Andhra High CourtK.G. Prakash Chary vs High Court Of A.P. And Ors. on 31 January, 2002Equivalent citations: 2002(2)ALD494, 2002(3)ALT84, (2002)IIILLJ944APAuthor:Ar. LakshmananBench:Ar. Lakshmanan,I. VenkatanarayanaJUDGMENT
 

  Ar. Lakshmanan, C.J.1. Heard Mr. D.V. Sitharama Murthy, learned Counsel appearing on behalf of the petitioner and Mrs. M. Bhaskara Lakshmi, learned Standing Counsel appearing on behalf of the respondents.2. The present writ petition has been filed by the petitioner for issue of a writ of certiorari seeking to quash the proceedings issued by the 2nd respondent-District and Sessions Judge, Mahabubnagar in Order No. 246/92/Adm/2972 dated 26-4-1995 removing the petitioner from service, as confirmed, on appeal, by the 1st respondent in its proceedings Roc No. 2829/95/C.II/1 dated 20-6-1996 holding the same as illegal and arbitrary and for a consequential direction to the 2nd respondent to reinstate him into service with all attendant benefits.3. The petitioner was appointed as Bailiff and was posted at District Court, Mahabubnagar on 3-4-1984. On 1-9-1989 he was transferred to Munsif Magistrate's Court, Kalwakurthy. On 4-7-1992 the District Munsif, Kalwakurthi passed an order of attachment before judgment in IA No. 196 of 1992 in OS No. 112 of 1992 and the petitioner was deputed on the same day to serve the order of attachment on the judgment debtors therein and to attach the properties mentioned in the attachment warrant. According to the petitioner, the judgment debtors, on seeing the petitioner, left the village and their residence was also locked and therefore he could not effect service as it was also sunset by then. On 13-8-1992 the Manager of the State Bank of India filed IA No. 270 of 1992 which was dismissed holding that there cannot be a second attachment order for the same property, On 2-9-1992 the District and Sessions Judge, Mahabubnagar issued a memo calling for the petitioner's explanation for the irregularities committed by him in executing the warrant of attachment. On 30-9-1992 the petitioner submitted his explanation to the District Munsif, Kalwakurthi, for onward transmission to the District Judge and also submitted an advance copy directly to the District and Sessions Judge, Mahabubnagar by Registered Post with Acknowledgment Due. The District and Sessions Judge by an order No. 246/92/ Adm/8749 dated 31-10-1992 placed the petitioner under suspension pending enquiry into the charge of dereliction of duty and appointed Munsif Magistrate, Nagarkurnool as Enquiry Officer. On 8-12-1992 the Enquiry Officer framed a charge against the petitioner and the petitioner denied the charge and requested for dropping the proceedings. After completion of enquiry, the Enquiry Officer submitted his report to the District and Sessions Judge, Mahabubnagar. On receipt of the enquiry report, on 3-9-1993 the District and Sessions Judge directed the petitioner to show-cause as to why the enquiry report should not be accepted and why the petitioner should not be dismissed from service. The petitioner sought extension of time by 30 days for submitting his explanation. On 26-4-1995 the District and Sessions Judge by his proceedings No. 246/92/Adm/2972 removed the petitioner from service. Aggrieved by the said order passed by the District and Sessions Judge removing him from service, the petitioner preferred an appeal before the High Court to declare the proceedings of the District and Sessions Judge dated 26-4-1995 as arbitrary and illegal and to reinstate him into service. The appeal was rejected by the High Court on 20th June, 1996. Aggrieved by the said order the petitioner filed the above writ petition to quash the order dated 26-4-1995 of the District and Sessions Judge, Mahabubnagar, as confirmed on appeal by the High Court by order dated 20-6-1996, and for a consequential direction to the District and Sessions Judge to reinstate the petitioner into service with all consequential and attendant benefits.4. We have perused the affidavit and the counter-affidavit filed by the respective parties and also the charge framed, the enquiry report submitted by the Enquiry officer and the proceedings of the District and Sessions Judge, Mahabubnagar dated 26-4-1995 and the final order dated 20-6-1996 passed by the High Court.5.       The  Enquiry Officer framed  the following charge against the petitioner, viz:--"That you, being a Government Servant, during the discharge of official duties i.e., at the attachment order passed in IA No. 194 of 1992 in OS No. 112 of 1992 on the file of the District Munsif, Kalwakurthy, have acted in such a manner which amounts to dereliction of duties".6. The petitioner submitted his written statement to the Enquiry Officer denying the charge and requested for dropping the proceedings. According to the learned Counsel for the petitioner, the petitioner submitted Form-1 and expressed to examine the witnesses on his behalf and also sought time for the same but extension of time was refused and the Enquiry Officer, without providing sufficient and reasonable opportunity to the petitioner either to cross-examine the prosecution witnesses or to examine the defence witnesses, proceeded with the enquiry which is against the principles of natural justice and that the petitioner was also denied defence assistance. We have perused the Enquiry Officer's report, which, in our opinion, makes it clear that reasonable and sufficient opportunity was provided to the petitioner to defend himself during the course of enquiry. It is further argued by the learned Counsel for the petitioner that the finding of the Enquiry Officer regarding the attachment of Black and White T.V. set is totally false as the scribe of the Panchanama was not examined. Further, the defendants in the suit filed a police complaint stating that their Black and White T.V. set was unauthorisedly taken away by the Branch Manager, State Bank of India. According to the petitioner the document is not conclusively proved and the Enquiry Officer has erroneously concluded that the petitioner has failed to discharge his duties and that the petitioner's conduct proved the charge. Hence the learned Counsel for the petitioner submitted that the Enquiry Officer's report is not supported by any material.7. The learned District and Sessions Judge directed the petitioner to show-cause why the Enquiry Officer's report should not be accepted and the petitioner should not be dismissed from service. The petitioner made an application to give him certain documents and also grant him extension of time by 30 days to submit his explanation. Ultimately the petitioner submitted his explanation and stated therein that the enquiry was completed and concluded without giving him an opportunity to cross-examine the prosecution witnesses nor to examine the defence witnesses and therefore the findings of the Enquiry Officer are not proper. In our view, the said contention was rightly not accepted by the learned District and Sessions Judge for the reasons stated in his order dated 26-4-1995 and he removed the petitioner from service. The High Court also on a perusal of the entire material dismissed the appeal filed by the petitioner, vide proceedings dated 20-6-1996, holding that the petitioner has destroyed official records and that even after attaching the TV the same was not produced in the Court.8. It is contended by the learned Counsel for the petitioner that the charge is vague and not definite and is lacking in material particulars and that the material on the basis of which the charge has been founded was not supplied to the petitioner and that the petitioner was not provided with defence assistance in the conduct of the enquiry whereas the Enquiry Officer was a Judicial Officer and that the petitioner was denied reasonable opportunity to defend himself in the enquiry and that the material documents on which the charge is founded, such as Panchanama etc., were not produced before the Enquiry Officer or marked. Concluding his argument, the learned Counsel submitted that the charge is not based on any evidence.9. A counter-affidavit was filed by the 2nd respondent-District and Sessions Judge, Mahabubnagar.10. We have perused the counter-affidavit and the reply filed by the petitioner. We have given our anxious consideration to the points argued by the learned Counsel for the petitioner and countered by the learned Standing Counsel appearing on behalf of the respondents. It is seen from the Enquiry Officer's report that the delinquent filed his written statement denying the charge and stated to decide the enquiry on the basis of his written statement. The petitioner did not wish to examine any witnesses on his behalf and did not file any documents. The petitioner has admitted that he was entrusted with the warrant of attachment on 4-7-1992 to attach the movables of the judgment debtors in their house. He has also admitted that on the same day he went to the house of the judgment debtors to attach the movables but he contended that the house was found locked and the debtors were absent and therefore he could not execute the warrant. From 6-2-1993 the enquiry was posted to 20-2-1993 and since then the delinquent did not attend the office for about eight adjournments. The delinquent though was present on 3-7-1993 did not want to examine any witnesses and did not file any documents. Therefore, the contention of the petitioner that the Enquiry Officer did not give him opportunity to defend his case is not correct. Though he mentioned in Form-I the name of the Head Clerk of that Court as a witness to be examined, he did not choose to examine him in the enquiry. The Enquiry Officer in Paragraph 19 of his report has stated that the petitioner did not examine any of the staff members of the Court or the judgment debtors or his own brother-in-law but asserted that he had applied for two days CL On 6-7-1992 and 7-7-1992 and EL for 13 days till 18-7-1992 for the reason of his mother's death. We have also perused the evidence tendered by PW1 Mr. V. Chandrasekharam, Deputy Manager of the State Bank of India who stated that the delinquent dictated the Panchanama to one V. Venkata Kishan Rao and the same was signed by V. Venkata Kishan Rao, V. Jodya, Y. Parvath Reddy and Shamson, In the enquiry they were examined by the Enquiry Officer and they were also cross-examined by the delinquent. The Enquiry Officer has discussed about the behaviour of the delinquent in discharge of office duties in view of Ex.P8 letter of District Munsif addressed to the Unit Officer and there is no mention in that paragraph about his filing of a complaint before the police. The delinquent received final show-cause notice on 7-9-1993 and took time to submit his explanation. A further notice was sent to him finally to file his explanation. The petitioner filed his explanation on 12-1-1994 i.e., after a lapse of four months and five days which itself shows that the petitioner was in the habit of delaying the enquiry. Finally the delinquent was removed from service, vide order passed by the 2nd respondent No. 246/92/ Admn/2972 dated 26-4-1995 and the appeal filed by the delinquent against this order was also dismissed by the High Court vide order dated 20-6-1996.11. We have perused the entire pleadings and the documents placed before us. The charge, in our opinion, is specific and not as vague as contended by the learned Counsel for the petitioner. Since the delinquent has not requested anything during the course of enquiry and requested only to close the enquiry on the basis of the written statement, we are of the opinion that there was no need for the Enquiry Officer to supply any material papers. The Enquiry Officer after examining PWs.1 to 4 submitted his enquiry report opining that the charge framed against the delinquent was proved beyond reasonable doubt. Therefore, we are of the opinion that the contention put forward by the petitioner that he was not provided reasonable opportunity is totally incorrect and the records clearly show that the delay in completing the enquiry was due to reasons directly attributable to the petitioner. Though the delinquent has mentioned the name of the Head Clerk as a witness in Form-I on his behalf, he was not examined by the petitioner. The petitioner filed the written statement on 3-7-1993 requesting the Enquiry Officer to decide the enquiry on the basis of his written statement and stated that he would not file any document and examine any witnesses. The returning of the warrant by the delinquent is on 20-7-1992 as is evident by the endorsement made by the Court Head Clerk but not on 6-7-1992 as alleged. We are, therefore, of the opinion that the contention of the petitioner that no opportunity was given to him is incorrect and in fact he has gone to the house of the debtors and conducted Panchanama but did not file it into Court and this is evident from the statement of PWs.1 to 4. In our opinion, the finding rendered by the Enquiry Officer and the order passed by the learned District and Sessions Judge and the order of the appellate authority are perfectly in order and does not require any interference by this Court.12. Learned Counsel for the petitioner finally submitted that the punishment of removal imposed by the District and Sessions Judge does not bear nexus to the nature of the charge proved against the petitioner. We see merit and substance in the said contention of the learned Counsel for the petitioner. The charge framed against the petitioner is that during the discharge of his duties i.e., at the time of executing the attachment order passed in IA No. 196 of 1992 in OS No. 112 of 1992 the petitioner has acted in such a manner which amounts to dereliction of duties. When the petitioner was entrusted with the process and warrant of attachment on 4-7-1992 he has returned the summons and notices and warrant of attachment with the report that the respondent refused to receive the summons and went away. He further reported on the warrant of attachment that the respondents kept the articles to be attached in the house and locked the doors and hence not attached. The charge against the petitioner is that the bailiff with the collusion and connivance of the respondents returned the summons, notice and warrant of attachment without proper service and execution. We have already referred to the evidence let in by the parties and the findings rendered by the Enquiry Officer and also of the District and Sessions Judge and held that the charge has been proved beyond any doubt and on the basis of the proved misconduct the punishment of removal has been imposed on the petitioner by the District and Sessions Judge. In our considered opinion the punishment of removal of the petitioner from service is not only disproportionate but is disproportionate to the nature of charge levelled against the petitioner and proved against him. The Honourable Supreme Court in many cases held that if the punishment imposed by the disciplinary authority or the appellate authority appears to be disproportionate to the gravity of the charge for the High Court, it would appropriately mould to resolve by directing the disciplinary authority or appellate authority to consider the penalty imposed or to shorten the litigation, it may itself impose appropriate punishment with cogent reasons in support thereof. In this case the petitioner joined the service on 3-4-1984 as bailiff and he was suspended on 31-10-1992 and he was removed from service on 26-4-1995 after enquiry. At the time of hearing of the writ petition we directed the learned Standing Counsel appearing for the High Court to verify from the records as to whether the petitioner has suffered any other punishment earlier, other than the one imposed by the District Judge in this case and confirmed on appeal by the High Court. The learned Standing Counsel Mrs. Bhaskaralakshmi, on instructions from the officer concerned, reported that except the present charge, the petitioner did not suffer any other punishment or face any other departmental enquiry. The petitioner has got 12 more years of service. Since the penalty imposed by the disciplinary authority in the facts and circumstances of the case was disproportionate to the proved misconduct we hold that the same is not justified. Under such circumstances it would be appropriate to modify the punishment of removal from service in the following manner. The petitioner was suspended on 31-10-1992 and the punishment of removal was inflicted on him on 26-4-1995. During this period the petitioner was paid only subsistence allowance and from 26-4-1995 the petitioner has been out of service. Interests of justice and fair play will be amply met if we order by way of punishment that the petitioner is not entitled to any payment from 31-10-1992 to 26-4-1995, other than the subsistence allowance already received by him, and that he will not be entitled for payment of any salary from 26-4-1995 till the date of his reinstatement. We make it clear that the petitioner will be reinstated in service with continuity of service only. The petitioner shall be reinstated into service within two weeks from today.13.    The writ petition is accordingly allowed in part. No order as to costs.