Order vs Unknown
2023 Latest Caselaw 218 AP

             HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                         Writ Petition No.27862 of 2007
ORDER:

The petitioner prays for a Writ of Certiorari calling for the records relating to

the Memo No.CGH/HRD/DC/PO-III/F.No.525/06.D.No.15/07 dated 10.01.2007 of

2nd respondent rejecting the representation dated 09.08.2006 of the petitioner and

the proceedings in Memo No.HRD/DC/PO-III/F.42/02/D.No.2103/04 dated

11.11.2004 of 2nd respondent dismissing the appeal dated 29.07.2004 filed by the

petitioner and also the proceedings in Memo No.SE/0/RJY/ADM/U3/D.No.300/04

dated 15.06.2004 of the 3rd respondent directing the petitioner from removal of

service as LDC/Revenue Cashier and to declare the aforesaid proceedings as

illegal, improper, violative of fundamental rights as guaranteed under Articles 14,

16 and 311 of the Constitution of India and contrary to the Service Rules and

Regulations and Government Orders dated 27.10.1977 and M.S.No.98 dated

31.08.2002 and set aside the same and consequently direct the respondents to

reinstate the petitioner into service w.e.f. 15.11.2001 with all back wages and

consequential benefits and to pass such other orders which the Court deems fit.

2. The factual matrix of the case is thus:

(a) The petitioner was working as LDC and looking after the post of

Revenue Cashier at Kothapalli Village under the control of ERO Office,

Pithapuram. On 15.11.2001, the petitioner was suspended by 3 rd respondent on the

allegation that he was involved in misappropriation of corporation funds relating to

the A.C.D. collections and tampering of records, pending disciplinary proceedings.

Apart from the departmental proceedings, the Assistant Accounts Officer, ERO,

Pithapuram gave a complaint to the police of U.Kothapalli Police Station on

09.12.2001 alleging the misappropriation of funds of the Corporation by the

petitioner by falsification of accounts. The S.H.O. registered a case in

Cr.No.72/2001 under Sections 409 & 477(A) of IPC and after investigation filed

charge sheet, which was accepted and registered as C.C.No.247/2002 on the file of

the Judicial First Class Magistrate, Pithapuram. After full-fledged trial, the said

Court acquitted the accused vide judgment dated 19.04.2006.

(b) In the meanwhile, on 04.01.2002, the 3rd respondent appointed the

Divisional Engineer (Enquiries), Visakhapatnam as Enquiry Officer and conducted

the departmental proceedings against the petitioner with regard to the allegation of

misappropriation of funds. Altogether six charges were framed against the

petitioner on 10.05.2002. The petitioner gave reply. The Enquiry Officer being

not satisfied with the reply, conducted departmental enquiry proceedings and gave

a report to the disciplinary authorities opining that all the charges leveled against

the petitioner were proved. Basing on the said enquiry report dated 27.02.2003,

the 3rd respondent issued show cause notice to the petitioner to furnish his

explanation as to why the punishment of removal from service should not be

imposed on him. On 11.12.2003, the petitioner submitted explanation to 3rd

respondent and requested him to withdraw the proposed punishment of "removal

from service". However, the 3rd respondent without considering the explanation of

petitioner, passed the order in a mechanical manner and imposed the punishment of

"removal from service" vide Memo No.SE/O/FJY/ADM/U3/D.No.300/04 dated

15.06.2004. An opportunity to file an appeal was given as per the impugned

dismissal order. The petitioner filed an appeal before 2nd respondent. However,

the 2nd respondent has rejected the appeal by confirming the proceedings of the

Enquiry Officer and the punishment imposed by 3rd respondent. While so, after

passing of the judgment on 19.04.2006 in C.C.No.247/2002 acquitting the

petitioner, he made a representation to 1st respondent to consider his case

sympathetically and to set aside the order of 2nd respondent dated 11.11.2004

dismissing him from the service and to reinstate him with back wages. However,

the 1st respondent vide Memo No.CGM/HRD/DC/PO-III/F.No.525/06.D.No.15/07

dated 10.01.2007 rejected the representation of petitioner dated 09.08.2006 on the

ground that the petitioner was acquitted in criminal case only due to benefit of

doubt and the said acquittal order would not give any advantage to the petitioner.

Hence, the writ petition.

3. The 3rd respondent filed counter and opposed the writ petition inter alia

contending thus:

(a) The petitioner worked as LDC/Revenue Cashier of U.Kothapalli and was

under the control of ERO/Pithapuram and he was suspended on the ground of

misappropriation of department funds relating to A.C.D. collection and tampering

of records. After thorough verification of the relevant records, a complaint was

lodged before the S.H.O, U Kothapalli alleging that the petitioner has not remitted

the department's money which was collected from the consumers. The case was

investigated and charge sheet was filed and concerned C.C.No.247/2002 was

ended in acquittal as per the judgment dated 19.04.2006 on benefit of doubt. In the

meanwhile, after the departmental enquiry, the petitioner was removed from

service based on the report of the Enquiry Officer.

(b) The enquiry was conducted for six charges after receiving the reply from

the petitioner. It is not true to say that the explanation of the petitioner to the show

cause notice was not considered and order passed in a mechanical manner. On the

other hand, the Enquiry Officer has conducted a detailed enquiry in respect of six

charges and ultimately held that the charges were proved and basing on the said

report, the petitioner was removed from service. The petitioner was given

reasonable opportunity in the enquiry to defend his case. The petitioner preferred

an appeal and the Appellate Authority also, after examining the entire case,

rejected the appeal by confirming the punishment imposed by 3 rd respondent

basing on the enquiry report.

(c) The judgment in C.C.No.247/2002 has no bearing upon the punishment

imposed by 3rd respondent since the petitioner was acquitted on extending the

principle of benefit of doubt.

(d) The petitioner used to attend the work of collection of revenue pertains to

current consumption charges and additional consumption deposits of various

consumers of A.P.E.P.D.C. Limited. It is expected that every employee of the

company to work with devotion and honesty. He should remit the amounts so

collected on the same day in the prescribed banks or handover the cash in the

concerned electricity revenue office and should furnish the evidence of such

remittance invariably. However, the petitioner failed to do so, meaning thereby he

worked dishonestly.

(e) The representation dated 09.08.2006 submitted by the petitioner was

rejected after thorough examination of the case in accordance with law as there

was no provision or no need to review the disciplinary case which was closed by

following the rules and procedure governing the department. Hence, the petitioner

cannot term the said rejection as violation of fundamental rights.

(f) Above all, the petitioner himself has admitted his financial irregularities

and to that effect, he has given written statement on 12.06.2002 to the Enquiry

Officer giving his consent to pay the loss sustained by the A.P.E.P.D.C. Limited

and he also paid all the amounts, which were misappropriated by him,

subsequently. An amount of Rs.77,820/- relating to service No.907/94 of K.P.Peta

was paid by his wife Y. Subadra Devi on 31.12.2001 on behalf of the petitioner

towards A.C.D. charges collected on 23.07.2001, but not remitted to A.P.E.P.D.C.

Limited. Besides, the petitioner is negligent in performing duties. As per the

statement of Sri G.T.V. Prasada Rao of Manikanta Hatcheries, Konapapa Peta, an

amount of Rs.41,720/- was paid on 20.07.2001, but the petitioner has not issued

receipt but only acknowledged the receipt of the amount by duly noting the

B.C.R.C. No. on the backside of the A.C.D. notice. All the amounts were paid

only after noticing the cash embezzlement and during the course of enquiry. It is

therefore evident that the petitioner has misappropriated the funds and tampered

the records. There are no merits in the petitioner's case and hence, the writ petition

may be dismissed.

4. Heard arguments of Sri Kona N.D.V. Ramana Rao, learned counsel for

petitioner, and Sri Metta Chandrasekhar Rao, learned Standing Counsel for the

respondents.

5. While severely fulminating the dismissal order and confirmation in the

appeal as well as rejection of the representation of the petitioner, learned counsel

for the petitioner would argue that subsequent to removal of the petitioner from

service, the criminal case in C.C.No.247/2002 which was foisted against him on

the same allegation of misappropriation was ended in acquittal after the full-

fledged trial. Therefore, the petitioner submitted a representation to the respondent

authorities to consider his case and reinstate him into service. However, without

considering the same his representation was unduly rejected. Learned counsel

would further submit that pending the departmental enquiry, the petitioner in order

to prove his bonafides deposited the amounts which were collected and unremitted

by him on account of the busy and heavy work. The authorities should have

considered the said aspect in a right perspective and ought to have reinstated him

into service. In this regard, he placed reliance on the judgment dated 18.08.2010 in

W.P.No.6394/2003.

6. Per contra, learned Standing Counsel for 2nd respondent Sri Metta

Chandrasekhar Rao while opposing the writ petition submitted that the acquittal in

criminal case was not honourable acquittal, but the benefit of doubt was accorded

to him for the reason that there was no sufficient evidence to show that the

consumer paid the amount to the petitioner and the receipt issued to the consumer

bears the signature of the petitioner. Learned Standing Counsel would thus argue

that the petitioner cannot place reliance on the acquittal in criminal case.

Moreover, the criminal case relates to the embezzlement in respect of only one

consumer for Rs.77,820/-. On the other hand, the departmental enquiry was

conducted for different amounts and other types of misconduct of the petitioner

covered by six charges. All the charges were duly proved and the appeal filed by

the petitioner was also rejected. Hence, the petitioner cannot seek for any leniency

or mercy from the department. He would further submit that this Court will not

judge the correctness of the departmental enquiry proceedings as an appellate

Court. It is only when the petitioner was deprived of principles of natural justice

or if there was procedural violation during the enquiry, can this Court exercise its

power of judicial review. Since there was neither procedural violation nor

violation of principles of natural justice, the writ petition is not sustainable.

7. The points for consideration are:

(i) Whether the Enquiry Report dated 27.02.2003 suffers the vices of any procedural defects and violation of principles of natural justice or perverse findings without there being any plausible evidence to set aside the charges leveled against the petitioner?

(ii) Whether the acquittal of the petitioner in C.C.No.247/2002 has any relevancy to reconsider the punishment imposed against the petitioner?

(iii) To what relief?

8. The scope and ambit of judicial review over the departmental enquiries is no

more res integra.

(i) In Kuldeep Singh v. Commissioner of Police and others1 Hon'ble

Apex Court has vividly expounded the circumstances when judicial review can be

exercised over the departmental enquiries. It observed thus:

"6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. 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 dictates of the superior authority.

7. In Nand Kishore Prasad v. State of Bihar [(1978) 3 SCC 366 : 1978 SCC (L&S) 458 : AIR 1978 SC 1277 : (1978) 3 SCR 708] it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in

(1999) 2 SCC 10

domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the enquiry officer would be perverse.

8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao [(1964) 2 LLJ 150 : AIR 1963 SC 1723 : (1964) 3 SCR 25] in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain [(1969) 2 LLJ 377 : AIR 1969 SC 983] and Bharat Iron Works v. Bhagubhai Balubhai Patel [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 : 1976 Lab IC 4 : AIR 1976 SC 98 : (1976) 2 SCR 280] . In Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 : (1985) 1 SCR 866] it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny."

(ii) In Union of India v. P. Gunasekaran2 the Hon'ble Apex Court

observed thus:

"12. xxx. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence."

(iii) In Union of India v. Sitaram Mishra3, the Hon'ble Apex Court held

thus:

(2015) 2 SCC 610

(2019) 20 SCC 588

"10. xxx. The issue, in the exercise of judicial review against a finding of misconduct in a disciplinary enquiry, is whether the finding is sustainable with reference to some evidence one the record. The High Court can, it is well-settled, interfere only in a situation where the finding is based on no evidence. In such a situation, the finding is rendered perverse."

(iv) In Uttarakhand Transport Corporation v. Heera Singh Parihar4,

the Hon'ble Apex Court observed thus:

"4. At the outset, it may be noted that the High Court applied the wrong test in exercising its power of judicial review with reference to disciplinary proceedings. Disciplinary proceedings are not quasi-criminal in nature. A disciplinary inquiry is conducted by the employer to inquire into a charge or misconduct pertaining to a breach of the rules and regulations governing the service of the employer. The standard of proof is not that governed by a criminal trial. In exercising judicial review the test is whether the findings are based on some evidence. The High Court may interfere with only a case where there is no evidence to sustain the charge of misconduct."

(v) In State of Karnataka v. Umesh5, the Hon'ble Apex Court observed thus:

"22. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the

(2020) 20 SCC 677 = 2019 SCC OnLine SC 1745

(2022) 6 SCC 563

evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:

(i) the rules of natural justice have been complied with;

(ii) the finding of misconduct is based on some evidence;

(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity; and

(v) the penalty is disproportionate to the proven misconduct."

(vi) In Lalit Popli v. Canara Bank6 cited by respondent, the Hon'ble

Apex Court expressed similar view.

Thus, the above jurisprudence relating to the scope of judicial review over

departmental enquiries gives us an understanding that this Court while exercising

plenary power in writ jurisdiction will not sit as Appellate Court to decide the

correctness of the department proceedings and disciplinary enquiries. Rather, its

jurisdiction is confined to verify whether the rules of natural justice have been

complied with during the enquiry; whether the findings of the misconduct arrived

at by the Enquiry Officer was based on some acceptable evidence or it suffered

vices of perversity and fraught with conjunctures without there being any evidence

in real terms; whether statutory rules governing conduct of the disciplinary enquiry

(2003) 3 SCC 583

have been properly followed and whether the punishment was imposed in

accordance with the doctrine of proportionality. It is only when the answer to the

above aspects is totally negative, would there be a scope for judicial review

otherwise not.

9. In the light of the above jurisprudence, when the record is perused, it is not a

case of violation of principles of natural justice or violation of rules covering the

departmental enquiries that was pleaded by the petitioner. The record shows that

the petitioner was given a due opportunity and he participated in the enquiry and

ultimately, the Enquiry Officer having regard to the evidence on record come to

the conclusion that the charges against the petitioner were established. In fact, the

petitioner has paid the amounts mentioned in the charges. In these circumstances,

the enquiry report cannot be said to have suffered any vices. Added to it, the main

thrust of the argument of the petitioner is that subsequent to the dismissal of his

appeal and removal from service, the Judicial First Class Magistrate, Pithapuram

acquitted him of the charges in C.C.No.247/2002 and in that view, his

representation to consider his case in the light of the judgment in criminal case

should have been considered sympathetically by the respondent authorities. The

impact of the judgment in criminal case will be discussed in the point infra.

However, so far as Point No.1 is concerned, the enquiry report suffered no vices.

10. Point No.2 : The judgment in C.C.No.247/2002 on the file of the Judicial

First Class Magistrate, Pithapuram would show that it relates to the embezzlement

of consumption charges of Rs.77,820/- relating to Sri Rama Hatcheries, Konapapa

Peta by the petitioner. Thus, as rightly argued by the learned Standing Counsel for

respondents, the criminal case relates to only one of the several misdeeds of the

petitioner, whereas the departmental enquiry relates to different misdeeds. Be that

as it my, the accusation in the criminal case is that the petitioner, who was working

as Revenue Cashier in A.P. TRANSCO of U.Kothapalli, while discharging his

duties, collected Rs.77,820/- from PW1 on 23.07.1999 towards consumption

charges of Sri Rama Hatcheries, Konapapa Peta and issued a receipt bearing

No.135647, but did not enter the bill amount in the bill collector remittance and

delayed the same with a view to grab the amount. It is further alleged that he did

not deposit the amount in Andhra Bank account of A.P. TRANSCO or in the

E.R.O. office. He also altered duplicate receipt No.135647 to 135648 with a view

to create documentary evidence. He was thus charge sheeted as having

misappropriated the amount of Rs.77,820/-. The trial Court observed that there

was no direct evidence to show that the consumption charges were directly paid to

the accused (petitioner) and that he issued Ex.P2 receipt and further, the

prosecution has not taken steps to send Ex.P2 receipt to the Handwriting expert for

comparison of the signatures found on Ex.P2 with the signature of the accused.

The trial Court ultimately held the petitioner deserves benefit of doubt and

accordingly, acquitted him. As rightly argued by the learned Standing Counsel for

respondents, the criminal case relates to only one instance of embezzlement by the

petitioner, whereas the departmental enquiry relates to different instances. Further,

the criminal case ended in acquittal on extending benefit of doubt. On the other

hand, in the departmental enquiry, basing on the evidence, the petitioner was found

guilty of misconduct. In fact, whatever be the reason, the petitioner has deposited

the defalcated amounts pending enquiry. Therefore, the criminal case and

departmental enquiry cannot be viewed and weighed in identical terms. Further,

the proceedings in a criminal case and in departmental enquiries are distinct in

nature. While the preponderance of probabilities and some plausible evidence is

sufficient to determine the guilt of the delinquent in a departmental enquiry,

whereas the proof of the guilt to the hilt is must in the criminal proceedings. This

subtle variation between the two proceedings is no more res integra.

(i) In Samar Bahadur Singh v. State of Uttar Pradesh7 the Hon'ble

Apex Court observed thus:

"7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt

(2011) 9 SCC 94

whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit."

(ii) In Union of India v. Sitaram Mishra's case (3 supra) the Hon'ble

Apex Court reiterated as follows:

"13. The second ground, which has weighed with the High Court, is equally specious. A disciplinary enquiry is governed by a different standard of proof than that which applies to a criminal case. In a criminal trial, the burden lies on the prosecution to establish the charge beyond reasonable doubt. The purpose of a disciplinary enquiry is to enable the employer to determine as to whether an employee has committed a breach of the service rules."

(iii) In Maharashtra State Road Transport Corporation v. Dilip Uttam

Jayabhay8 the Apex Court held thus:

"11.4. xxx. As per the cardinal principle of law an acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standards of proof in both the cases are different and the proceedings operate in different fields and with different objectives."

Thus the law is that since the criminal proceedings and departmental enquiry

operate in two different spheres and whereas strict proof of guilt is essential in

criminal cases whereas preponderance of probabilities is sufficient in departmental

(2022) 2 SCC 696

proceedings, the acquittal in criminal proceedings cannot be pitted against the

departmental proceedings. In Nelson Motis v. Union of India9 cited by the

respondent, similar view was expressed by the Hon'ble Apex Court.

11. Therefore, from mere acquittal in criminal case the petitioner cannot derive

any advantage that too in the factual background concerning to this Court. The

decision in Varahagiri Mangaiah (W.P.No.6394/2003 supra) relied upon by the

petitioner can be distinguished on facts. In that case, the petitioner, who was

working in the office of Electricity Revenue Office, Amalapuram was placed under

suspension on the ground that he was misappropriated Rs.20,057/- having

collected from the consumer and not deposited with the Accounts Section. The

Enquiry Officer after conducting enquiry came to conclusion that non-remittal and

issuing of PR were an irregularity and there was no motive on the part of the

petitioner to cheat the management and he issued receipt to the party under forced

circumstances as explained by him. The Enquiry Officer further noted that on

28.01.1998 itself, the entire amount of Rs.20,057/- was made good by the

petitioner. In spite of the said enquiry report, the disciplinary authority passed an

order removing the petitioner from service w.e.f. 20.06.2000. The petitioner's

appeal met with the fate of dismissal. He filed an Industrial Dispute case and the

same was also dismissed. Hence, he filed writ petition questioning the correctness

(1992) 4 SCC 711

of the award in Industrial Dispute. In that context, the learned Judge of the High

Court of A.P. taking into consideration that the Enquiry Officer found petitioner

not guilty of the charges leveled against him and that he issued PR for the amount

of Rs.20,057/- under coercion and that he already deposited the amount and

thereby, the management not suffered any loss, held that the punishment of

removal from service was shockingly disproportionate, improper and the

management ought to have taken the lenient view. Accordingly, the learned Judge

set aside the punishment and directed the respondent management to reinstate the

petitioner into service with continuity of service but without back wages. It is

needless to emphasize, the judgment was rendered in a different context. This has

no application to the present case on hand.

12. Thus, on a conspectus of the facts and law, I find no merits in the

petitioner's case and accordingly, the Writ Petition is dismissed. No costs.

__________________________ U. DURGA PRASAD RAO, J 19 .01.2023 MVA

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

Writ Petition No.27862 of 2007

19th January, 2023

Krk/mva