Andhra HC (Pre-Telangana)
V. Rajamallaiah vs High Court Of A.P. And Another on 12 April, 2001
Equivalent citations: 2001(3)ALD625, 2001(5)ALT228
ORDER
S.R. Nayak, J
1. In this writ petition, the petitioner, who was serving at the relevant point of time as Deputy Nazir in the Court of the Special Judicial First Class Magistrate (Excise), Karimnagar, has assailed the validity of the disciplinary action taken by the 2nd respondent, the District and Sessions Judge, Karimnagar, dated 1-8-1996 and order of the 1st respondent - High Court of Andhra Pradesh, confirming the above order of the learned District and Sessions Judge.
2. Few relevant facts for the purpose of deciding this writ petition are to be noted briefly as under:
The petitioner while working as Deputy Nazir in the above Court was kept under suspension by order dated 27-12-1995 and subsequently the learned District and Sessions Judge, the disciplinary authority, appointed the Additional Munsif Magistrate, Karimnagar as Enquiry Officer to hold a regular departmental enquiry after framing the charges. Accordingly, the Enquiry Officer framed a charge on 4-3-1996, which is as follows:-
"Charge .--That you Sri V. Raja Mallaiah, working as Deputy Nazir, Court of Munsif Magistrate, Manthani (Now under suspension) have failed to submit entire case properties in SC No.644 of 1994, on the file of the Court of Sessions, Karimnagar concerned in PRC No.36 of 1994, on the file of the Court of the JMFC, Manthani, by submitting only one item through Lr Dis. No.3047, dated 22-12-1995 and failed to submit other three items though they were received and entered in Crl. Reg. No.15 of 1994 at SI. No. 129 of 1994 as item Nos.1 to 3 by the JMFC, Manthani. You were also warned to be careful in future in proceedings in Dis.No.6634 of PR.72/ADM/DCK/95, dated 31-7-1995,, when the case property was not submitted in SC No.785 of 1994. Again for the second time when you failed to submit the case property in SC No.751 of 1994 by 21-8-1995, an amount of Rs.100/-was ordered to be deducted from you salary and the same was deducted from your salary in proceedings in Dis. No.7276/PR.93/ADM/DCK/95, dated 25-8-1995. On these two occasions it had no desired effect on you.
You are hereby directed to show-cauas to why suitable disciplinary action should not be taken against you on the above said charge.
You are hereby required to put in any written statement you may desire to submit in your defence by 11-3-1996. You are being furnished herewith the questionnaire in Form No. 1 to be filled and re-submitted by 11-3-1996, in case, if you failed to put in your written statement by 11-3-1996, the enquiry will be proceeded with on the basis of that you have no defence to offer."
3. The Enquiry Officer on consideration of the evidence adduced in the course of enquiry recorded the finding that the charge framed against the petitioner was proved. Accordingly, he submitted his report to the learned District and Sessions Judge. The learned District and Sessions Judge, on re-appreciation of the evidence and 'after due application of mind, passed the impugned order dated 1-8-1996, imposing the penalty of denial of one increment with cumulative effect and treating the suspension period of the petitioner as not on duty. Being aggrieved by the order of the learned District and Sessions Judge dated 1-8-1996 the petitioner preferred an appeal to the High Court of Andhra Pradesh on administration side. The High Court by its order dated 16-7-1997 dismissed the appeal. Hence this writ petition assailing the orders of the District and Sessions Judge as well as the High Court.
4. Sri T. Suryakaran Reddy, learned Counsel for the petitioner assailing the impugned orders, firstly, would contend that admittedly the enquiry was conducted by the Enquiry Officer by framing charge in terms of the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963 (hereinafter referred to as '1963 Rules'), which were repealed by the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereinafter referred to as '1991 Rules') with effect from 1-10-1992 and when the charge was framed against the petitioner, 1991 Rules were holding the field and therefore the very enquiry conducted by the Enquiry Officer is vitiated on account of the infraction of the rules.
5. Secondly, the learned Counsel for the petitioner would contend that under 1991 Rules the delinquent-employees are provided with more favourable procedure in terms of making representations in the course of enquiry at three stages, to be specific under Rules 20(4), 20(16) and 21(4) whereas there were only two opportunities available to the delinquent-employees under the defunct 1963 Rules. The learned Counsel would also point out that under 1963 Rules the disciplinary authority was entitled to appoint Enquiry Officer even to frame charges and conduct enquiry; whereas under 1991 Rules, the disciplinary authority himself is required to frame charges.
6. Thirdly, the learned Counsel would contend that in the enquiry conducted by the Enquiry Officer, the Enquiry Officer first examined the petitioner and later examined the witnesses produced by the disciplinary authority and this procedure is not in consonance with the well established procedure in a departmental enquiry and also regulations governing the departmental enquiry. The learned Counsel would also point out that the petitioner was not supplied with the list of witnesses examined by the disciplinary authority before they were examined in the course of enquiry.
7. On the other hand, Sri Nagarjuna Reddy, learned Standing Counsel for the respondents, would point out that there is absolutely no evidence led before the Court to show that on account of the irregularities pointed out in the procedure, the petitioner has suffered any prejudice, warranting interference by this Court, and the grounds urged are essentially technical in nature and the petitioner was not subjected to any injustice on account of the fact that the enquiry was conducted by the Enquiry Officer under the provisions of 1963 Rules.
8. The penalty of withholding of one annual increment with cumulative effect was imposed on the petitioner as a disciplinary measure. It is now well settled by the pronouncement of the Supreme Court in Kulwant Singh Gill v. State of Punjab, 1991 Suppl (1) SCC 504 = 1990 (6) SLR 73, that denial of increment with cumulative effect should be treated as a major penalty. The procedure to be followed under 1963 Rules was prescribed under Rule 19(2) of the said rules; whereas under 1991 Rules the relevant rule is Rule 20.
Rule 19(2) of 1963 Rules reads as follows:
Rule 19 (2) : (a) Without prejudice to the provisions of the Public Servants' Inquiries Act, 1850 in every case where it is proposed to impose on a member of a service any of the penalties, specified in items (iv), (vi), (vii) and (viii) in Rule 8, the authority competent to impose the penalty shall appoint an enquiry Officer, who shall be superior in rank to the person on whom it is proposed to impose the penalty or shall itself hold an inquiry either suo moto on a direction from a higher authority. In every such case the grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders in the case. He shall be required, within a reasonable time, to file a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both.
The person charged may, for the purpose of preparing his defence, be permitted to inspect, and take extracts from, such official records as he may specify, provided that the Inquiry Officer may, for reasons to be recorded in writing, refuse such permission, if, in his opinion, such records are not relevant for the purpose of its is against public interest to allow access thereto. On receipt of the statement of defence within the specified time or such further time as may have been given, an oral inquiry shall be held if such an inquiry is desired by the person charged or is decided upon by the Inquiry Officer or is directed by the competent authority.
At the inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the persons charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the Enquiry Officer may, for special and sufficient reason to be recorded in wiring, refuse to file, call a witness. In the case where disciplinary action is initiated on the report of Anti-Corruption Bureau, the Enquiry Officer may allow the concerned Investigation Officer to adduce evidence, the examine the witnesses and to cross-examine the defence witnesses with a view to proving the charges. After the oral inquiry is completed, the persons charged shall be, entitled to file, if he so desires, any further written statement of his defence. If no oral inquiry is held and the person charged desires to be heard in person, a personal hearing shall be given to him.
The Inquiry Officer shall, on completion of the inquiry or the personal hearing of the person charged or both, forward the proceedings of the inquiry to the authority competent to impose the penalty unless he is himself such an officer. The proceedings shall contain the charges framed against the person charged along with the grounds of charge, written statement filed in defence, if any, a sufficient record of the evidence adduced during the oral inquiry, a memorandum of the point urged by the person charged during the personal hearing, if any, and a statement of the findings of the Inquiry Officer on the different charges and the grounds therefor:
Provided.....
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(b) Except under very special circumstances to be recorded in writing by the Inquiry Officer or any officer to whom an appeal may be preferred, no pleader or agent shall be allowed to appear either on behalf of the Government or on behalf of the person charged before the Inquiry Officer:
Provided .....
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(c) Where it is proposed, after an inquiry, to impose on the person charged any penalty of (1) reduction to lower rank in the seniority list or a lower post or to lower stage in a time scale, (2) compulsory retirement, (3) removal from service or (4) dismissal from service, such penalty may be imposed on the basis of the evidence adduced during the inquiry after furnishing a copy of the Enquiry Officer's report to the person charged and after taking into consideration any representation made by him thereto within a reasonable time ordinarily not exceeding one month. However, it shall not be necessary to give to the persons charged any opportunity of making representation on the penalty proposed to be imposed:
Provided.....
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(d) The authority imposing any penalty under the rules shall maintain a record showing -
(i) the allegations upon which action was taken against the person punished;
(ii) the charges framed, if any;
(iii) the person's representation, if any, and the evidence taken, if any; and
(iv) the findings and the grounds thereof, if any.
(e) Every order imposing the penalty shall state the grounds on which it is passed.
(f) An order of suspension made on a member of a service and every order imposing on him any penalty, under these rules shall,--
(i) if he is on duty, be served on him by delivering or tendering it in person;
(ii) if he is on leave or under suspension or otherwise absent be communicated to him by registered post to the address given by him if any, or of his usual place of residence;
(iii) if it cannot be so served or communicated, be published in the Andhra Pradesh Gazette.
Sub-rules (4) and (16) of Rule 20 of 1991 Rules reads as follows:
(4): The disciplinary authority shall deliver or cause to be delivered by the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(16) When the case for the disciplinary authority is closed, the Government Servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government Servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presiding Officer, if any, appointed.
Sub-rule (4) of Rule 21 of 1991 Rules reads as follows:
"If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clauses (vi) to (ix) of Rule 9 should be imposed on the Government Servant, it shall make an order after furnishing a copy of the report of the inquiry authority to the Government Servant and after taking into consideration any representation made by him thereto within a reasonable time ordinarily not exceeding one month. It shall not be necessary to give the Government Servant any opportunity of making representation on the penalty proposed to be imposed :
Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government Servant."
9. We have compared Rule 19(2) of 1963 Rules with the sub-rules (4) and (16) of Rule 20 and sub-rule (4) of Rule 21 of 1991 Rules. We are of the considered opinion that in terms of fair procedure contemplated in both the rules, we do not find any substantive difference. The only limited departure is that in 1963 Rules the delinquent employee was required to state his defence, if any, after conclusion of the enquiry; whereas under sub-rule (16) of Rule 20 of 1991 Rules, that opportunity is given to the delinquent immediately after the case for the disciplinary authority is closed. We are at a loss to understand how this departure in procedure operated against the petitioner and resulted in any prejudice to him. Be that as it may it is not the case of the petitioner-delinquent at all that on account of this departure, he has suffered any prejudice. It is well settled by the judgment of the Supreme Court in S.B. Noronah v. Prem Kumari, , that-
"The parties should win or lose on substantial questions, not technical tortures and Courts cannot be abettors.....To maintain integrity of law, the Court must 'suit the action to the word, the word to the action".
10. Since the petitioner has not pleaded any prejudice on account of the departure of the procedure, the impugned action cannot be set at naught only on a technical ground.
11. The second contention is also too much technical in nature. It is true that under 1963 Rules, a disciplinary authority could appoint an Enquiry Officer to conduct a departmental enquiry against a delinquent and authorise him to frame charges also*; whereas in 1991 Rules, the disciplinary authority himself is required to frame the charges. This departure in the procedure in no way affect any of the rights of a delinquent employee. Whether the charges are framed by the disciplinary authority himself or the same are framed by the Enquiry Officer appointed by him, in our considered opinion, it would not make any difference as regards fairness to be extended to the delinquent employee in terms of procedure. The crux of the matter is that the charge has to be proved satisfactorily-by substantive legal evidence by the disciplinary authority. Simply because the charge was framed by the Enquiry Officer, that itself would not vitiate the enquiry conducted by the Enquiry Officer or the findings recorded by him.
12. Coming to the third contention of the learned Counsel for the petitioner, it is true that ordinarily the disciplinary authority should examine its witnesses first in support of the charge. In the instant case, it is admitted that the Enquiry Officer examined the delinquent-petitioner in the first instance. It is also alleged that no list of witnesses of the disciplinary authority was furnished to the petitioner before they were produced before the Enquiry Officer for examination. As quite often said and reiterated by the Courts, procedure is hand-made of justice and it is essentially meant to advance justice. It is not the case of the petitioner that on account of this departure in the procedure, the petitioner could not effectively cross-examine the witnesses produced on behalf of the disciplinary authority. If that was the case, he ought to have made grievance then and there only. Records do not disclose that the petitioner made complaint to the Enquiry Officer in that regard or before the Disciplinary Authority or before the High Court on administrative side. Though the fact of the Enquiry Officer examining the petitioner in the first instance was stated in the Memorandum of Appeal before the High Court, no prejudice on that count was pleaded in the Memorandum of Appeal. A Division Bench of this Court consisting one of us (SRN, J) in Bankatlal Satyanarayana Parikh and Co. v. Commissioner of Commercial Taxes, (DB), observed as follows:
"The dialectics of the audi alteram partem rule has, in contemporaneous administrative law, evolved dynamically. The means-based technical view has been eschewed in favour of the holistic and effect-analysis model. Violation of natural justice is by itself, no longer sufficient to invalidate State action. A clear prejudice that has been suffered by the violation needs to be pleaded and demonstrated. This is the current and operative doctrine-vide S.L. Kapoor v. Jagmohan ; K.L. Tripathi v. S.B.I ; Rajender Singh v. State of Madhya Pradesh ; MC v. Union of India [(1996) 6 SCC 237] and Aligarh Muslim University v. Mansoor Alt Khan ."
13. Before concluding, the other submission of the learned Counsel would be noted. The learned Counsel would submit that the finding recorded by the Enquiry Officer and accepted by the disciplinary authority, the District and Sessions Judge is unsustainable in the sense that it is not based on any substantive evidence. Here again, suffice it to state that white reviewing disciplinary action and particularly the finding recorded in the enquiry, this Court cannot act as an appellate authority. The only thing to be seen is whether the finding recorded by the Enquiry Officer and accepted by the disciplinary authority is based on some legally permissible evidence. It is not permissible for this Court to go into the question whether the finding is based on sufficient and adequate evidence. We are satisfied that the finding recorded by the Enquiry Officer and accepted by the disciplinary authority about the guilt of the petitioner is based on legally permissible evidence.
14. In the result and for the foregoing reasons, the writ petition is dismissed. No costs.