Andhra HC (Pre-Telangana)
Mohd. Mahmood, Attender, Munsif ... vs District And Sessions Judge And High ... on 1 May, 1997
Equivalent citations: 1997(3)ALT597
JUDGMENT S. Parvatha Rao, J.
1. The petitioner seeks a writ of Certiorari quashing the order in proceedings Dis. No. 3267/97/A-1, dated 21-4-1997 of the 1st Respondent i.e., the District and Sessions Judge, Nalgonda District, imposing the punishment of compulsory retirement on him with effect from 30-4-1997.
2. Even though the petitioner could have preferred an appeal against the said order to the 2nd respondent i.e. the High Court of Andhra Pradesh, without availing that alternative remedy he approached this Court directly by way of the present Writ Petition. We asked the learned Counsel for the petitioner as to why the petitioner had not resorted to the alternative relief available to him. The learned Counsel stated that the order of the 1st respondent was perverse and his findings were not supported by any material on record and as it was arbitrary and violative of Article 14 and consequently of Article 21 of the Constitution of India, because the petitioner was deprived of his livelihood by the impugned order of compulsory retirement, he had chosen to approach this Court directly. We also informed the learned Counsel that all that could be placed before the appellate authority and that if the petitioner desired, we would allow the Writ Petition to be withdrawn so that the alternative remedy could be availed of by him. The learned Counsel did not respond to that and insisted that we should go into the merits of the matter. That is how we have heard the arguments of the learned Counsel for the petitioner to see whether any prima facie case is made out to establish that any of the material findings of the 1st respondent could be interfered in exercise of the jurisdiction under Article 226 of the Constitution i.e., of judicial review.
3. The learned Counsel for the petitioner took us through the impugned order as also the report of the Enquiry Officer. It is not the case of the petitioner that any of the principles of natural justice and fair play were violated by the Enquiry Officer or the 1st respondent. A faint contention has been raised in the affidavit in support of the Writ Petition that the Enquiry Officer could not have framed the charges. But, the learned Counsel did not press that contention before us - and rightly so, because under the rules applicable and followed by the Enquiry Officer, he was not precluded from framing the charges.
4. The charge framed against the petitioner was, "That you on 22-4-1995 gave a false declaration to the Munsif Magistrate, Nakarekal, stating that you have got only two daughters and only one son, whereas in fact you have got two sons and two daughters and obtained family planning incentive increment, and thereby committed fraud which amounts to misconduct."
The petitioner was given an opportunity to file a written statement, which he submitted on 11-9-1996. The petitioner did not dispute the fact that on 13-2-1995 his wife gave birth to a male child. In his written statement, he stated that earlier he had one son and one daughter only i.e., in all, he had only three children. His earlier version was that he had one son and two daughters. When confronted with the fact that even prior to 13-2-1995 he had already one son, he came forward with the story, for the first time in his written statement, - this the learned Counsel for the petitioner accepts - that he exchanged the child born to his wife on 13-2-1995 for the daughter of his sister on the fortieth day of the birth of his son and that was how he had been stating earlier that he had one son and two daughters. In an effort to substantiate this story of his, he examined his wife as D.W.1, his sister as D.W.2, and the husband of D.W.2 as D.W.5. He also examined a neighbour as D.W.3, a friend as D.W.4 and a member of the Gram Panchayat of his village as D.W.6. As against this, there was the evidence of P.W.1, the Head Clerk of the Munsif Court, Nakarekal, where the petitioner was working as Attender; P.W.2, Dr. M. Sujatha, who conducted the tubectomy operation on D.W.1; and P.W.3, the then Munsif Magistrate at Nakarekal; and there were also documents marked as Exs.P-1 to P-24. No documents were marked for the petitioner.
5. The Enquiry Officer, who was, at that time, the Munsif Magistrate at Nalgonda, in his report dated 27-11-1996 elaborately considered the material on record. As there was no dispute, whatsoever, that the petitioner's wife gave birth to a male child at Niloufer Hospital, Hyderabad on 13-2-1995, the only question was whether the petitioner had already three children prior to that date i.e., one son and two daughters. If the petitioner's story, as per the explanation given by him in his written statement filed on 11-9-1996 is true, then he must have had only one son and one daughter - not two daughters, or one son and two daughters. His story, as per the written statement, is that his second son born on 13-2-1995 was exchanged for the daughter of his sister (D.W.2), named Afteen Tarunam. Therefore, the question is whether there was any such exchange or whether Afteen Tarunam was petitioner's daughter born to his wife, D.W.1. That was why the Enquiry Officer framed the question, "Whether Afteen Tarunam is the daughter of the delinquent, or whether she is the daughter of the sister of the delinquent ?" as the second question. The other question i.e. "Whether the wife of delinquent gave birth to a male child on 13-2-1995 in Niloufer Hospital, Hyderabad ?", as already stated above, need not detain us.
6. The Enquiry Officer held that no documentary evidence was placed by the petitioner to show that Afteen Tarunam was born to his sister and not to his wife through him and that he did not file the extract of the Birth Register to show that she was the daughter of D.W.2. He also pointed out that though the petitioner filed a photo copy of the certificate issued by the Head Master of Priya Darshini Primary School, Itipamula, he did not choose to examine the Head Master and get the original certificate marked. He also relied on the earlier statements and explanations given by the petitioner i.e. prior to his written statement filed on 11-9-1996. The Enquiry Officer found as follows on this aspect of the matter:
"Above all in the explanation given by the delinquent on 12-2-1996 vide Ex.P-23 to the show cause notice issued by the Hon'ble District and Sessions Judge, Nalgonda, dated 1-2-1996 vide Ex.P-21 it is clearly admitted by the delinquent that he is having three children. In the said application he also mentioned the particulars of the children as follows:-
(1) Mohd. Munavar alias Mohd. Mubin, son, 7 years. (2) Miskeen Tarunam, daughter, 5 years. (3) Afteen Tarunam, daughter, 3 years.
He also stated in the said explanation that his wife undergone tubectomy operation in the month of February, 1995. He did not mention anything about his last son Mujahid born to his wife on 13-2-1995 in Niloufer Hospital. That means in Ex.P-23 he has suppressed about the birth of Mujahid in Niloufer Hospital. In the same Ex.P-23, there is categorical admission of delinquent stating that Afteen Tarunam is his daughter. There is no whisper in Ex.P-23 that Afteen Tarunam is his sister's daughter and that he took her in exchange of Mujahid, born to his wife in Niloufer Hospital. Therefore, from Ex.P-23 it is crystal clear that Afteen Tarunam is the daughter of delinquent. While discussing point No. 1. I have already held that delinquent's wife gave birth to Mujahid in Niloufer Hospital. Therefore, Afteen Tarunam is not the daughter of delinquent's sister and she is the daughter of delinquent and Mujahid is also the son of delinquent."
7. The 1st respondent, in his detailed order dated 21-4-1997, accepted the findings of the Enquiry Officer after going through the entire material relating to the enquiry. The 1st respondent points out that in Exs.P-1, P-4 and P-6 i.e., the application of the petitioner dated 22-4-1995 for grant of family planning incentive increment; certificate of the petitioner dated 5-6-1995; and undertaking given by the petitioner, nothing was mentioned about the birth of a male child on 13-2-1995 and exchange of the child and that, on the other hand, the petitioner mentioned that he got one male child and two female children. The 1st respondent also points out that as per Ex.P-9 i.e. the Casual Leave letter dated 6-2-1995, filed by the petitioner, he only stated that his wife was unwell and that in his applications for leave at the time when D.W.I gave birth, he suppressed that fact. The 1st respondent then observes in his order as follows:
"But actually as per Ex.P-5 certificate given by the Niloufer Hospital, his wife had undergone Tubectomy operation on 14-2-1995. In this Ex.P-5 dated 14-2-1995 it was mentioned that the wife of delinquent was having one male child and two female children. If really Afteen Tarunam was not his daughter, then the certificate should mention two male children and one female child, because on 13-2-1995 she gave birth to a male child. It is only after making some preliminary enquiries it came to light that he was having 4 children and he suppressed the said fact. Ex.P-17 the letter written by the Superintendent of Niloufer Hospital to the District Judge is also to the effect that on 14-2-1995 the wife of delinquent underwent Tubectomy operation and she gave birth to a male child. P.W.2 the doctor who attended the delivery and Tubectomy operation, gave evidence that the date of birth of 14-2-1995 mentioned in Ex.P-5 is a mistake and in fact, she gave birth to a child on 13-2-1995 as per the records in the hospital. P.W.2 also stated that in Ex.P-5 it is mentioned that the wife of delinquent is having one male child and two female children living by that date. In the cross-examination, she stated that 3 children mentioned in Ex.P-5 is inclusive of the child born on 13-2-1995. Obviously, this is not correct because as per the own version of delinquent and Ex.P.-12 dated 26-6-1992 the certificate issued by the school, Ex.P-13 dated 13-7-1993 proceedings of Munsif Magistrate, Suryapet, Ex.P-14 dated 12-7-1994 certificate issued by the school stating that the delinquent was having one male child studying second class and daughter studying first class. Ex.P-15 dated 16-6-1995 also shows one male child and two female children, that he was already having a child of more than 7 years old by the date of operation. In Ex.P-23 dated 12-2-1996 the explanation given by the delinquent to the show cause notice issued by the District Court, he stated that he was having 3 living children, (1) Mohd. Manaver @ Mohd. Mabin, 7 years, (2) Miskeen Tarunam, 5 years and (3) Afteen Tarunam, 3 years. Even in this Ex.P-23 he suppressed the fact of his wife giving birth to male child on 13-2-1995. Even in Ex.P-23 he mentioned Afteen Tarunam as his daughter."
The 1st respondent also points out that D.W.5, the husband of D.W.2, stated in his evidence that Afteen Tarunam was staying with the petitioner since her birth, which means that the statements of D.Ws. 1, 2, 3 and 4 that on the fortieth day after the birth of the male child on 13-2-1995, there was an exchange of male child for the female child was absolutely false. He also points out as follows:
"D.W.6 one Shaik Moulana stated about the exchange of child. He also stated that since the birth of Afteen Tarunam she was staying with delinquent at Aitipamula. In their panchayat date of birth register will be maintained. Afteen Tarunam was born in Aitipamula to which he belongs. He admitted that in Muslim community there is no custom of adoption or exchange of children. He is member of Panchayat. So the evidence of D.W.6 also shows that the delinquent came forward with a false case of exchange of child."
8. Thus, after a detailed consideration of all aspects of the matter and of the material on record, the 1st respondent, in his order dated 21-4-1997, agreed with the findings of the Enquiry Officer that Afteen Tarunam was the daughter of the petitioner and that he had four children i.e., two daughters and two sons and that by mis-representing that he had only three children, the petitioner claimed and obtained family planning incentive increment. On that basis, after giving further opportunity to the petitioner, he imposed the punishment of compulsory retirement instead of dismissal as proposed in the final show cause notice. We do not see how these findings of the 1st respondent can be interfered with by us in exercise of our jurisdiction under Article 226 of the Constitution. It cannot be said that the findings are not based on any evidence, or that they are perverse and with the material on record it is impossible for any reasonable person to arrive at such conclusion.
9. The learned Counsel for the petitioner, at the end, submitted that the punishment imposed was too severe on the findings against the petitioner. It is not his case that the punishment of compulsory retirement could not be imposed on such findings. Unless the punishment imposed is contrary to law or that it is perverse on the facts of the case or so disproportionate as to shock and shake any reasonable person, it is not open to this Court to interfere with the punishment imposed in exercise of its jurisdiction under Article 226 of the Constitution. This is the law as of now. In D. Suryanarayana Rao v. The State of Andhra Pradesh represented by its Secretary, Panchayat Raj Department, Government of A.P., Hyderabad, 1973 (1) An.W.R. 199, after a review of the case law, a Division Bench of this Court held as follows:
"Thus, the question of penalty is not a justiciable one, or open to review by the Court.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The one charge, i.e., charge No. 4, which has been proved, is sufficient for the imposition of the penalty of dismissal on the petitioner. Since the question of punishment is not justiciable and not open to review by this Court, we arc unable to accept the contention of the learned Counsel for the petitioner and set aside the punishment and direct the Government to reconsider the question of punishment."
Nearly two decades thereafter, another Division Bench of this Court, in the Director, N.R.S.A. Balanagar, Hyderabad and Ors. v. G. Reddappa, 1991 (1) APLJ 243, has held, relying on the Constitution Bench decision of the Supreme Court in State of Orissa v. Bidyabhushan Mohapatra, (1963) 1 Suppl. SCR 648 and a decision of three Judge Bench of the Supreme Court in Union of India v. Paramananda, AIR 1989 SC 11585, that the doctrine of proportionality cannot be relied upon in exercise of the power of this Court under Article 226 of the Constitution, observing as follows:
"For reasons self-evident although vigorously urged by Shri Gangaiah Naidu Counsel for the respondent we are not inclined to go into the question as to what would have been the view of the three judge Bench in Paramananda case if Ranjit Thakur's case and Shiv Shankar Dal Mills case had been noticed and whether proportionality as part of the equality clause enshrined in Article 14 of the Constitution is unavailable to the High Court in exercise of its jurisdiction under Article 226. As the decision in Parmananda case being the latest on the question of the applicability of the doctrine of proportionality there being no other ruling of the Supreme Court handed down by a larger Bench to the contrary we are bound to follow the rule laid down in Parmananda case."
In State of U.P. and Ors. v. Nand Kishore Shukla and Anr., , a two Judge Bench of the Supreme Court held as follows:
"It is settled law that the Court is not a Court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the misconduct proved against him. Its proportionality also cannot be gone into by the Court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the Court would be loath to interfere with that part of the order........"
In State of Punjab and Ors. v. Surjit Singh, Conductor, , the above view has been reiterated once again in unambiguous terms as follows:
"It is an admitted position that the charges have been proved. Once the charges have been proved, it is settled law that the disciplinary authority is empowered to impose appropriate punishment. The rule indicates withholding of payment of arrears of salary as one of the modes of punishment. Under these circumstances, the disciplinary authority has rightly exercised its power. The Civil Court has no jurisdiction to substitute the punishment imposed by the disciplinary authority. The Civil Court is not a Court of appeal in civil suits."
Thus, the Supreme Court has not departed from its earlier view; on the other hand, it reiterated its earlier view.
10 In the circumstances, we do not see how we can interfere with the punishment imposed, on the ground of sympathy to which the learned Counsel for the petitioner appeals.
11. The Writ Petition is, therefore, dismissed. No costs.