A. C. Ravindran v. High Court Of Andhra Pradesh, Represented By Its Registrar (Management)
2010-07-14
G.CHANDRAIAH, GHULAM MOHAMMED
body2010
DigiLaw.ai
Judgment Ghulam Mohammed, J. Heard both the counsel. 2. This writ petition is filed for a writ of certiorari to call for the records relating to and connected with proceedings in Dis.No.3258/2007 dated 31.5.2007 and Dis.No.3696/2007 dated 21.6.2007 of the 2nd respondent – The Principal District and Sessions Judge, Rangareddy District, L.B.Nagar, Hyderabad, as confirmed by the 1st respondent – The High Court of Andhra Pradesh, represented by its Registrar (Management), in proceedings D(D)No.28 & 29/2007.C.4(Con.) dated 2.4.2008 imposing the punishment of dismissal from service and to recover Rs.24,55,600/-, and to set aside the same and grant the consequential benefits. 3. The petitioner was working as Senior Assistant in the court of Junior Civil Judge, Parigi, Rangareddy District. While so, he was served with charge memo vide Lr.Dis.No.8408/2005 dated 17.12.2005 issued by the 2nd respondent, containing five charges. The said charges relate to returning of the pass books to an imposter without proper identification. While he was working as Senior Assistant in the Court of Principal Senior Civil Judge, Rangareddy during the period from 9.2.2005 to 13.10.2005, he returned the pass book of Rangareddy Co-operative Urban Bank Limited, Kothapet, Hyderabad standing in the name of Mr.Ranjeet Malhota to an imposter Ch.Prabhaker Reddy, which resulted in withdrawal of huge amount. The said charges are as under: 1. That Sri A.C.Ravindran, worked as Senior Assistant in the Court of the Prl. Senior Civil Judge, Ranga Reddy District from 09.02.2005 to 13.10.2005. The individual having been entrusted with Accounts Branch in the Court of Prl. Senior Civil Judge, Rangareddy District by an office order dated 4.3.2005 failed to maintain P.D. Cash Book in that Court from 1.4.2005 to 29.9.2005. The above act of the individual constitutes gross negligence towards duties, dereliction of duties and lack of devotion to duty and that he thereby contravened Rule 3 of A.P.Civil Services (Conduct) Rules 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 2. That Sri A.C.Ravindran, Senior Assistant during his tenure of work in the Court of the Prl.
2. That Sri A.C.Ravindran, Senior Assistant during his tenure of work in the Court of the Prl. Senior Civil Judge, Ranga Reddy District, having knowledge of filing of petitions in E.A.No.204/95, claim petition filed by Sri P.Chandra Reddy and E.A.No.205/05, stop payment petition, and having handled E.A.No.204/05 suppressed the facts and kept quite when the cheque petition in E.A.No.202/05 was being ordered without presence of the party, Advocate and verification and identification of the party, which is contrary to the Hon’ble High Court Circular instructions issued from time to time and allowed the cheque to be dispatched from the court on 8.9.05. Sri A.C.Ravindran obviously did the above acts in collusion with Sri Y.Lakna Reddy, Superintendent (under suspension), Sri P.Ganapathi, Junior Assistant, E.P.Clerk, Sri G.Pratap Reddy, Advocate and Sri Ch.Prabhakar Reddy, imposter, for extraneous reasons and facilitated withdrawal of money and its misappropriation. Sri A.C.Ravindran, by the above acts failed to maintain absolute integrity, discipline, diligence, honesty, sense of propriety and behaved in a manner which is unbecoming of a Government servant and derogatory to the prestige of the Government, which acts tantamount to misconduct. Sri A.C.Ravindran, thereby contravened Rule 3 of A.P.Civil Service (Conduct) Rules, 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 3. That Sri A.C.Ravindran, Senior Assistant, falsely claimed that on 6.9.2005 he handed over Pass Book to the imposter Sri Ch.Prabhakar Reddy, after taking his signature and the signature of his counsel Sri G.Pratap Reddy, in the Section, though in fact both of them have not attended the Court at all and Sri A.C.Ravindran, has taken the signature else where than in the Court. Sri A.C.Ravindran, by the above mischievous act committed breach of trust imposed on him by joining hands with the imposter and his counsel and others and that he is not honest, diligent, faithful and failed to maintain absolute integrity and contravened Rule 3 of A.P.Civil Services (Conduct) Rules, 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of APCS (CCA) Rules, 1991. 4.
4. That Sri A.C.Ravindran, has also prepared covering letter to send the cheque in E.P.No.144/05 for Rs.32,75,450/- to the Rangareddy Co-operative Urban Bank Pvt. Ltd., without there being any specific order of the presiding officer which facilitated the cheque to be dispatched to the Bank on 8.9.2005 in face of E.A.No.204/05 and E.A.No.205/05, a claim petition and stop payment petition respectively. Sri A.C.Ravindran, did the above act in connivance with Sri Y.Lakna Reddy, Superintendent, Sri P.Ganapathi, Junior Assistant and others obviously for extraneous reasons and in utter disregard to the conduct Rules envisaged in Rule 3 of A. P. Civil Services (Conduct) Rules 1964 and mis-conducted himself and he thereby rendered himself liable for disciplinary proceedings under Rule 20 of A.P.Civil Services (CCA) Rules, 1991. 5. That under Article 5 of A.P.Financial Code, Sri A.C.Ravindran, being Senior Assistant and entrusted with the Accounts Branch, of the Court of the Prl. Senior Civil Judge, Ranga Reddy District, during his tenure of work was duty bound to see that proper accounts are maintained for all Financial transactions and render accurately and promptly all such accounts and he ought to have checked the correct maintenance of the accounts of the Court and failure to discharge the above functions, will hold him personally responsible for any loss that may be found to be due to any negligence of duties; Under Article 273 of the Financial Code, the Government will hold a Government Servant personally responsible for any loss sustained by the Government through fraud or negligence on his part and also for any loss through fraud or negligence on the part of any other Government Servant and under Article 300 of A.P.Financial Code, if the loss is held due to the fraud on the pat of the Government Servant, the same shall be recovered from the Government Servant concerned.
Sri A.C.Ravindran, along with Sri P.Ganapathy, prima-faice, conspired with Sri Y.Lakna Reddy, who master-minded the conspiracy to embezzle the public money and in league with Sri G.Prathap Reddy, Advocate, and his brother-in-law Sri Ch.Prabhakar Reddy, imposter, caused pecuniary loss to the Government to a tune of Rs.24,55,600/- (out of Rs.32,75,450/-, Rs.4,69,850/-was frozen and Rs.3,50,000/- was recovered from Sri Ch.Prabhakar Reddy, by the police) and Sri A.C.Ravindran, is therefore accountable for the loss caused and the amount is liable to be recovered from him and he is not loyal, diligent, honest, lacking in devotion to duty, and failed to maintain absolute integrity and that he thereby contravened Rule 3 of A.P.Civil Service (Conduct) Rules, 1964 and rendered himself liable for disciplinary action under Rule 20 A.P.Civil Services (CCA) Rules, 1991. 4. On denial of the above charges by the petitioner, the 2nd respondent appointed the V Additional District and Sessions Judge, Rangareddy as the enquiry officer. The enquiry officer conducted the enquiry and during the course of enquiry, on behalf of the Department, P.Ws.1 to 10, were examined and Exs.P-1 to P-72, were marked. On behalf of the defense, D.Ws.1 to 5 were examined and no documents were marked on behalf of the petitioner. 5. Appreciating the entire evidence, the enquiry officer submitted report in Lr.Dis.No.93/2007 dated 9.3.2007 holding that charges 1 and 3 as proved and the other charges as not proved against the petitioner. The petitioner was served with the report of the Enquiry Officer and he submitted his explanation and not being satisfied with the same, the 2nd respondent – disciplinary authority, by proceedings in Dis.No.3258/2007, imposed the punishment of dismissal from service and by separate proceeding dated 21.6.2007, ordered recovery of an amount of Rs.24,55,600/-, with interest, along with the other delinquent Lakna Reddy. Aggrieved by the order of dismissal, the petitioner preferred administrative appeal to the High Court and the 1st respondent – appellate authority, by proceedings in D(D) A.No.2829/2007 C.4(Con) dated 2.4.2008, confirmed the order of dismissal passed by the disciplinary authority and thereby rejected the appeal. Thus, aggrieved by the orders passed by the respondents in imposing the punishment of dismissal from service and ordering recovery of the amount, the petitioner filed the present writ petition. 6. Before noting to the case of the petitioner, it is necessary to note the brief background, leading to the leveling of the charges. 7.
Thus, aggrieved by the orders passed by the respondents in imposing the punishment of dismissal from service and ordering recovery of the amount, the petitioner filed the present writ petition. 6. Before noting to the case of the petitioner, it is necessary to note the brief background, leading to the leveling of the charges. 7. M/s Olmpia Gas Pvt. Ltd., is having its registered officer at New Delhi. It purchased an extent of Ac.1-37 guntas of land at Bachupally of Rangareddy District in the year 1992, for setting up of L.P.G. bottling plant. Mr.Dinesh Ghopra, one of the directors of the company, was entrusted with the affairs relating to the State of A.P. and subsequently the said Mr. Dinesh Ghopra, was replaced by Mr.Ranjit Malhotra. However, the setting up of the bottling plant, could not be materialized and subsequently, in the month of June, 2005, on seeing a board erected in the site to the effect that the land has been taken over by somebody in the court auction, Ranjit Malhotra entrusted the matter to Mr.Kumaresan, Advocate and his associates for investigation of facts. During the course of enquiry, it came to light that M/s Sri Krishna Agencies, represented by its proprietrix Smt. T.Subhashani, resident of Suryapat, was nominated as one of the dealers of M/s Olmpia Gas Pvt. Ltd., at Surypatet, by collecting security deposit. As M/s Olympa Gas Pvt. Ltd., stopped the activity, its dealer, M/s Sri Krishna Agencies, Suryapet, filed suits in O.S.Nos.65/1997 and 24/1998 on the file of Senior Civil Judge’s Court, Suryapet, for recovery of security deposit of Rs.4,00,000/-and Rs.2,29,773/- respectively. As M/s Olmpia Gas Pvt Ltd., represented through Ranjit Malhotra, failed to contest the matter, it was set ex parte and ex pate decree was passed in two suits on 22.1.1999 and 2.7.1998 respectively, and the said decrees were transferred to the Principal Senior Civil Judge’s Court, Rangareddy District, for execution, where the immovable property of the company was situate and in the said court, the execution petitions were numbered as E.P.Nos.144 and 145 of 1999. In the said E.P.s, the land was attached and put to auction on 23.1.2004 and it was knocked down in favour of Sri Prabhakar Reddy, who is the highest bidder, for an amount of Rs.41,20,000/-.
In the said E.P.s, the land was attached and put to auction on 23.1.2004 and it was knocked down in favour of Sri Prabhakar Reddy, who is the highest bidder, for an amount of Rs.41,20,000/-. Thereupon, M/s Kishna Agencies represented by Smt. T.Subhasini filed petitions for withdrawal of the decretal amount of Rs.4,22,983/- and Rs.2,80,350/-and accordingly the said amounts were paid and the balance amount of Rs.30,90,000/- was kept in the fixed deposit in the shape of Vikas Cash Certificates in Syndicate Bank, Manchal Branch on 6.4.2004. 8. Subsequently, a petition in E.A.No.181/2005 was filed in the name of Ranjit Malhotra, the judgment-debtor in the above suits, for withdrawal of the balance amount lying in F.Ds., through G.Pratap Reddy, Advocate. The said E.A. was processed, as alleged in the charge sheet, by the two delinquents, Y.Lakna Reddy and A.C.Ravindran. In the meanwhile, the said Pratap Reddy, Advocate, along with the imposter of Sri Ranjit Malhotra, approached the Rangareddy Co-operative Urban Bank Limited, Kothapet, Hyderabad and got opened an account in the name of the imposter, being introduced by Sri Pratap Reddy, Advocate. Thereafter, an account payee cheque bearing no.473237 dated 6.9.2005, for a sum of Rs.32,75,450/- was received from the Court through a messenger and it was credited in the current account no.11579, opened by the imposter of Sri Ranjit Malhotra. The said cheque amount was withdrawn on installment basis i.e., Rs.12,00,000/- on 8.9.2005, Rs.7,00,000/- on 10.9.2005 and Rs.9,00,000/- on 12.9.2005. 9. Sri J.Kumaresan, Advocate, to whom the matter was entrusted for enquiry by Sri Ranjit Malhotra, one of the Directors of M/s Olympia Gas Pvt. Ltd., after coming to know the fraud played in the matter, gave a complaint to the Police, Saroornagar, on 13.9.2005, which was registered as Crime No.787/2005. The police approached the Rangareddy Co-operative Urban Bank, Kothapet and got freezed the amount lying in the said account. Subsequently, the Principal Senior Civil Judge, Rangareddy District was also informed by the police about the fraud played in the matter. Thereupon, the Principal Senior Civil Judge, Rangareddy District, by his letters dated 19.9.2005 and 20.9.2005, informed the District Judge about the illegal drawal of amount by impersonating the judgment-debtor viz., Sri Ranjit Malhotra in E.P.No.144/1999.
Subsequently, the Principal Senior Civil Judge, Rangareddy District was also informed by the police about the fraud played in the matter. Thereupon, the Principal Senior Civil Judge, Rangareddy District, by his letters dated 19.9.2005 and 20.9.2005, informed the District Judge about the illegal drawal of amount by impersonating the judgment-debtor viz., Sri Ranjit Malhotra in E.P.No.144/1999. On the information furnished by the II Metropolitan Magistrate, Cyberabad, by his letter dated 20.9.2005, to the effect that Y.Lakna Reddy, Superintendent, Principal Senior Civil Judge’s Court was remanded to Judicial custody, on his arrest and production by the police in Crime no.787/2005 of Saroornagar Police Station, registered under Sections 419, 409, 420, 468 and 471 I.P.C.; the Full Additional Charge District Judge, Rangareddy District, issued proceedings dated 21.9.2005, placing the said individual under suspension in public interest. 10. Subsequently, the Principal Senior Civil Judge, Rangareddy District submitted a detailed report on 1.10.2005 to the District Judge, bringing to his notice how the fraud took place and fixed the responsibility on Y.Lakna Reddy, Superintendent, A.C.Ravindran, Senior Assistant and P.Ganapathi, Junior Assistant, for their collusion with the Advocate G.Pratap Reddy and Ch.Prabhakar Reddy, the imposter of Sri Ranjit Malhotra, in drawing the amount in a fraudulent manner. 11. Thereupon, the District Judge after issuing individual memos and considering their explanations, framed charges and as noted above, the enquiry officer submitted report holding that charges 1 and 3 as proved against the petitioner and the remaining charges were held to be not proved. After being unsuccessful before the disciplinary authority and before the appellate authority, the petitioner filed the present writ petition. 12. The case of the petitioner as stated in the affidavit filed in support of the writ petition and also as stated by his counsel is that the first charge relates to failure to maintain P.D. cash book of the court of Senior Civil Judge from 1.4.2005 to 29.9.2005 and the other charge that is proved is that the petitioner falsely claimed that on 6.9.2005 he has handed over pass book to the imposter after taking his signature and the signature of his counsel, though in fact both of them have not attended the court and that the signatures were obtained else where.
With regard to first charge held proved against the petitioner, the case of the petitioner is that he is new to the accounts branch and, therefore, he was not able to follow the procedure of accounts branch in maintaining the cash book and that it was neither willful nor deliberate, but only due to lack of knowledge and that at the most, the act alleged, may amount to procedural lapse. 13. With regard to charge no.3, which relates to the petitioner not obtaining the signatures before handing over the pass book in the court, but obtained signatures elsewhere, is concerned, the case of the petitioner is that the imposter came before him in the section and signed as Ranjeet Malhotra. On taking his signature without doubting his identity, he returned the pass book to him, as the signature put in by the imposter, was attested by the Advocate on record. Therefore, the contention of the petitioner is that he has issued the pass book in the section/court. But the enquiry officer recorded finding that “It shows that D-2 joined hands with the imposter and his Advocate, having knowledge that imposter is not Ranjeet Malhotra.” The contention of the petitioner is that the enquiry officer did not record any specific finding on this charge and recorded the above finding, which is not the charge at all. The grievance of the petitioner is that he has no prior knowledge of the imposter and he had no occasion to interact with the imposter - Prabhakar Reddy, to know that he is not Rajeet Malhotra and that his responsibility was confined to returning the bank pass book to the account holder/judgment debtor, by taking his signature of acknowledgement and that the cheque is sent to the Bank for realization through the Court employee after the order being passed by the Presiding Officer. The pass book contained the name of Ranjeet Malhotra and the person came to him signed as Ranjit Malhotra and that he was identified as Ranjeet Malhotra by the Advocate on record. Thus, there was no occasion to doubt the identity of the person for refunding of the pass book and that the signature of imposter is tallying with the specimen signature in the pass book.
Thus, there was no occasion to doubt the identity of the person for refunding of the pass book and that the signature of imposter is tallying with the specimen signature in the pass book. The further case of the petitioner is that he never admitted that imposter has not attend the office and that his statement before the Full Additional Charge District Judge, is deliberately misread. The further contention of the petitioner is that the enquiry officer did not record any finding on this aspect. Therefore, the charge has to be held as not proved. 14. The disciplinary authority at the stage of passing final order, records a different finding on charge no.3, which is not recorded by the enquiry officer. The grievance of the petitioner is that the disciplinary authority relied on the statement of Mr.P.Suresh Babu, Attender, to come to the conclusion that the imposter was not physically present in the office. The contention of the petitioner is that the said Suresh Babu, was not cited as witness during the course of enquiry and that the petitioner was not given the opportunity of testing the correctness of the statement made by him during the course of enquiry. As the said witness was not examined during the course of enquiry, the disciplinary authority ought not have relied on his statement. The case of the petitioner is that merely because the said Suresh Babu, who is working as Attender, stated that he did not see the imposter in the court signing and receiving the pass book, his statement cannot be believed and on the contrary, the record of the court on cheque petitions, show that Ranjit Malhotra (imposter) attended the Court. Furthermore, the said Suresh Babu, is attached to the office of the Superintendent and is not always available in the office and, therefore, his statement cannot be believed. 15. The disciplinary authority varied with the finding of the enquiry officer on the crucial aspect. Further, in the notice dated 17.3.2007, issued by the disciplinary authority, it is not mentioned that it is not agreeing with the finding of the enquiry officer. Therefore, the contention of the petitioner is that, recording findings different from that of the enquiry officer, at the stage of passing final order, is illegal and is in violation of the principles of natural justice. 16.
Therefore, the contention of the petitioner is that, recording findings different from that of the enquiry officer, at the stage of passing final order, is illegal and is in violation of the principles of natural justice. 16. The other grievance of the petitioner is that the decision to recovery the alleged loss caused to public funds, also amounts to taking decision contrary to the findings of the enquiry officer in the reported dated 31.5.2007. Therefore, the case of the petitioner is that it is a clear case of non-application of mind. 17. In the affidavit, the petitioner further averred that mere issuance of the pass book is not the root cause for the fraud of illegal withdrawal of money. The genesis to the problem arose from the time of opening of the bank account with a false declaration, presenting the cheque petition, passing of the orders by the Court and withdrawal of the amount with false declaration. He stated that whether the pass book is returned or not, the cheque has to be dispatched to the bank for crediting to the account of judgment-debtor in the cheque petition. Once amount is credited, there are ways and means to withdraw the amount and it is not always necessary to carry the pass book. The case of the petitioner is that he is not responsible for the loss caused and thus the amount cannot be ordered to be recovered from him. 18. It is further stated that the there is clear discrimination in dealing with disciplinary action against judicial officer and the petitioner. The evidence on record would show that the Presiding Officer passed orders in the cheque petition, as if the judgment-debtor attended before him and that he identified him. If the statement of Mr. Suresh Babu is treated as true version of the incident, then it would equally establish the guilt of the Presiding Officer, since he could not have passed the cheque petition without the presence of the judgment-debtor. The contention of the petitioner is that the Presiding Officer is visited with minor penalty, whereas he was imposed the punishment of dismissal from service With these averments inter alia, the impugned proceedings imposing the punishment of dismissal from service and ordering recovery of the money, is sought to be set aside. 19. The 2nd respondent – Principal District and Sessions Judge, filed counter affidavit.
19. The 2nd respondent – Principal District and Sessions Judge, filed counter affidavit. In the counter affidavit, while denying the averments of the petitioner in the writ affidavit, it is stated that the enquiry officer has acted in accordance with the provisions as contemplated under A.P.Civil Services (Classification, Control and Appeal), Rules 1991 and imposed penalty of dismissal of the writ petitioner from service. It is stated that the petitioner in his sworn statement recorded on 1.10.2005, stated that he had not made any entries in the cash book, which was marked as Ex.P-5, which corroborated with the report submitted by the enquiry officer and hence the charge in this regard, is held to be proved. The then District Judge at the relevant time, recorded the statement of the writ petitioner on 1.10.2005 and 3.10.2005, which is marked as Ex.P-50, in which he clearly admitted the facts as recorded by the learned enquiry officer at paragraph XV of his report and the statement of Smt. Rajeshwarai is Ex.P-29 and hence the contention of the petitioner that the Ex.P-50 is not his statement, is incorrect. As the charges 1 and 3 leveled against the petitioner are proved, he was imposed with the punishment of dismissal from service. With regard to non-examination of P.Suresh Babu, it is stated that though the petitioner had the opportunity to disprove the same, he did not take any steps. 20. With regard to recovery of the amount, it is stated that the disciplinary authority based on the record and in concurrence with the enquiry report, held that the charges leveled against the petitioner along with one Y.Lakna Reddy, are proved and hence ordered recovery of the embezzled amount and the fixed the liability on the petitioner along with Y.Lakna Reddy jointly and severally. With these averments and supporting the action taken in the impugned proceedings, the writ petition is sought to be dismissed. 21. The learned counsel appearing for the petitioner submitted that the 1st charge relates to non-maintaining of the proper accounts by the petitioner. He submitted that as the petitioner was not having knowledge and experience in dealing with accounts and as he never worked in the accounts department, he could not maintain the proper accounts and subsequently the same were updated and this is also born out of record.
He submitted that as the petitioner was not having knowledge and experience in dealing with accounts and as he never worked in the accounts department, he could not maintain the proper accounts and subsequently the same were updated and this is also born out of record. He contended that this has to be taken as a procedural lapse and no motive can be attributed for this procedural lapse. He contended that every act does not constitute misconduct, and in the present case due to lack of knowledge in accounts wing, the lapse has occurred and this cannot be construed as misconduct. In support of this contention, he relied on the judgments of the Apex Court reported in UNION OF INDIA v. J.AHMED ( AIR 1979 SC 1022 ). 22. Nextly he contended that the third charge relate to handing over of the pass book to the imposter else where than in the court. But there is no specific finding on this charge. For this charge, the enquiry officer noted that the statement of the petitioner and came to the conclusion that the petitioner joined hands with the imposter and his Advocates, having knowledge that the impersonator is not Ranjit Malhotra. He contended that this finding is based on no evidence and that the finding is unrelated to the charge. He contended that there is no evidence or specific finding that the petitioner handedover the pass book to impersonator and his Advocate elsewhere. Therefore, it has to be held that the charge is not proved, but on the contrary and in an arbitrary manner, the finding is recorded holding that the petitioner is guilty. He contended that the disciplinary authority while giving notice to the petitioner along with the enquiry report, has not indicated that it is differing with the finding of the enquiry officer. On the contrary, while concurring with the finding of the enquiry officer on this aspect, the disciplinary authority had taken into consideration the evidence of P.W.10, the then in-charge District Judge, before whom the petitioner is alleged to have stated under Ex.P-50 that the person who impersonated as Ranjit Malhotra did not appear in the open court for identification purpose before the Presiding Officer and that the imposter came to the section and appeared before him and signed as Ranjit Maljotra, but he did not question his identity and simply returned the pass book to him.
He further contended that the disciplinary authority has also taken into consideration the evidence of one Mr.P.Suresh Babu, Attender, whose statement was recorded by the District Judge (P.W.10) and in that statement, the Attender made clear that either on 5.9.2005 or on 6.9.2005, the said Ranjit Malhotra, did not appear or attend the court at all. He contended that the said Suresh Babu, Attender, who gave statement before P.W.10, was not examined during the course of enquiry and thus the petitioner had no opportunity to cross-examine him. The said Suresh Babu gave statement before P.W.10 and based on his statement, P.W.10 stated that impersonator did not attend the court. The learned counsel contended that the evidence of P.W.10, is only a hearsay evidence and hence the statement of Suresh Babu, cannot be relied upon. Therefore, relying upon hearsay evidence and not brining the witness during the course of enquiry, amounts to violation of principles of natural justice. He contended that the alleged statement of Suresh Babu, has influenced the disciplinary authority, to come to a conclusion that the to pass book was handed over to impersonator and his advocate else where than in the court. As the said Suresh Babu was not examined, his statement given before P.W.10, cannot be relied upon. He further contended that even a perusal of the entire evidence of P.W.10 does not disclose that P.W.10 has deposed anything about the petitioner based on the statement of Suresh Babu. Therefore, the finding of the disciplinary authority, is based on no evidence. He further contended that the evidence and finding of the enquiry officer is to the effect that the impersonator along with his advocate came to the accounts section and the petitioner handed over the pass book. When this is the evidence and finding, the conclusion of the disciplinary authority, while accepting the report of the enquiry officer, that petitioner handed over the pass book else where than in the court, is contrary to the material on record. The other finding is that the petitioner himself admitted that the impersonator did not appear in the court.
When this is the evidence and finding, the conclusion of the disciplinary authority, while accepting the report of the enquiry officer, that petitioner handed over the pass book else where than in the court, is contrary to the material on record. The other finding is that the petitioner himself admitted that the impersonator did not appear in the court. The petitioner is dealing with the accounts section and he may not be aware about the proceedings in the court hall and hence his statement that the impersonator did not attend the court cannot be taken, since such statement is contrary to the evidence on record and moreover the identification of the party is the duty of the court and that of Superintendent (A.O.), i.e.., Lakna Reddy (D-1) and that of the Principal Senior Civil Judge, who dealt with the cheque petition. Since the photo and the signature in the pass book tallied with the impersonator and that the signature was attested his advocate, and that there is no procedure of identification of the party in the accounts department, the pass book was returned to the impersonator. In these circumstances, allegation that the petitioner failed to identify the impersonator and simply returned the pass book, is without any substance, and this solitary circumstance, cannot be taken to say that the charge is proved. He contended that mere return of the pass book, is of no use and the issuance of the cheque is the criterion and in the present case, after ordering of the cheque petition, the cheque has been sent to the bank by a covering letter and thereafter the cash had been withdrawn. In this entire episode, the role of the petitioner, who is working in the accounts department, is only to the extent of issuing pass book and nothing more and for this no motive can be attributed. 23.
In this entire episode, the role of the petitioner, who is working in the accounts department, is only to the extent of issuing pass book and nothing more and for this no motive can be attributed. 23. In support of his contention that non-examination of Suresh Babu during the course of enquiry and relying on the evidence of P.W.10, before whom Suresh Babu is alleged to have stated that impersonator did not attend the court, amounts to violation of principles of natural justice and the evidence of P.W.10 amounts to hearsay evidence on this aspect and that such a course cannot be adopted, he relied on the judgment of the Apex Court reported in MEENGLAS TEA ESTATE v. THE WORKMEN ( AIR 1963 SC 1719 ), UNION OF INDIA v. GYAN CHAN CHATTAR (2009)12 SCC 78 ), SURE ENAMEL AND STAMPING WORKS LTD. v. THE WORKMEN ( AIR 1963 sc 1914 ) and STATE OF UTTRANCHAL v. KHARAK SINGH (2008)8 SCC 236 ). 24. Therefore, he contended that since the findings of the disciplinary authority are based on no evidence and unrelated to the charge, this court can exercise its judicial review under Article 226 of the Constitution of India. In support of this contention, he relied on the judgments of the Apex Court reported in KULDEEP SINGH v. COMMISSIONER OF POLICE (1992)2 SCC 10). He also contended that only on the suspicion, the finding is recorded that the petitioner handed over the pass book else than in the court. He contended that mere suspicion cannot take the place of proof and that mere production of the statement of Suresh Babui, without examining him, will not amount to proving his statement and his statement has to be proved by examining him and considering the relevant documents. He contended that this amounts to violation of the principles of natural justice. In support of his contention, he relied on the judgment of the Apex Court reported in ROOP SINGH NEGI v. PUNJAB NATIONAL BANK (2009)2 SCC 570 ). 25. In view of the above, the learned counsel contended that the finding of the enquiry officer that the petitioner is guilty of the charge no.3 is based on no evidence and hence the same is liable to be set aside. 26.
25. In view of the above, the learned counsel contended that the finding of the enquiry officer that the petitioner is guilty of the charge no.3 is based on no evidence and hence the same is liable to be set aside. 26. With regard to recovery proceedings in Dis.No.3639/2007 dated 21.6.2007, the learned counsel submitted that by the said proceedings, the petitioner is made liable to pay jointly and severally along with D-1 an amount of Rs.24,55,600/- on the ground that the petitioner is also responsible for causing loss of public money and its defalcation. In the proceedings it is further stated that the order of recovery of the amount cannot be constructed as punishment in view of G.O.Ms.No.33, Finance (TFR.I) Department dated 9.2.2006. He contended that the impugned proceedings dated 21.6.2007 are illegal and arbitrary and contrary to the evidence on record. 27. He stated that a specific charge no.5 has been framed against the petitioner for causing loss to the public money under Articles 5, 273 and 300 of A.P. Financial Code. On this charge, the enquiry officer has categorically recorded finding of fact that the loss was not caused to the public money due to improper maintenance of accounts and that the loss was caused only due to the negligence and failure on the part of D-1 and the Presiding Officer in identifying the J.Dr. Sri Ranjit Malhotra and that the part played by the petitioner is not significant when compared to the acts done by D-1; that moreover the head of the office including P.W.10 did not take any steps for recovery of the amount as per the provisions of A.P.Financial code. Under these circumstances, the enquiry officer concluded that this charge is not proved against D-2. The said finding also has been concurred with the disciplinary authority. Therefore, the learned counsel for the petitioner contended that when there is specific finding that the petitioner is not responsible for loss caused to the public money, again imposing the liability on the petitioner to pay the amount, is nothing but non-application of mind and contrary to the findings and the evidence on record and, hence the impugned proceedings, with regard to recovery of the amount, is also liable to be set aside. 28.
28. Eventually, the learned counsel contended that the charge no.1 that is proved against the petitioner is with regard to failure in maintaining the P.D. Cash Book in that Court from 1.4.2005 to 29.9.2005. The petitioner has also admitted that due to lack of knowledge in accounts, he could not maintain the P.D. cash book and subsequently the same was updated and further while considering the charge no.5, the enquiry officer has categorically recorded finding of fact that loss was not caused to the public money due to improper maintenance of accounts and that he is not responsible for the loss and the charge was also held to be not proved. Therefore, in these circumstances, the learned counsel contended that the improper maintenance of P.D. cash book has to be taken only as a minor procedural lapse, which was rectified later and due to which no loss has to been caused and hence, in view of these circumstances, the learned counsel contended that the imposition of punishment of removal from service is grossly disproportionate to the charge proved and the same is required to be set aside by exercising the judicial review under Article 226 of the Constitution of India. In support of this contention, the learned counsel relied on the judgment of the Apex Court reported in COIMBATORE DISTRICT CENTAL COOP. BANK v. EMPOYEES ASSN (2007)4 SCC 669 ). 29. With these contentions, the learned counsel sought to set aside the impugned proceedings and to grant reinstatement to the petitioner with all consequential benefits. 30. On the other hand the learned Standing Counsel Smt. M.Bhaskara Lakshmi, appearing for the respondents, while narrating the facts noted above, contended that the petitioner has not maintained the cash book properly and this had lead to the confusion and further he admitted under Ex.P-50 statement to P.W.10 that he handed over the pass book, knowing that the recipient of the pass book is an impersonator of Ranjit Malhotra and that he did not properly identify him. She further contended that the said findings of fact recorded by the enquiry officer, which were accepted by the disciplinary authority, cannot be interfered with by this court by reassessing the evidence on record.
She further contended that the said findings of fact recorded by the enquiry officer, which were accepted by the disciplinary authority, cannot be interfered with by this court by reassessing the evidence on record. She contended that sufficiency or otherwise of the evidence, cannot be gone into by this court and in departmental enquiry, preponderance of probabilities have to be considered and strict rules of evidence, cannot be made applicable and in the present case, the petitioner is found to have joined hands with other delinquent employee and the advocate on record and thus caused loss to the public money. She further contended that admittedly there is loss to the public money and the petitioner who is in the accounts department, is expected to maintain cash book correctly and though he is found to be not responsible to the public money and, loss caused to the public money, the impugned order ordering recovery of the amount is not a punishment in view of G.O.No.33 and the A. P. Financial Code. With these averments the writ petition was sought to be dismissed. 31. In view of the above rival contentions, the following points would arise for our consideration: 1. Whether the findings recorded by the enquiry officer on charges 1 and 3 are based on evidence? 2. Whether the impugned proceedings dated 21.6.2007 passed by the disciplinary authority saddling liability on the petitioner along with D-1 for recovery of the amount, is justified, when the specific finding of the enquiry officer is that the petitioner has not caused the loss to the public money and that the charge no.5 in this regard, is held to be not proved? 3. Whether the punishment imposed is not proportionate to the charges found proved against the petitioner? 32. Before considering the above issues it is necessary to first briefly note the facts of the case. One M/s Sri Krishna Agencies filed suits in O.S.Nos.65/1997 and 24/1998 on the file of Senior Civil Judge’s Court at Suryapet, against M/s Olmpia Gas Pvt. Ltd., to which one Ranjit Malhotra was one of the Directors. The suits were filed for recovery of the security deposit of Rs.4,00,000/- and Rs.2,29,773/- respectively and the suits were decreed ex parte.
One M/s Sri Krishna Agencies filed suits in O.S.Nos.65/1997 and 24/1998 on the file of Senior Civil Judge’s Court at Suryapet, against M/s Olmpia Gas Pvt. Ltd., to which one Ranjit Malhotra was one of the Directors. The suits were filed for recovery of the security deposit of Rs.4,00,000/- and Rs.2,29,773/- respectively and the suits were decreed ex parte. The said decrees were transferred to the court of Principal Senior Civil Judge’s Court, Rangareddy for execution and accordingly on an application filed for execution of the decrees in E.P.Nos.144 and 145 of 1999, the land to an extent of Ac.1-37 guntas at Bachupally of Rangareddy District, belonging to the respondent – company, was brought to sale and it was purchased by one Prabhakar Reddy, who was the highest bidder in the court auction, for Rs.41,20,000/-. After payment of the decretal amount, the remaining balance of Rs.30,90,000/- was kept in fixed deposit in the shape of Vikas Cash Certificates in Syndicate Bank, Manchal Branch. 33. While so, a petition in E.A.No.181/2005 was filed in the name of Ranjit Malhota, who is the judgment-debtor in the suits, for withdrawal of the amount lying in the bank. Prior to the filing of the E.A.No.181/2005, account bearing no.11579 was opened by the imposter in the name of Ranjit Malhotra and the said account holder was introduced by one Pratap Reddy, Advocate. It is alleged that E.A.No.181/2005 was processed by Y.Lakna Reddy the Superintendent of the Court and by the petitioner. After allowing of the E.A., cheque bearing no.473237 dated 6.9.2005 for a sum of Rs.32,75,450/- was received from the court and it was credited to the account no.11579 opened by the imposter and thereafter it was withdrawn. 34.
It is alleged that E.A.No.181/2005 was processed by Y.Lakna Reddy the Superintendent of the Court and by the petitioner. After allowing of the E.A., cheque bearing no.473237 dated 6.9.2005 for a sum of Rs.32,75,450/- was received from the court and it was credited to the account no.11579 opened by the imposter and thereafter it was withdrawn. 34. In the above episode, five charges against the petitioner are that he failed to .maintain cash book; that though he has knowledge about filing of E.A.Nos.204 and 205 of 2005, for stopping the payment under E.A.No.181/2005, he kept quiet and allowed ordering of the cheque petition, in the absence of the party and advocate and without proper identification; that though the imposer and his advocate did not attend the court, he handed over the pass book and obtained their signatures elsewhere than in the court; that he prepared covering letter to send the cheque in E.P.No.144/05 for Rs.32,75.450/- , though there is no specific order from the Presiding officer and; that he failed to maintain all financial transactions accurately and thereby liable for loss caused under A. P. Financial Code. Out of the five charges, only charges 1 and 3 i.e., with regard to non-maintain the cash book properly and handing over of the pass book to the imposter and his advocate elsewhere than in the court, are proved. The rest of the charges are not proved. 35. Before considering the contentions of the respective counsel, it is required to notice that this court under Article 226 of the Constitution of India, will not normally interfere with the findings of the enquiry officer and sit as appellate authority. But if such findings are based on no evidence or that such findings could not be reached by an ordinary prudent man or that the findings are perverse or in violation of the principles of natural justice, this court will interfere with such findings and set aside the same. 36.
But if such findings are based on no evidence or that such findings could not be reached by an ordinary prudent man or that the findings are perverse or in violation of the principles of natural justice, this court will interfere with such findings and set aside the same. 36. Before dealing with the first issue, it is necessary to extract charge no.3 for better appreciation as under: “That Sri A.C.Ravindran, Senior Assistant, falsely claimed that on 6.9.2005 he handed over Pass Book to the imposter Sri Ch.Prabhakar Reddy, after taking his signature and the signature of his counsel Sri G.Pratap Reddy, in the Section, though in fact both of them have not attended the Court at all and Sri A.C.Ravindran, has taken the signature else where than in the Court. Sri A.C.Ravindran, by the above mischievous act, committed breach of Trust imposed on him by joining hands with the imposter and his counsel and others and that he is not honest, diligent, faithful and failed to maintain absolute integrity and contravened Rule 3 of A. P. Civil Services (Conduct) Rules, 1964 and rendered himself liable for disciplinary proceedings under Rule 20 of APCS (CCA) Rules, 1991.” 37. The above charge is that the petitioner handed over the pass book to the imposer and his advocate elsewhere than in the section. The explanation of the petitioner is that the imposer Ch.Prabhakar Reddy visited the section and the pass book has been handed over to him on 6th September, 2005, when he was duly identified by his counsel. 38. From the above statement of the petitioner it is clear that he handed over the pass book to the impersonator on his identification by his counsel. At this juncture, the procedure that is being followed in filing cheque petitions is required to be noticed. The evidence of P.W.8 who worked as Bench clerk in the Principal Senior Civil Judge, Rangareddy District, throws light on this aspect. He narrated the procedure during his tenure from October, 2001 to October, 2005. He stated that after filing of cheque application, he used to send the same to the accounts section for verification of the deposited amount.
The evidence of P.W.8 who worked as Bench clerk in the Principal Senior Civil Judge, Rangareddy District, throws light on this aspect. He narrated the procedure during his tenure from October, 2001 to October, 2005. He stated that after filing of cheque application, he used to send the same to the accounts section for verification of the deposited amount. After receiving the endorsement from the accounts section, he used to send the same to the Superintendent, D-1, to put up the same before the Presiding Officer and; that after checking the petition, D-1 used to place the same before the Presiding Officer for orders. Then the Presiding Officer used to give a date for appearance of the party before the Court. He used to call the cheque petitions on the adjourned date. After appearance of the party, the Presiding Officer used to verify the photo enclosed to the petition with the person appeared before the Court for identification and then the petition will be sent to the Superintendent for verification of the record, particularly about the identity of the party. The superintendent D-1, used to make a note on the petition about his satisfaction of the identity of the party and then place before the Presiding Officer for passing final orders. To show that the above procedure was followed in their court, P.W.8 got marked copies of the cheque petitions filed under Exs.P-31 to P-36. The identification of the party is mainly on the Superintendent D-1 and on the Presiding Officer and the role of the petitioner, who is working in the accounts section is very negligible and no procedure is also spoken to by P.W.8 about the identification of the party in the accounts section. Further the charge is that the petitioner handed over the pass book elsewhere. Issuance of the pass book is of no use and the cheque is the main criteria. As already noted above, his version both in his evidence and in his explanation is that he returned the pass book to the impersonator on his identification by his counsel. From a perusal of the enquiry report and the findings on the charge no.3, it could be seen that no finding is recorded that the petitioner handed over the pass book elsewhere than in the court.
From a perusal of the enquiry report and the findings on the charge no.3, it could be seen that no finding is recorded that the petitioner handed over the pass book elsewhere than in the court. Therefore, the finding of the enquiry officer, on charge no.3, is without any basis and it is alien to the charge framed. It is settled principle of law that the enquiry officer has to record specific finding on the charge that is framed against the delinquent and he cannot record finding unrelated to the charge. 39. Nextly, it is to be noticed that the disciplinary authority while holding the charge no.3 as proved, noticed that there is evidence of Mr.P.Suresh Babu, attender, recorded by the then learned District Judge (P.W.10) and in that statement, the Attender made clear that either on 5.9.2005 or on 6.9.2005, the said Ranjit Malhotra did not appear or for that matter did not attend the court at any time. He further stated that Mr.A.C.Ravindran, instructed him to take the cheque to the bank. But he did not state whether the imposter was present or not when Mr.A.C.Ravindran asked him to take the cheque to the Bank. Considering the statement of Suresh Babu, under Ex.P-53, the appellate authority held that the imposter was not at all present, when cheque issue order was passed and dispatched and an inference can safely be drawn that the charged employee in collusion with the imposter and his advocate dispatched the cheque and that the charge is therefore, held proved against him. 40. Firstly it is to be noticed that the appellate authority has relied on the statement of Suresh Babu, who was working as Attender, for coming to the conclusion that the imposter and his advocate did not attend the court at any time. The said Suresh Babu who gave statement under Ex.P-53, was not cited as witness in the enquiry proceedings. It is to be conspicuously noted that when the department is relying on the statement of the said Suresh Babu, he ought to have been examined, and then there would have been opportunity for the petitioner to cross-examine him about his statement under Ex.P-53. Further, the case of the petitioner is that the said Attender is attached to the office of the Superintendent and hence his statement cannot be believed.
Further, the case of the petitioner is that the said Attender is attached to the office of the Superintendent and hence his statement cannot be believed. As Suresh Babu who gave statement under Ex.P-53 is not examined by the Department, it has to be held that the petitioner lost the opportunity to cross-examine him and hence non-examination of Suresh Babu, is fatal to the case of the Department. 41. Furthermore, it is to be noticed that P.W.10, is stated to have deposed based on the statement of Suresh Babu under Ex.P-53. Therefore, the evidence of P.W.10 based on the statement of Suresh Babu, amounts to hearsay evidence, because the said Suresh Babu was not examined and non-examination of Suresh Babu and relying on his statement to come to a conclusion, would amount to violation of principals of natural justice, since much prejudice is caused to the petitioner, as the charge in this regard is held proved. 42. The Apex Court in the decision reported in CENTRAL BANK OF INDIA v. P.C.JAIN ( AIR 1969 SC 983 ) held that domestic tribunals, like an enquiry officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged, are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. The relevant portion of the judgment relating to the facts and conclusions, is extracted as under: “9. However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer were perverse. The Tribunal gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified.
However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer were perverse. The Tribunal gave the reason that these findings were based on hearsay evidence. This view taken by the Tribunal appears to be fully justified. The first and third elements of the charge relating to payment of the sum of Rs.30,400 to the respondent by Nand Kishore and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N.N.Vazifdar, but the latter could not give any direct evidence, as he was not present at the time when money was paid to the respondent or when the respondent left Muzaffarnagar. He proposed to prove these elements of the charge by depending that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs.30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons. The Enquiry Officer accepted this evidence of Vazifdar, but ignored the fact that Vazifdar’s evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nan Kishroe which, as rightly held by the Tribunal, would amount to hearsay evidence. Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive evidence, he made no statement that this sum of Rs.30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the company of some persons to retire the bills drawn by M/s Gupta Iron Industries. In fact, Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar. The Enquiry officer was, of course, titled to form his own opinion and to believe Vazifdar in preference to Nand Kishore; but on this basis, the only finding that the domestic tribunal could record was that Nand Kishor’s statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar.
The Enquiry officer was, of course, titled to form his own opinion and to believe Vazifdar in preference to Nand Kishore; but on this basis, the only finding that the domestic tribunal could record was that Nand Kishor’s statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar. Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge. It is in this connection that importance attached to the views expressed by this Court in the cases cited above where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. In fact, learned counsel for the appellant Bank was unable to put out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its finding on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.” (Emphasis added) 43. From the above judgment of the Apex Court it is clear that if a fact sought is proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of a person charged, are not be treated as substantive evidence. 44.
From the above judgment of the Apex Court it is clear that if a fact sought is proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of a person charged, are not be treated as substantive evidence. 44. In the present case, as already noted above, the charge no.3 is held to be proved by the appellate authority based on the statement of Suresh Babu under Ex.P-53, who was not cited as witness and not examined by the enquiry officer in the presence of the petitioner. Therefore, when serious charges are being examined, strict adherence shall be made to the principles of natural justice and they cannot be held proved relying only on hear say evidence. In view of the above extracted portion of the judgment of the Apex Court, it is to be held recording finding on charge no.3 based on the statement under Ex.P-53, which examining the author of the statement, is clear violation of the principles of natural justice. The Apex Court in the decision reported in UNION OF INDIA v. GYAN CHAND CHATTAR (2009)12 SCC 78 ), while dealing with charges of bribery against the respondent therein, held that serious charges like bribery, cannot be proved on mere probabilities and hearsay evidence and that strict adherence to statutory principles and natural justice are essential. 45. Apart from the above, this court has perused the entire evidence of P.W.10, and it could be seen that no where he deposed that Suresh Babu stated before him that Ranit Malhotra did not appear in the court. He also deposed that he recorded the statement of P.Suresh Babu on 3.1.2005 which is marked as Ex.P-53. As already stated above, if the department sought to rely on Ex.P-53, it ought to have examined the author of Ex.P-53 and proved its contents. In the absence of proving Ex.P-53, merely placing reliance on the said document and finding the petitioner guilty of the charge, cannot be sustained. 46.
As already stated above, if the department sought to rely on Ex.P-53, it ought to have examined the author of Ex.P-53 and proved its contents. In the absence of proving Ex.P-53, merely placing reliance on the said document and finding the petitioner guilty of the charge, cannot be sustained. 46. Another factor to be noticed is that the charge no.3 is that the petitioner falsely claimed that on 6.9.2005 he handed over Pass Book to the imposter Sri Ch.Prabhakar Reddy, after taking his signature and the signature of his counsel Sri G.Pratap Reddy, in the Section, though in fact both of them have not attended the Court at all and Sri A.C.Ravindran, has taken the signature else where than in the Court. To this charge, the disciplinary authority recorded finding relying on the statement of Suresh Babu under Ex.P-53 that “Therefore, the imposter was not at all present when cheque issue order was passed and dispatched and an inference can safely be drawn that the charged employee in collusion with the imposter and his advocate dispatched the cheque. Hence the charge is therefore held proved against him.” As already noted above, this finding is unrelated to the charge. Further under charge IV, the finding of the enquiry officer is that “. . I have already stated that when there is no stay order from the court, D-2 has to send the cheque to the concerned bank, even though he had knowledge about the claim petition or stay petition. Therefore, D-2 is not liable for disciplinary action simply because he prepared a covering letter to send the cheque to the petitioner.” In the light of the finding of the enquiry officer under charge no.4, the above finding of the disciplinary authority that the charged employee in collusion with the imposter and his advocate dispatched the cheque, is without any basis and it is based on no legal evidence and is liable to be set aside. 47. With regard to the admission of the petitioner that he had not the taken the signature of Ch.Prabhakar Reddy or that of his counsel Sri G.Pratap Reddy in the section, is concerned, it is to be noticed that the petitioner has denied that he made such admission. The statement of Suresh Babu is that the said persons did not attend the court at all.
The statement of Suresh Babu is that the said persons did not attend the court at all. The said statement, which is relied by the disciplinary authority, is eschewed from consideration in the light of the law laid down by the Apex Court (9 supra), since he was not examined during the course of enquiry. Further the evidence on record would show that the Presiding Officer passed orders in the cheque petition, as if the judgment-debtor attended before him and identified as Ranjit Malhotra. Therefore, the admission of the petitioner, which is contrary to the material evidence on record, cannot enure to the benefit of the Department. 48. In view of the above discussion, we are of the considered view, that the finding of the enquiry officer as concurred by the appellate authority holding the petitioner guilty of charge no.3 is based on no legal evidence and the same is liable to set aside and accordingly set aside. 49. The charge no.1 relates to improper maintenance of accounts. The petitioner has admitted the same and gave explanation that due to inexperience in dealing with accounts wing, he could not maintenance the accounts property. The finding of the enquiry officer on charge no.5 with regard to loss of the public money is that loss was not caused to the public money due to improper maintenance of accounts. The loss was caused only due to the gross negligence and failure on the part of D1 and the Presiding Officer in identifying the J.Dr. Sri Ranjit Malhotra. Therefore, we are of the considered view that though the charge in this regard is held proved, it has to be held that this is not a serious charge and has to be considered while dealing with quantum of punishment. The issue no.1 is accordingly answered. 50. Coming to the 2nd issue with regard to the recovery proceedings issued by the disciplinary authority in Dis.No.3639/2007 dated 21.6.200,7 is concerned, it is necessary to look into provisions under Articles 5, 273 and 300 of the A. P. Financial Code, G.O.Ms.No.33 Finance (TFR.I) Department dated 9.2.2006 and the finding of the enquiry officer, which is accepted by the disciplinary authority on charge no.5 famed in this regard.
The relevant provisions are extracted as under: Article 5: Every Government servant should see that proper accounts are maintained for all Government financial transactions with which he is concerned and render accurately and promptly all such accounts and return relating to them as may departmental authorities. He should check the accounts as frequently as possible in order to see that his subordinates do not commit fraud, misappropriation or any other irregularity. The Government will hold him personally responsible for any loss that may be found to be due to any neglect of the duties upon him by the provisions of this Code and the other Financial Codes issues by the Government. The fact that a Government servant has been misled or deceived by a subordinate will in no way mitigate his personal responsibility, since every Government servant should be familiar with the financial rules laid down by the government and exercise a specially strict and close control over his subordinates, in regard to the use of public funds and the maintenance of proper accounts. Article 273:- The Government will hold a Government servant personally responsible for any loss sustained by the Government through fraud or negligence on his part and also for any loss through fraud or negligence on the part of any other Government servant to the extent to which it may be show that he contributed to the loss by his own action or negligence. Article 294:- When any facts indicating that defalcation or loss of public money, stamp opinion, stores or other movable or immovable property has occurred or that a serious account irregularity has been committed come to the notice of any Government servant, he should inform the head of the office immediately. If it appears to the head of the office prima facie that there has been any such occurrence which concerned his office or in which a Government servant subordinate to him is involved, he should send a preliminary report immediately to the Accountant-General, and through the proper channel, to the head of the department. On receipt of the information, the head of the department should report the matter to the Government without delay. Losses involving embezzlement, serious irregularities, etc. should be reported by the Government servant concerned to higher authorities irresponsive of amount involved.
On receipt of the information, the head of the department should report the matter to the Government without delay. Losses involving embezzlement, serious irregularities, etc. should be reported by the Government servant concerned to higher authorities irresponsive of amount involved. After sending the preliminary reports, the head of the office should investigate the matter fully without delay and take all necessary further action see Articles 300 to 302. As soon as the investigation is complete he should send a complete and detailed final report to the Accountant – General and, through the proper, channel to the head of the department describing the nature and extent of the loss or account irregularity and the circumstances (including any breach or neglect of an existing rule) which made it possible to recover it in any way. The report should also state what disciplinary action has been taken or is recommended against the Government servant responsible and what steps have been taken or are recommended with a view to prevent the recurrence of any such loss or account irregularity. Article 300: The following general principles should be followed in enforcing the personal responsibility of the government servant or servants concerned for a loss sustained by the government of the kind mentioned in the first paragraph of Article 273, and of any person for a loss sustained by Government by on account of a criminal offence committed by him. 1. . . 2. . . . 3. (a). . (b) Whenever a loss is held to be due to fraud on the part of a Government servant or servants, every endeavors should be made to recover the whole amount lost from the guilty persons. If the failure of a superior officer to exercise proper supervision and control has facilitated the fraud, he should be called strictly to account and suitably dealt with after carefully assessing his personal liability in the matter, e.g., by recovering from him in money a suitable proportion of the loss, or by stopping his increments or reducing the pay. 4. (a). . (b). . . (c) . . . (d) Recovery from the Government servant for the losses by misappropriation of Government money shall be, recovery of the misappropriated amount/loss caused at bank rate as fixed by RBI + 2% (This is actual cost of funds for State Government).
4. (a). . (b). . . (c) . . . (d) Recovery from the Government servant for the losses by misappropriation of Government money shall be, recovery of the misappropriated amount/loss caused at bank rate as fixed by RBI + 2% (This is actual cost of funds for State Government). The loss/misappropriation shall be determined by the disciplinary authority as per rules, and the recovery proposed is at the cost of funds for the Government and it may not be punishment.” 51. From a reading of the above provisions it is clear that the Government Servant can be found personally responsible is any loss is caused due to fraud or negligence on his part and further as per the sub clause (d) of clause 4 of Article 300 it is clear that recovery can be made from the Government servant for the losses by misappropriation of Government money at the bank rate of interest as fixed by the R.B.I. +2% and such loss shall be determined by the disciplinary authority as per rules and that recovery proposed is at the cost of funds for the Government and it may not be punishment. 52. In the present case the allegation with regard to loss caused to the Government funds, is mainly against the superintendent of the court i.e., D-1 Lakna Reddy. The finding of the enquiry officer against the said Lakna Reddy on this charge is as under: “It is contended on behalf of D-1 that this charge is not preceded by the investigation contemplated by Article 294 of the Finance Code and moreover Article 5 of the Financial Code covers the Presiding Officers also. It is further contended that the loss was caused only due to non identification of the petitioner in E.A.No.202/2005. I find some force in the said contention. Even though D1 has facilitated for issuing the cheque to the advocate without proper identification of the party, the gross negligence on the part of the Presiding Officer definitely contributed to the loss caused to the Public money. It is stated by P.W.10 that the Prl. Sr. Civil Judge, did not send any report to the Accountant General as required under Article 294 of Financial Code. Likewise he did not submit any such report to the Hon’ble High Court nor taken any steps to recover the money either from Sri G.Pratap Reddy or Prabhakar Reddy.
It is stated by P.W.10 that the Prl. Sr. Civil Judge, did not send any report to the Accountant General as required under Article 294 of Financial Code. Likewise he did not submit any such report to the Hon’ble High Court nor taken any steps to recover the money either from Sri G.Pratap Reddy or Prabhakar Reddy. Hence, it cannot be concluded that D1 alone is accountable for the loss caused and that he is only liable to pay the loss caused to the Public money.” 53. From the above finding of the enquiry officer it is clear that the negligence on the part of the Presiding Officer in identifying the party, contributed to the loss caused to the public money and D-1 also facilitated for issuing the cheque to the advocate without proper identification and, therefore, the D-1 alone was not held accountable for loss caused and that he is made only liable to pay the loss caused to the public money. 54. But as far as the petitioner is concerned, on the allegation under charge no.5 against the petitioner with regard to loss caused by his negligence, the enquiry officer recorded finding as under: “I have discussed about this article of Financial Code while considering the charge against D1. First of all the loss was not caused to the public money due to improper maintenance of accounts. The loss was caused only due to the gross negligence and failure on the part of D1 and the Presiding Officer in identifying the J.Dr. Sri Ranjit Malhotra. The part played by D2 is not significant when compared to the acts done by D1. Moreover, the head of the office including P.W.10 did not take any steps for recovery of money as per the provisions of A.P.Financial Code. Therefore, I must conclude that this charge is not proved against D2.” 55. Considering the above provisions under the Financial Code and the findings of the Enquiry Officer, it is clear that the saddling the liability on the petitioner along with D-1 – Lakna Reddy,in recovery of the amount fraudulently withdrawn, is contrary to the provisions of the A.P.Financial Code and the findings of the enquiry officer.
Considering the above provisions under the Financial Code and the findings of the Enquiry Officer, it is clear that the saddling the liability on the petitioner along with D-1 – Lakna Reddy,in recovery of the amount fraudulently withdrawn, is contrary to the provisions of the A.P.Financial Code and the findings of the enquiry officer. Therefore, the impugned proceedings in Dis.No.3639/2007 dated 21.6.2007 issued by the 2nd respondent – disciplinary authority , to the extent of imposing the liability on the petitioner, is set aside and the issue no.3 is answered in favour of the petitioner. 56. Coming to the 3rd issue with regard to the quantum of punishment, it is necessary to note the law laid down by the Apex Court in the decision reported in DIRECTOR GENERAL, RPF vs. CH.SAI BABU (2003)4 SCC 331 ) as under: “Normally, the punishment imposed by the disciplinary authority should not be disturbed by the High Court or the tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness excepted and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works.” 57. From the above judgment it is clear that the punishment imposed by the disciplinary authority should not be interfered with unless it is found that the punishment is grossly or shockingly disproportionate, after examining the relevant factors. 58. The charge that is found proved against the petitioner is with regard to improper maintenance of P.D. Cash Book in the Court from 1.4.2005 to 29.9.2005. The finding of the enquiry officer on charge no.5 is that the loss was not caused to the public money due to improper maintenance of accounts and that the loss was caused only due to the gross negligence and failure on the part of D-1 and the Presiding Officer in identifying the judgment-debtor and accordingly the charge no.5 was held to be not proved against the petitioner. The explanation of the petitioner for improper maintenance of P.D. cash book is that he has no experience in working accounts department and that subsequently he has updated the P.D. cash book.
The explanation of the petitioner for improper maintenance of P.D. cash book is that he has no experience in working accounts department and that subsequently he has updated the P.D. cash book. It is also stated that the petitioner is having more than two decades of unblemished service. In these circumstances, considering the nature of misconduct found proved against the petitioner and considering the findings of the enquiry officer on other charges, the explanation of the petitioner and also the facts and circumstances and also having regard to the fact that the charge no.3 against the petitioner with regard to handing over of the pass book elsewhere than in the court, is found to be not proved, and also his long length of service, we are of the considered view that imposing the punishment of dismissal from service is grossly and shockingly disproportionate and the issue no.3 framed in this regard is answered in the affirmative. 59. For the foregoing reasons the impugned proceeding imposing the punishment of dismissal from service is set aside and the matter is remitted back to the 2nd respondent to pass appropriate orders in accordance with law within a period of two months from the date of receipt of a copy of this order. The proceedings dated 2.4.2008 of the 1st respondent confirming the proceedings of the 2nd respondent dated 21.6.2007 in imposing the liability on the petitioner along with D-1 – Lakna Reddy, is set aside to the extent of liability of the petitioner. 60. The writ petition is accordingly allowed. No costs.