assistance to his superior Officers along with other staff members. Therefore, it cannot be said that this is not an enumerated misconduct and as such, no enquiry could have been conducted by the 1st respondent and no punishment could have been imposed against him. The very conduct of the petitioner in reaching the Judicial Officers’ quarters on the next day morning at 6.30 a.m. itself would show his recklessness towards the safety and security of the Court files etc. Apart from this, petitioner even on protocol side is supposed to assist his superior officers whenever it is necessary. This is a case where the Judicial Officers were in soup, in view of entry of water into their quarters in the mid of the night. Petitioner could have been of a great help had he reached the quarters in time. Looking even from humanitarian angle, it appears that the petitioner failed to react to the situation as a human being. Therefore, the conduct of the petitioner cannot be approved to be a good conduct and no enquiry can be made therefor or no punishment could have been imposed against him. The Writ Petition is devoid of merits and is liable to be dismissed. We have given our earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned Order and other material made available on record. From the pleadings of both the parties, the following questions of law arise for consideration: (1) Whether the petitioner could not have filed this Writ Petition without availing the alternative remedy of appeal before the High Court on administrative side ? (2) Whether the allegations made against the petitioner can be said to be a misconduct on his part in his official capacity as a Deputy Nazir and the same is an enumerated misconduct under the Rules ? For the sake of convenience, we deal with the second question at the first instance. Before going into the details, it is relevant to notice Rule 9 of the A.P. Civil Services (CCA) Rules,1991 and Rule 3 of A.P. Civil Services (Conduct) Rules,1964, which read as under: “9. Penalties:-- The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on a Government servant, namely— Minor Penalties: (i) Censure; (ii) Withholding of promotion; (iii) …………………..(omitted) (iv) Withholding of increments of pay without cumulative effect; (v) (a) suspension, where a person has already been suspended under Rule 8 to the extent considered necessary; (b) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. Major penalties: (vi) withholding of increments of pay with cumulative effect; (vii) (a) and (b)……………………. (viii) Compulsory retirement; (ix) Removal from service which shall not be a disqualification for future employment under the Government; (x) Dismissal from service which shall ordinary be a disqualification for future employment under the Government;” “Rule 3. General:- (1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety. (2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government. (3) No Government employee shall act in a manner, which will place his official position under any kind of embarrassment. (4) ……………….. …………………..” Admittedly, the charge against the petitioner was that he failed to render necessary assistance to the inmates of the Judicial Officers quarters when the quarters submerged in water, which was the minimum expected of a Senior Assistant (Nazarath Section). He should have reported before the Officers along with available Process Servers to render help in excavating the inmates and their belongings including Court files from the Judicial Officers’ quarters, though he was informed he reported only in the morning after the water was rescinded, which amounts to dereliction of duties and unbecoming of an employee and amounts to misconduct within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules,1964. Petitioner has admitted that he had received a phone call in the mid night from a Judicial Officer informing about entering of water into the Judicial Officers’ quarters. It appears, along with the petitioner two other employees were called for help. The other two employees had reached the Judicial Officers’ quarters in the mid night by 1.00 a.m. and rendered assistance whatever was possible. It was the explanation of the petitioner that he was a heart patient and undergone surgery in the year 2002 and he was under medication. Further, the whole of Tirupathi town was inundated with water on that night, electricity in the area in which the petitioner was residing was cut-off and it was totally dark and his residence was about 4 kilometres from the Judicial Officers’ quarters. Therefore, in view of the situation in that mid night as well as in view of his health condition, he could reach the quarters only at 6.30 a.m. on 20-7-2005. There is no dispute as to his reaching the quarters at 6.30 a.m. on 20-7-2005 and rendering all possible help. Absolutely, there is no discussion anywhere in the impugned Order that had the petitioner reached in time, he would have done something unusual and the situation would have been far better. In fact, two employees of the Court had already rushed by 1.00 a.m. and had rendered help whatever possible. Petitioner had also arranged water, tea etc., in the morning hours and helped the Officers thereafter. The fact that the petitioner had undergone heart surgery and was under medication is not in dispute. When asked as to the duties required to be attended to by a Deputy Nazir, learned counsel appearing for the respondents failed to show anywhere as to the nature of duties other than official. Though the learned counsel for the respondents stated that the petitioner failed to react to the situation and failed to render assistance, which amounts to dereliction of duties and unbecoming of an Officer and amounts to misconduct within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules,1964, could not demonstrate that the allegations of dereliction of duties of the alleged nature also amounts to misconduct either under the Rules or any decided case law. However, learned counsel has placed before this Court a copy of the letter dated 8-4-2008 addressed by the learned District Judge, Chittoor to the Registrar General of the High Court, wherein some of the duties and responsibilities that are to be discharged by the Nazir/Deputy Nazir are stated as under: 1. Entrustment of duties to Process Servers of the Establishment placed under his control i.e. placing Process Servers to guard duties of the local courts and entrustment of Process papers, such as, summons/notices etc., to the Process Servers. 2. Entrustment of paper/warrants to the Field Assistants attached to the Process/Nazarath Section. 3. Supervision of preparing the Process and warrants. 4. Receive of executed/returned notices and warrants by the Process-Servers/Amins (F.As)/Bailiffs. 5. Returning of the served and unserved notices/warrants to the concerned Presiding Officers of the Courts in time. 6. Receiving of cash relating to Process Establishment; and 7. to account for the payment of entrusted cash. 8. Acting as Curator for the moveable properties attached and produced before the Court till they are kept in Court custody. 9. Attending to the nature of work/works that may be entrusted to the Presiding Officer; and 10. Maintenance of Register relating to Nazarath Section. 11. Supervision over the performance of duties entrusted to the staff members, such as, Process-Servers/Amins attached to the Process/Nazarath Estt.” On the other hand, learned counsel for the petitioner contended that the alleged dereliction cannot be called a misconduct within the meaning of A.P. Civil Services (Conduct) Rules,1964, since it is not one of the enumerated misconducts and in this regard, learned counsel for the petitioner placed reliance on the judgment reported in A.L.KALRA v. PROJECT AND EQUIPMENT CORPORATION OF INDIA LIMITED[1] and drawn attention of the Court to paragraphs 5 and 22, which read as under: “(5) A memorandum dated 22/07/1980 was served upon the appellant stating therein that the competent authority proposes to hold an enquiry against him under Rule 27 of the Project and Equipment Corporation of India Ltd. Employees' (Conduct, Discipline and Appeal) Rules, 1975 ('1975 Rules' for short ). There were two heads of charges in the charge-sheet drawn-up against the appellant on which disciplinary enquiry was proposed to be held. These two heads of charges read as under :"article ISHRI A. L. Kalra while functioning as Deputy Finance Manager-Grade II in the Finance Division of the PEC during April, 1979 applied and drew an advance of Rs. 16,050. 00 for purchase of a plot of land at Faridabad. But he did not furnish the relevant documents in the office nor did he refund the amount of advance to the Corporation within two months of the date of drawal of the advance as required under R. 10 (1) (c) (i) of PEC House Building Advance (Grant and Recovery) Rules. SHRI Kalra by his above act exhibited lack of integrity and conduct unbecoming of a public servant and violated R. 4 (1) and (iii) and R. 5 (5) of the PEC Employees' (Conduct, Discipline and Appeal) Rules and Rule 10 (1) (c) (i) of PEC House Building Advance (Grant and Recovery) Rules and thereby committed misconduct punishable under the PEC Employees' (Conduct, Discipline and Appeal) Rules, 1975. (22) Rule 4 bears the heading 'general'. Rule 5 bears the heading 'misconduct'. The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope R. 4 into R. 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in Glaxo Laboratories (I.) Ltd. v. Presiding Officer, Labour. Court, Meerut, (1984) 1 SCC 1 : (AIR 1984 SC 505), where this Court held that 'everything which is required to be prescribed has to be prescribed with precision and, no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly failing within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty'. Rule 4 styled as 'general' specifies a norm of behaviour but does not specify that its violation will constitute misconduct. In Rule 5, it is nowhere stated that anything violative of Rule 4 would be per se a misconduct in any of the sub-clauses of R. 5 which specifies misconduct. It would therefore appear that even if the facts alleged in the two heads of charges are accepted as wholly proved, yet that would not constitute misconduct as prescribed in Rule 5 and no penalty can be imposed for such conduct. It may as well be mentioned that R. 25 which prescribes penalties specifically provides that any of the penalties therein mentioned can be imposed on an employee for misconduct committed by him. Rule 4 does not specify a misconduct.” Learned counsel for the petitioner has also relied upon a decision of the Apex Court reported in STATE BANK OF INDIA v. T.J. PAUL[2] and drawn attention of the Court to paragraphs 16 and 18, which read as under: “(16) The contention of the learned senior counsel for the respondent ignores the fact that 'gross negligence or negligence likely to involve the Bank in serious loss' would come under major misconduct within para 22 (iv) (1 ). As stated above, even assuming that there is no gross negligence, simple negligence will come under major misconduct if accompanied by 'likelihood' of serious loss and this is clear from para 22 (iv) (1 ). Hence the finding of the Inquiry Officer regarding gross misconduct is correct and could not have been set aside by the High Court. The findings of the Inquiry Officer clearly bring the case under 'major misconduct'. As held in Disciplinary Authority-cum-Regional Manager v. Nikunia Bihari Patnaik, (1996) 9 SCC 69 proof of loss is not necessary. (18) But this does not conclude the matter. The learned senior counsel for the respondent Sri P. P. Rao is right in contending that the appellate authority, once it came to the conclusion that the punishment of dismissal was not warranted in the facts of the case, it could not have awarded the punishment of 'removal' which was not one of the enumerated penalties under para 22 (v) of the Rules. In fact, the learned single