Telangana High Court
P.V. Suryanarayana vs The High Court Of Judicature For The ... on 10 September, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
*THE HON'BLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
+WRIT PETITION No.7517 of 2018
% 10-09-2024
#P.V. Suryanarayana ...Petitioner
vs.
$ The High Court of Judicature for the State of
Telangana and the State of Andhra Pradesh, rep.
by its Registrar General, Hyderabad and Others
... Respondents
!Counsel for the Petitioners: Sri D.V. Sitharam Murthy, Senior Counsel
representing Sri Umashankar Nemmikanti
^Counsel for Respondents 1 to 3: Sri Y.Rama Rao, Standing Counsel for
High Court
^Counsel for Respondents 4 & 5: G.P. For Finance Planning
<Gist :
>Head Note :
? Cases referred
1. 1963 SCC OnLine SC 16
2. (2011) 6 SCC 376
3. (2013) 4 SCC 301
4. (2009) 2 SCC 570
5. AIR 1963 SC 1723
6. (1975) 2 SCC 557
7. 1999 (1) SCC 759
8. 2007 (7) SCC 236
9. 2009 (8) SCC 310
10. 2017 (2) SCC 308
11. 2020 (3) SCC 423
12. 2020 (9) SCC 471
13. 1985 (3) SCC 378
14. AIR 1957 SC 07
15. (2006) 5 SCC 88
16. 1978 SCR (3) 708
17. 2009 (2) SCC 570
18. 2002 SCC OnLine MP 407
19. (2006) 1 SCC 479
20. (2005) 2 SCC 363
21. (2013) 10 SCC 324
2
SP, J & RRN, J
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IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
Writ Petition No.7517 OF 2018
(Per Hon'ble Sri Justice Sujoy Paul)
Between:
P.V. Suryanarayana
...Petitioner
vs.
The High Court of Judicature for the State of
Telangana and the State of Andhra Pradesh, rep.
by its Registrar General, Hyderabad and Others
... Respondents
JUDGMENT PRONOUNCED ON: 10.09.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
SP, J & RRN, J
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THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
WRIT PETITION No.7517 of 2018
ORDER:
(Per Hon'ble Justice Sujoy Paul)
This petition filed under Article 226 of the Constitution
challenges the order dated 12.09.2016, whereby punishment of
removal from service was inflicted on the petitioner. The challenge
is also made to the order dated 18.11.2017, whereby the review
application preferred by the petitioner was dismissed.
Factual Matrix:
2. Draped in brevity, the relevant facts for adjudication of this
matter are that the petitioner joined the service in judicial
department at Vizianagaram District on 26.09.1982. The
petitioner was selected as Court Master and Personal Secretary to
the Judges in the High Court on 17.02.1995. From the month of
May, 1995, the petitioner was attached with the office of Judges of
High Court. However, from 17.05.1999, he was attached as
Personal Secretary to another Judge, who was portfolio Judge of
Vishakapatnam District. In the month of May, 2011, the
petitioner was promoted as Assistant Registrar, but under the
direction of the said Judge, he continued to perform his duties as
Personal Secretary.
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3. The case of the petitioner is that under the direction of the
portfolio Judge of Vishakapatnam District, he went to
Vishakapatnam District Court and handed over a pen-drive in a
sealed cover containing question papers and answer key of written
examination for the posts of junior assistant, field assistant, typist
and stenographer.
4. The written examinations for the said posts were conducted
on 22.10.2011 and 23.10.2011. The petitioner being the Personal
Secretary to the portfolio Judge accompanied him on 22.10.2011
and 23.10.2011 to Vishakapatnam. On 23.10.2011 at around
07:00 PM, the Central Nazir and Computer Operator of the
Vishakapatnam District Court telephoned and informed the
petitioner that they are unable to open the answer key and upon
the directions of the learned District Judge requested the
petitioner to come to the District Court. The petitioner went to the
District Court after securing laptop of his nephew's son and
converted the answer key from Microsoft Office 2010 version to
Microsoft Office 2003 version, which was available in the District
Court's computers.
5. The results of the said written examinations were declared in
the month of December, 2011. In January, 2012, personal
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interviews were conducted. After lapse of 5½ months, on
31.03.2012, the District Judge appears to have made a complaint
to the High Court that he had suspicion that the petitioner had
leaked out the question papers of written examination, which were
held on 22.10.2011 and 23.10.2011.
6. The charge sheet dated 19.07.2013 containing seven charges
was served on the petitioner after a lapse of two years. The
petitioner filed his reply on 16.09.2013. The Disciplinary
Authority was dissatisfied with the said reply and appointed an
Enquiry Officer. The Enquiry Officer after recording the evidence
submitted his report running into 90 pages. The said report was
supplied to the petitioner along with the show-cause notice. In
turn, the petitioner filed his written representation against the
report of the Enquiry Officer. The Disciplinary Authority by the
impugned order dated 12.09.2016 imposed the punishment of
removal from service, which was unsuccessfully assailed by the
petitioner by filing a review application.
Contentions of the petitioner:
7. Sri D.V. Sitharam Murthy, learned Senior Counsel for the
petitioner, referred Rule 17(2) of the Andhra Pradesh High Court
Service Rules, 1975 (for short, Rules of 1975) whereby the
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procedure prescribed in Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991 (for short, CCA
Rules) were borrowed for the purpose of conducting departmental
enquiry. Learned Senior Counsel has taken pains to contend that
procedural part of the Departmental Enquiry was not in
consonance with the principles of natural justice and the CCA
Rules. As per Rule 20 (12)(a) of CCA Rules, after the case of
Disciplinary Authority is closed, the delinquent employee gets an
opportunity to set his defence orally or in writing. It is pointed out
that the case of Disciplinary Authority was closed on 09.04.2015.
Thereafter, the Departmental Enquiry was straightaway posted for
arguments without enquiring from the petitioner as to whether he
intends to examine the witnesses. Thus, the petitioner was
deprived to examine the witnesses in his defence.
8. The next procedural infirmity as per the petitioner is that
Rule 20 (14) of CCA Rules mandates that after Government
servant closes his case, the Enquiring Authority shall generally
question him on the circumstances appearing against him. The
petitioner did not examine himself and in that event it was
imperative on the part of the Enquiry Officer to question him
generally which has not been done. Another defect is that written
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argument/brief of Presenting Officer was not furnished to the
petitioner to enable him to put forth his comments.
9. The Enquiry Officer's Report was criticized by contending
that in the Departmental Enquiry, the burden to prove the
charges is always on the shoulders of the prosecution. In the
instant case, the learned Enquiry Officer has shifted the burden
on the delinquent employee. Much emphasis is laid on the finding
at page No.24 of the Enquiry Report that 'the charged officer
himself being the Typist of the question papers has to clear the air
of suspicion by his own conduct and not on omissions found in
the evidence of the witnesses presented before the Enquiry
Officer'.
10. The learned Senior Counsel for the petitioner submits that
all the charges are arising out of the same incident and are
interconnected. Four charges viz., charge Nos.3, 4, 5 and 7 relate
to leakage of question papers were not found proved by the
Enquiry Officer and only charge Nos.1, 2 and 6 were held to be
proved. It is strenuously contended that in a case of this nature
where charges were relating to leakage of question papers by the
petitioner, the ambit and scope of the enquiry should be (i) was
there any leakage of question paper and (ii) if yes, who was
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responsible for such leakage. Interestingly, charge Nos.3, 4, 5 and
7 which were related to leakage of question papers were held to be
not proved, yet second part about responsibility to leak it was held
to be proved. The respondents have completely failed to see that
the second part of allegation as to who was responsible for leakage
was not independent but rather dependent on the first part i.e.,
whether question papers were actually leaked. In other words, the
contention is that second part of allegation cannot be proved
unless first part of the same is clearly established.
11. The next contention of learned Senior Counsel for the
petitioner is that the entire enquiry was founded upon suspicion
and doubts. The learned District Judge, Visakhapatnam accepted
the sealed cover containing pen-drive from the petitioner without
raising any objection, proceeded ahead with the conduction of
written tests followed by interview as per the prescribed schedule.
No complaint of any nature with quite promptitude was made to
the High Court regarding suspicion of leakage of question papers
and the complaint was preferred for the first time to the High
Court by the learned District Judge, Visakhapatnam after lapse of
5½ months from the date of conducting the written examination.
An enquiry solely based on suspicion has no legs to stand. The
doubt entertained by the learned District Judge was that the
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petitioner copied the contents of pen-drive in his laptop before
handing it to the learned District Judge. Suspicion, however high
cannot form the basis of a charge. Reliance is placed on the
judgment of Supreme Court in Union of India vs. H.C. Goel 1 and
Commissioner of Police, Delhi vs. Jai Bhagwan 2.
12. The statement of learned District Judge (P.W.1) was referred
to show that he had admitted on more than one occasion in his
deposition that he did not conduct any enquiry as per his
suspicion about the alleged leakage of question papers. He also
admitted that he had not received any complaint about leakage of
papers from the candidates or from any other quarter. He did not
enquire about Mr.Faizal, who is stated to be an employee of
District Court, Guntur. The said Faizal did not enter the witness
box. Mr. Siva Rama Krishna, employee of District Court,
Visakhapatnam, was also not produced as a witness. The names
of relatives of the petitioner who were allegedly benefitted by
leakage of question papers were neither disclosed nor any such
person was introduced as a witness. Thus, findings of the
Enquiry Officer are perverse.
1963 SCC OnLine SC 16
(2011) 6 SCC 376
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13. In order to point out with clarity, learned Senior Counsel
advanced arguments charge-wise. By taking this Court to the
charges, it is urged that the common allegation in all charges is
that the petitioner copied the contents of pen-drive in his laptop
and intentionally accessed the confidential information relating to
recruitment process with ulterior motive before handing over the
said pen-drive to the District Judge. The examination papers and
answer key could not be opened in any other laptop or computer
and could only be opened in the laptop of the petitioner (charge
Nos.2 and 6). It is urged that this allegation shows the hollowness
of the charges. If the question papers and answer key could not
be opened as alleged in any other computer other than the laptop
of the petitioner, it is difficult to understand as to how the District
Court authorities could access the question papers, took printout
of question papers and conducted the examination on 22.10.2021
and 23.10.2011.
14. The charge No.1 was referred to show that it pertains to copy
of contents of pen-drive in the laptop. It is contended that
admittedly, the learned District Judge (P.W.1) was not present at
the time the petitioner undertook the conversion of 2010 M.S
Office version into 2003 M.S. Office version in the chamber of
District Judge at his request. Therefore, P.W.1 is not an eye-
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witness about brining laptop by the petitioner. P.W.1 clearly
deposed on 29.03.2014 that he was not in the chambers when the
charged officer reached the chambers with laptop to open the
answer key. He pleaded ignorance whether the laptop allegedly
carried by the petitioner was his personal one or not. Neither
P.W.3 nor P.W.4 deposed in their examination-in-chief that they
have seen the contents of the pen-drive in the laptop in question.
During cross-examination, both of them deposed that they did not
see the contents of the pen-drive in the laptop brought by the
petitioner. The Computer Operator (P.W.3) deposed on
22.11.2014 that the District Judge left his chamber after five
minutes, the petitioner came to his chamber. He could not verify
about the details of the files stored in the laptop brought by the
petitioner. P.W.4, the Superintendent of Visakhapatnam District
Court, stated that he has not seen the contents of the laptop. The
statement of P.W.3 recorded on 22.11.2014 was referred wherein
he stated that if password is known, the answer key file can be
opened not only in the laptop brought by the petitioner, but also
in any other system having higher version. It is canvassed that on
the basis of conjecture, the Enquiry Officer opined that the answer
key was opened in the laptop brought by the petitioner, it might
contain the contents of the pen-drive, and therefore, it must be
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the petitioner alone who would have copied the contents of pen-
drive in that laptop, and hence, the charge is proved.
15. Since there was no legal evidence to support the allegations
mentioned in charge No.1, the Disciplinary Authority held that
petitioner is entitled to get benefit of doubt from this charge. The
prosecution miserably failed to establish that the petitioner
breached the trust reposed in him viz., (i) handing over the sealed
cover intact, (ii) rendering assistance and (iii) maintaining
confidentiality.
16. The next limb of argument is that there was no iota of
material in the enquiry to doubt the petitioner's integrity. The
petitioner has unblemished service record. The finding of the
Disciplinary Authority that the Charged Officer had opened the
sealed cover and tampered it is perverse and without there being
any evidence. In the complaint of the learned District Judge dated
31.03.2012, there was no assertion that seal of the sealed cover
handed over to him by the petitioner was tampered. If seal would
have been tampered, the learned District Judge would have
certainly reported this fact to the High Court immediately. The
record shows that there is no complaint, no charge, no enquiry, no
evidence and no finding of the Enquiry Officer with regard to
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tampering of the sealed cover containing the confidential pen-
drive.
17. P.W.3, who dealt with pen-drive, deposed on 22.11.2014
that he did not notice any tampering of pen-drive and therefore,
did not make any complaint in that regard to the learned District
Judge. The finding of the Enquiry Report (running page 283) was
highlighted: 'Further, it is not the complaint of P.W.1 or the High
Court that there was tampering of question papers in the pen-
drive in question'. The Enquiry Officer's Report at paragraph
No.29 (xxxvii) contains the finding- 'the Charged Officer being
typist of question papers has to clear the air of suspicion by his
own conduct and not on omissions found in the evidence of
witnesses presented before the Enquiry Officer'. Learned Senior
Counsel for the petitioner submits that the prosecution failed to
discharge the initial burden and therefore, shifted the burden on
the petitioner, which is impermissible.
18. So far charge No.2 is concerned, it is submitted that it
relates to making frequent calls to the learned District Judge and
his staff regarding the recruitment process. The statement of
P.W.1 was referred to show that he was not in a position to point
out the date or time of alleged calls nor any call data relating to
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phone calls of petitioner were produced to establish the charge.
P.W.3 admitted that the petitioner did not call him over phone any
time to enquire about the recruitment process. Likewise, P.W.3
could not depose about any phone call of the petitioner to the
learned District Judge about the recruitment process. P.W.4
further admitted that petitioner had not pressurized directly or
indirectly for speeding up the recruitment process. He further
admits that the petitioner never enquired about any details
regarding the recruitment process of any candidate. The learned
District Judge (P.W.1) himself deposed on 29.03.2014 that
petitioner sought no favour from him. Thus, there exists no
evidence to hold the charge No.2 as proved.
19. The charge No.6 relates to asking the learned District Judge
for return of the pen-drive. The pen-drive was containing the
question papers and answer key. This official pen-drive was given
to the petitioner by the High Court. It was expected to be returned
by the learned District Judge because the pen-drive was
containing partly dictated judgments of the portfolio Judge. In
this backdrop, the petitioner requested the complainant/P.W.1 to
return the pen-drive. P.W.1 deposed on 29.03.2014 that the
portfolio Judge directed him to return the pen-drive to the
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petitioner because it contains partly dictated orders and
judgments.
20. The submission of P.W.1 was referred to show that there is
no iota of evidence that papers are leaked, but he entertained
doubt and suspicion of leakage because some candidates, who
fared well in written examination, could not answer similar
questions during personal interview. P.W.1 further admitted that
he has not recorded the statements in the discreet enquiry and no
candidate complained about leakage of question papers.
21. Furthermore, it is urged that charge Nos.1, 2 and 6 were
held to be 'proved' relating to imputation of leakage of question
papers, whereas charge Nos.3, 4, 5 and 7, which have direct
relation with other charges were held as 'not proved'. The charge
Nos.1, 2 and 6 were erroneously found to be 'proved'. The finding
of the Enquiry Officer relating to charge Nos.1, 2 and 6 are self-
contradictory and not based on evidence on record. Since
petitioner unequivocally denied the charges, it was obligatory for
the prosecution to establish the charges and that burden could
not have been shifted on the petitioner. Reference is made to the
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judgments in the case of Nirmala J. Jhala vs. State of Gujarat 3
and Roop Singh Nagi vs. Punjab National Bank 4.
22. Lastly, it is submitted that before imposition of punishment
of removal from service, the petitioner had completed about 34
years of unblemished service and 56 and ½ years of age. No
adverse confidential report was ever communicated to him. In
several cases, where delinquent officer crossed 50 years of
age/completed 30 years of service, the Apex Court opined that
punishment of dismissal/removal from service is harsh and
disproportionate and substituted it with punishment of
compulsory retirement with pension. The petitioner attained the
age of superannuation on 31.03.2018.
Contentions of the respondents:
23. On the other hand, Sri Y. Rama Rao, learned Standing
Counsel for the High Court supported the procedural part of the
Departmental Enquiry, the findings and the impugned order of
punishment, which was affirmed in review. Learned counsel
submits that in the Departmental Enquiry, full, reasonable and
effective opportunity of defence was provided to the petitioner.
There is no serious procedural breach in the enquiry which
(2013) 4 SCC 301
(2009) 2 SCC 570
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caused prejudice to the petitioner and warrants interference by
this Court.
24. The petitioner being employee of the High Court was obliged
to maintain integrity and work with sincerity and devotion. The
purity of selection is of utmost importance. If petitioner
contributed in polluting the selection, no fault can be found in the
action of the department in punishing him. The reasonable
amount of suspicion led to issuance of charge sheet, which was
followed by a full-fledged domestic enquiry. In the enquiry also
P.Ws.1, 2, 3 and 5 have deposed against the petitioner. The
appreciation of evidence to take a different view is not permissible.
The punishment imposed is commensurate to the serious
misconduct and cannot be termed as harsh and disproportionate.
25. The petitioner filed written synopsis. The parties confined
their arguments to the extent indicated above. We have bestowed
our anxious considerations on the rival contentions and perused
the record.
FINDINGS:
Scope of Judicial Review:-
26. Before dealing with rival contentions, it is apposite to remind
ourselves about the scope of interference in the case of
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Departmental Enquiry and punishment. This is trite that this
Court while undertaking judicial review against a Departmental
Enquiry and punishment cannot sit as an appellate Court to re-
weigh or re-appreciate the evidence. The procedural part of the
enquiry is subjected to judicial review to examine whether the
principles of natural justice and governing rules (CCA Rules in
this case) were breached or not and whether such breach results
in any prejudice to the delinquent employee. The findings of the
Enquiry Officer can be put to test for limited purpose of examining
whether the findings are based on no evidence or perverse in
nature. Re-appreciation of evidence to hold that another view is
possible, is not a ground for interference. Putting it differently, if
there is some legal evidence against the delinquent employee
relating to specific charge, no interference is warranted by this
Court. The punishment can be interfered with only if it pries the
conscience of the Court being extremely disproportionate. The
Supreme Court in State of Andhra Pradesh vs. S. Sree Rama
Rao 5 has reiterated the said principle which was followed in the
State of Andhra Pradesh vs. Chitra Venkata Rao 6, the relevant
portion reads as under:
"21. ... The High Court is not a court of appeal under Article
226 over the decision of the authorities holding a
AIR 1963 SC 1723
(1975) 2 SCC 557
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departmental enquiry against a public servant. The Court is
concerned to determine whether the enquiry is held by an
authority competent in that behalf and according to the
procedure prescribed in that behalf, and whether the rules of
natural justice are not violated. Second, where there is some
evidence which the authority entrusted with the duty to hold
the enquiry has accepted and which evidence may reasonably
support the conclusion that the delinquent officer is guilty of
the charge, it is not the function of the High Court to review
the evidence and to arrive at an independent finding on the
evidence. The High Court may interfere where the
departmental authorities have held the proceedings against
the delinquent in a manner inconsistent with the rules of
natural justice or in violation of the statutory rules prescribing
the mode of enquiry or where the authorities have disabled
themselves from reaching a fair decision by some
considerations extraneous to the evidence and the merits of
the case or by allowing themselves to be influenced by
irrelevant considerations or where the conclusion on the very
face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion.
The departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there is some
legal evidence on which their findings can be based, the
adequacy or reliability of that evidence is not a matter which
can be permitted to be canvassed before the High Court in a
proceeding for a writ under Article 226."
(Emphasis Supplied)
27. The ratio decideni of this case is consistently followed by the
Supreme Court in catena of judgments such as: (i) Apparel
Export Promotion Council vs. A.K.Chopra 7, (ii) Bank of India
vs. T.Jogaram 8, (iii) State of U.P. vs. Man Mohan Nath Sinha 9,
(iv) Allahabad Bank vs. Krishna Narayan Tewari 10, (v) State of
1999 (1) SCC 759
2007 (7) SCC 236
2009 (8) SCC 310
2017 (2) SCC 308
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Karnataka vs. N. Gangaraj 11 and (vi) Pravin Kumar vs. Union of
India 12.
28. Now, we deem it proper to proceed to examine the merits of
the matter on the anvil of the principles laid down in the aforesaid
cases.
Charge Sheet:-
29. The charge sheet contains seven charges which are
reproduced below for ready reference:
ARTICLES OF CHARGES
Sl.No. Charge
Charge No.1 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, were entrusted with confidential duties relating to the
conducting of the examinations of Junior Assistant,
Personal Assistant, Typist, Copyist posts in
Visakhapatnam District. In that connection you were
given a pen-drive to be confidentially handed over to the
District Judge on 21.10.2011, who is conducting written
examinations for the said posts. Instead of handing over
the said pen-drive, it was found that you have copied
the contents of the said pen-drive on a laptop and
intentionally accessed the confidential information
relating to the recruitment process with ulterior motives
before handing over the said pen-drive to the District
Judge and thereby you have failed to maintain the
integrity expected of a Government servant in carrying
out the confidential and onerous duties entrusted to you
and thereby you have resorted to breach of trust reposed
in you by the higher authorities, which act of yours, if
proved or established would amount to grave
misconduct and unbecoming of a Government servant
within the meaning of Rule 3 of the A.P. Civil Services
(Conduct) Rules, 1964.
2020 (3) SCC 423
2020 (9) SCC 471
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Charge No.2 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, were keenly following the recruitment process and
were suggesting for speedy completion of the interviews
and completion of recruitment process, by frequently
calling the District Judge over phone in an unusual
manner which is not expected from any employee who is
not entrusted with any such duties by the authorities.
The frequent calls to the District Judge and his staff
regarding the recruitment process and the undue
interest shown by you to elicit information regarding a
confidential and sensitive matter has given rise to
suspicion and doubt that you have been playing fraud
in the process of recruitment by secretly copying the
contents of the pen-drive on to your laptop. The
examination paper and the key which could not be
opened in any other laptop or computer, could only be
opened in your laptop alone shows that you have
intentionally taken hold of the confidential information
with ulterior motives and to jeopardize the fairness in
the recruitment process. As such, you have behaved in a
manner unbecoming of a Government employee, which
act of yours, if proved or established would amount to
grave misconduct and unbecoming of a Government
servant within the meaning of Rule 3 of the AP Civil
Services (Conduct) Rules, 1964.
Charge No.3 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, during the aforesaid period and while functioning in
the aforesaid office, have divulged the confidential
information, which was fraudulently copied by you in
your laptop, to some of the candidates belonging to the
Muslim Community of Guntur District, and BC- B
(Settibalija) of Gollapalem, Jail Road of Visakhapatnam,
with ulterior motives to see to it that they secure highest
marks in the written examination whereas the same
candidates have failed to answer the same questions
when asked in the interview, establishing that the said
candidates were hand in glove with you. By passing on
the confidential information to the candidates in the
recruitment process, you have acted in a manner which
will place your official position in embarrassment to the
higher authorities and the High Court, which act of
yours, if proved or established would amount to grave
misconduct and unbecoming of a Government servant
within the meaning of Rule 3 of A.P. Civil Services
(Conduct) Rules, 1964.
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Charge No.4 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, colluded with Siva Rama Krishna who is an
employee of Judicial Department of Visakhapatnam
Unit, and who is known to be a notorious character in
manipulating things involved in such fraudulent and
nefarious activities and resorted to fraud in the
recruitment process by passing on the information
which you have illegally copied into your laptop to the
candidates in the recruitment process for wrongful gain.
Thereby you have failed to maintain absolute integrity,
impartiality and a sense of propriety expected of every
Government employee, which act of yours, it established
would amount to grave misconduct and unbecoming of a
Government servant within the meaning of Rule 3 of A.P.
Civil Services (Conduct) Rules, 1964.
Charge No.5 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, colluded with Faizal, who is an employee of Judicial
Department of Guntur Unit, and resorted to fraud in the
recruitment process by passing on the information
which you have illegally copied into your laptop to the
candidates in the recruitment process for wrongful gain,
thereby you have failed to maintain absolute integrity,
impartiality and a sense of propriety expected of every
Government employee, which act of yours, if established
would amount to grave misconduct and unbecoming of a
Government servant within the meaning of Rule 3 of A.P.
Civil Services (Conduct) Rules, 1964.
Charge No.6 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, repeatedly called the District Judge over phone and
persistently requested for return of the pen-drive which
was handed over to District Judge by you and which
could not be opened on any other computer by the staff
of District Court and you have intelligently saw to it that
the said pen-drive can only be opened by you on your
laptop alone in order to keep hold of the confidential
information with ulterior motives. As such, you are the
only one who had the exclusive access to the
confidential information available in the said pen-drive
and the same was illegally copied into your laptop and
fraudulently passed on to the candidates chosen by you
in the recruitment process, as such you have failed to
maintain absolute integrity, devotion to the duty and
conduct expected of a Government servant, which act of
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yours, if established would amount to grave misconduct
and unbecoming of a Government servant within the
meaning of Rule 3 of A.P. Civil Services (Conduct) Rules,
1964.
Charge No.7 That you Sri P.V. Surya Narayana, being a Government
servant while working as Personal Secretary to Justice
G, suppressed the material fact that your nephew has
also appeared for the Junior Assistant examination and
secured 71 marks and in the oral interview, he could not
even answer one question from the question paper
which he has answered in the written examination. It
clearly shows that the said candidate being your close
relative was helped by you by passing on the confidential
information regarding the question paper and key held
by you illegally in your laptop. Your passing on the
confidential information to your close relative is an act of
partiality and lack of integrity on your part, which act of
yours, if established would amount to grave misconduct
and unbecoming of a Government servant within the
meaning of Rule 3 of A.P. Civil Services (Conduct) Rules,
1964.
30. Indisputedly, only charge Nos.1, 2 and 6 were found proved
against the petitioner. A plain reading of the charge sheet shows
that all the charges are based on same incident relating to written
examination held on 22.10.2011 and 23.10.2011.
31. It is apposite to take a glance of all the allegations mentioned
in charge Nos.3, 4, 5 and 7, which could not be proved against the
petitioner.
32. The allegation mentioned in charge No.3 is that the
petitioner fraudulently copied the confidential information from
pen-drive in his own laptop and divulged it to the muslim
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community candidates of Guntur District and BC-B (Shettibalija)
candidates of Gollapalem village with ulterior motive to benefit
them in the recruitment process. The said candidates could not
answer the same questions which were asked in the written
examination when they were confronted with same questions in
the interview. Thus, the candidates were hand in glove with the
petitioner. This charge could not be established which includes
the allegation that the petitioner fraudulently copied the
confidential information in his laptop and in turn, shared the
same to certain persons in order to give them undue benefit. The
details of the candidates so benefited were not mentioned in the
charge sheet and it could not be established that the petitioner
had undertaken the said exercise of supplying the confidential
information to benefit the candidates of particular area and
community.
33. Likewise, charge No.4 contains the allegation that petitioner
colluded with one Siva Rama Krishna, who is employee of judicial
department of Vishakapatnam unit and a man of notorious
antecedents and provided the confidential information of question
papers to him, which was illegally copied in the petitioner's laptop.
Thus, in this charge also one of the allegations is that the
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petitioner illegally copied the confidential information into his
laptop, which was allegedly provided to said Siva Rama Krishna.
34. The charge No.5 also contains an allegation that the
petitioner illegally copied confidential information and supplied it to
one Faizal, who is employee of judicial district of Guntur.
Although, this charge was not established, yet the petitioner was
found to be guilty of committing misconduct as per charge No.1.
35. The charge No.7 is that the petitioner suppressed material
fact that his nephew was candidate in the examination. Because
of petitioner's help and getting confidential information of the
question papers, he secured 71 marks in the written examination.
However, he could not answer a single question during viva voce.
36. A minute reading of the charges which were not found
proved shows that there exists a common thread from charge
Nos.1 to 7 that the petitioner copied contents of the pen-drive in his
laptop with ulterior motive to benefit certain candidates. Thus, we
find substance in the contention of the learned Senior Counsel for
the petitioner that all the charges are founded upon the same
incident and recruitment process and are interlinked.
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Burden of proof:-
37. This is trite that the legal parameter to adjudge the evidence
in a Departmental Enquiry is preponderance of probability and not
that the charges must be proved beyond reasonable doubt, the
parameter which is applicable in criminal cases. Yet, we find force
in the argument of the learned Senior Counsel for the petitioner
that even in the Departmental Enquiry the initial burden to prove
the charge is on the prosecution. If that burden is discharged,
onus can be shifted on the delinquent employee. In Nirmala J.
Jhala (supra), the Apex Court held as under:
"39. More so, the High Court has reached the conclusion by
shifting the burden of proof of negative circumstances upon
the appellant. The High Court has erred by holding that in
respect of the incident dated 17-8-1993 i.e. demand of
amount, it was the duty of the appellant to explain the said
circumstance, and that instead of giving any satisfactory
explanation in respect of entry of Shri C.B. Gajjar, she had
completely disowned and denied any such occurrence. The
onus was always on the Department to prove the said
circumstance. The Court should have also taken note of the
fact, that the matter was adjourned for 28-8-1993, and
being a 4th Saturday, it was a holiday. The Court further
committed an error by holding, that the failure to challenge
the most crucial element of the evidence, regarding the
incident of 17-8-1993, in respect of a demand of bribe of Rs
20,000 fully justified the findings of the enquiry officer.
Again, the High Court shifted the onus to prove a negative
circumstance on the appellant.
52.3. The High Court erred in shifting the onus of proving
various negative circumstances as referred to hereinabove,
upon the appellant who was the delinquent in the enquiry."
(Emphasis Supplied)
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38. In the instant case, the point raised is whether the
prosecution could discharge the burden in relation to each of the
charge. Similarly, the findings of the Enquiry Officer needs to be
examined whether it is based on any legal evidence or not.
Enquiry report:-
Charge No.1:-
39. In charge No.1, there is no allegation against the petitioner
that he had not provided the pen-drive to P.W.1 in sealed cover.
The specific allegation is that the petitioner has copied the
contents of the pen-drive on his laptop with ulterior motive and
thereby failed to maintain integrity. In the examination-in-chief of
P.W.1, the then District Judge, clearly admitted that after
completion of examination on the evening of 23.10.2011, he
directed his computer in-charge to open the answer key from the
pen-drive for the purpose of evaluating question papers. Since the
storage in the pen-drive was in a different format, the petitioner
was called to open in a higher version computer i.e., laptop carried
by him. This deposition shows that there is substantial force in
the argument of the learned Senior Counsel for the petitioner that
since the alleged event of opening of pen-drive had taken place
after conducting the written examination, the question of leakage
of question papers/answers to the candidates to benefit them does
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not arise. The leakage can give benefit to the aspirants only if it
takes place before conduction of examination. The deposition of
P.W.1 further shows that he entertained doubt only at the time of
interview when similar questions that were asked in the written
examination were put to the candidates and they could not
answer them, whereas they secured good marks in the written
examination. The entire deposition of P.W.1 shows that he was
not present at the time when petitioner had allegedly undertaken
the exercise of opening the pen-drive in his laptop. Importantly,
P.Ws. 2, 3 and 5 could depose that they had seen the petitioner
copying confidential information from pen-drive to his laptop.
There is no iota of evidence to establish that the petitioner copied
the information from pen-drive before handing it over to the
District Judge.
40. Learned Senior Counsel for the petitioner has rightly pointed
out paragraph No.29 (xxxvii) of the Enquiry Officer's Report to
show that it is founded upon suspicion and not based on
proof/evidence. In catena of judgments it was held that findings
of the Enquiry Officer must be based on evidence on record and
cannot be on mere ipse dixit of Investing Officer {see judgment of
Supreme Court in the case of Anil Kumar vs. Presiding Officer 13
1985 (3) SCC 378
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and Roop Singh Negi (supra)}. Thus, we are constrained to hold
that charge No.1 is based on no evidence.
41. Apart from this, in paragraph No.17 of the punishment
order, the Disciplinary Authority opined that even if benefit of
doubt is given to the petitioner regarding copying of the contents
of pen-drive into his laptop, the other charge was held to be
established viz., (i) he was entrusted with confidential duties
relating to conducting of examination in question, (ii) in that
event, he was given a pen-drive in a sealed cover to be
confidentially handed over to the District Judge (P.W.1) who was
conducting the written examination and (iii) the charged officer
handed over pen-drive to the District Judge in a open state. We
failed to understand how these three aspects can become
foundation for holding charge No.1 as proved.
42. The opening sentence of paragraph No.17 of punishment
order shows that the Disciplinary Authority was not satisfied that
the allegation of copying the contents in the pen-drive was
established based on any legal evidence. Thus, he separated the
charge No.1 by assigning aforesaid three reasons. The first and
second reasons mentioned above do not constitute any
misconduct. So far reason No.3 above is concerned, suffice it to
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say that no allegation is made in the charge sheet that the
petitioner has not handed over the pen-drive to the District Judge
in a sealed envelope, whereas the portfolio Judge handed over the
pen-drive in a sealed envelope. If pen-drive was handed over to
the District Judge in an open state, the learned District Judge
ought to have verified from the concerned portfolio Judge whether
it was sent in a sealed cover or in an open state. In view of the
judgments of the Supreme Court in the cases of Laxmi Devi
Sugar Mills v. Nand Kishore Singh 14 and M.V.Bijlani v. Union
of India 15, the delinquent employee cannot be subjected to
punishment on an allegation which was not subject matter of
charge sheet. Thus, for this reason also charge No.1 cannot be
treated to be established against the petitioner.
Charge No.2:
43. As noticed above, the allegation in this charge is that the
petitioner frequently called the District Judge (P.W.1) over phone
in an unusual manner showing undue interest regarding the
selection in question. The highlighted portion of charge No.2 itself
shows that it is founded upon 'suspicion'. No prosecution witness
could depose anything with accuracy and precision regarding this
charge No.2. P.W.1 could not depose the time and date of calls
AIR 1957 SC 07
(2006) 5 SCC 88
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allegedly made by the petitioner. No call details were produced.
P.W.1 candidly admitted that the petitioner did not call him over
phone any time to enquire about the recruitment process. P.W.4
also admitted that the petitioner had not pressurised him directly
or indirectly for speeding up the recruitment process. The District
Judge (P.W.1) clearly admitted that the petitioner sought no
favour from him in relation to selection in question. Thus, we do
not find any difficulty in accepting the contention of the petitioner
that charge No.2 could not be established in the Departmental
Enquiry.
Charge No.6:
44. The charge No.6 contains a repetitive allegation that the
petitioner copied the contents of pen-drive in another computer and
intelligently ensured that the said pen-drive can only be opened by
the petitioner in his laptop. The statement of P.W.1 shows that he
admitted that the concerned portfolio Judge directed him to return
the pen-drive to the petitioner because it contains partly dictated
orders and judgments. P.W.1 further stated that he has no iota of
evidence with him about leakage of papers, but he entertained a
doubt because certain candidates who scored good marks in
written examination could not answer same questions in the
interview. The relevant portion of his deposition reads thus:
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" As the candidates who scored highest marks in the written
test could not even answer the same questions in the question
paper in the interview, I strongly suspected that as the
question paper was leaked that they got highest marks in the
written test."
(Emphasis Supplied)
45. Thus, whole allegation is founded upon suspicion. It is trite
that suspicion, however, strong it may be cannot take the place of
proof {see H.C. Goel (supra), Nand Kishore Prasad v. State of
Bihar 16, Roop Singh Negi v. Punjab National Bank 17 and
judgment of Madhya Pradesh High Court in the case of Union of
India v. V.K. Girdonia 18}. The common string travelling through
these authorities is that delinquent employee cannot be crucified
merely on the basis of suspicion.
46. In view of foregoing discussion, it is clear like cloudless sky
that all the charges are interrelated and based on same factual
foundation relating to purity of written examination. The findings
of Enquiry Officer are based on no evidence. The learned Enquiry
Officer shifted the burden on the shoulders of the petitioner to
disprove the charge which practice is unknown to law. In this
view of the matter, the punishment order based on such cryptic
Enquiry Report and not based on any legal evidence cannot
sustain judicial scrutiny.
1978 SCR (3) 708
2009 (2) SCC 570
2002 SCC OnLine MP 407
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47. Since in our judgment, it is a case of no evidence, it is not
necessary to examine the argument of learned Senior Counsel for
the petitioner raising eyebrows on the procedural part of the
enquiry. Similarly, once charges are found to be not proved and
findings are held to be perverse, the punishment order must be
axed. Hence, there is no need to put the punishment order to test
on the anvil of doctrine of proportionality.
48. In view of foregoing discussion, the impugned order of
punishment dated 12.09.2016 and order of review dated
18.11.2017 are set aside. Since the petitioner has crossed the
age of superannuation, the question of his reinstatement does not
arise. The petitioner in this Writ Petition has not pleaded that
after removal from service, he was not gainfully employed
elsewhere. In U.P. State Brassware Corpn. Ltd. v. Uday Narain
Pandey 19, it was held as under:
"61. It is not in dispute that the Respondent did not raise any
plea in his written statement that he was not gainfully
employed during the said period. It is now well-settled by
various decisions of this Court that although earlier this Court
insisted that it was for the employer to raise the
aforementioned plea but having regard to the provisions
of Section 106 of the Evidence Act or the provisions analogous
thereto, such a plea should be raised by the workman."
(Emphasis Supplied)
(2006) 1 SCC 479
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49. In Kendriya Vidyalaya Sangathan v. S.C. Sharma 20, it is
held as under:
"16... When the question of determining the entitlement of a
person to back wages is concerned, the employee has to show
that he was not gainfully employed. The initial burden is on
him. After and if he places materials in that regard, the
employer can bring on record materials to rebut the claim. In
the instant case, the respondent had neither pleaded nor
placed any material in that regard."
(Emphasis Supplied)
Similar view is taken in Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya 21.
50. In absence of necessary pleadings, the petitioner is not
entitled to get back wages. Accordingly, while blotlessly
exonerating him from charges, we deem it proper to direct the
respondents to treat the petitioner in service on notional basis till
his date of superannuation. This order shall reap all pensionary
benefits to the petitioner from due date. The respondents shall
complete the aforesaid exercise within ninety (90) days from the
date of communication of this order and pay the due benefits to
the petitioner.
(2005) 2 SCC 363
(2013) 10 SCC 324
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51. The Writ Petition is allowed to the extent indicated above.
There shall be no order as to costs. Miscellaneous petitions
pending, if any, shall stand closed.
_______________________
JUSTICE SUJOY PAUL
____________________________________________
JUSTICE NAMAVARAPU RAJESHWAR RAO
Date: 10.09.2024
GVR/TJMR
