N. Chandra Sekhar vs The District Judge and Others

Motilal B. Naik, J.—The present Writ Petition is filed assailing the legality of the proceedings dated 6-7-1993 issued by the first respondent dismissing the petitioner from service, on various grounds.

In the affidavit, it is stated that the petitioner was appointed as Process Server by the District and Sessions Judge, Eluru, West Godavari District in September, 1984 and was posted as such initially in the Sub-Court of Tadepalligudem and later, he was transferred to the Court of Principal District Munsif Tadepalligudem, West Godavari District. It is stated that from the date of his appointment, the petitioner has been discharging his duties sincerely.

While so, a memo was issued to him on 6-3-1991 by the Principal District while he was on duty in the Court hall on 28-2-1991 in the Additional Munsif Magistrate''s Court, he is said to have misbehaved with one Smt. Sk. Ramjan who had attended the Court in connection with S.T.C. Case No. 37/91 and that the third respondent Questioned the conduct of the petitioner on the basis of an oral complaint made to the third respondent by Smt. S.K. Kamjan. It is stated that an explanation was given by the petitioner denying his involvement in the incident and the petitioner had also denied about the alleged incident having taken place on 28-2-1991. In the said explanation, the petitioner also narrated the fact that the third respondent herein had asked him to do some job which was refused by the petitioner on 5-3-1991 and therefore, as a consequence to this refusal, the third respondent hatched a conspiracy against the petitioner alleging the petitioner''s involvement in the incident said to have taken place on 28-2-1991.

After a lapse of more than nine months, the petitioner was surprised to receive orders dated 24-12-1991 issued by the District judge, West Godavari, contemplating enquiry proceedings against the petitioner on the basis of a complaint said to have been made by the third respondent in connection with two alleged incidents which have taken place on 28-2-l991 and 5-3-1991. Through the said proceedings, the Principal Munsif Magistrate, Tadepalligudem was appointed as the Enquiry Officer and he was directed to complete the Enquiry and send a report to the District judge within six weeks from the date of receipt of the proceedings.

As directed by the District Judge, Eluru in the said proceedings, the following two charges were framed against the petitioner, viz.,

(1) "That you on 28-2-1991 while doing Court hall duty at Addl. District Munsif''s Court at Tadepalligudem misbehaved with a lady accused Smt. Sk. Ramjan in S.T.C. No37/91 on the file of S.T.C. Addl. Munsif Magistrate Tadepalligunem by pressing her ''breast'' with your elbow when she went to the Head Clerk to pay the fine amount and that when the said ''accused ''complained to the Head-me clerk about your misbehaviour and the Head-Clerk has pacified the matter, which is unbecoming of you being an employee and contravened Rule 3(2) of A.P. Civil Services (Conduct) Rules 1964;

(2) That on 5-3-1991 at about 12-30 noon you were found by the Head Clerk Sri V. Subba Rao of Addl. Munsif Magistrate''s Court, Tadepalligudem, Misbehaving with the parties at the down stairs of I Addl. District Munsif''s Court Tadepalligudem while you were on duty i.e., Court hall duty and when the said Head Clerk questiened your conduct, you rebelled against the said Head Clerk in the presence of Sri V, Balasubrahmanyam, L.D. Clerk,G. Atchuta Rao, L.D. Clerk and M. Chandrasekhar, Record Assistant of I Addl. District Munsif Court and thus failed to devote to your duty and failed to maintain discipline and absence of propriety and behaved is such a manner which is unbecoming of any employee and violated Rule 3(1) and (2) of A.P. Civil Services (Conduct) Rules, 1964."

The petitioner gave his explanation before the Enquiry Officer and sought permission from the Enquiry Officer to permit him to have the assistance of an Advocate, which was turned down by the Enquiry Officer. During the enquiry, the de-facto complainant one Smt. Sk. Ramjan was not at all examined and yet the Enquiry Officer, basing on the oral evidence given by P.W.1 who is none else than the third respondent herein and P.W.2 a clerk working under the third respondent, completed the enquiry and submitted his report to the District Judge by holding that charge No. 1 is established. Basing on the report of the Enquiry Officer, the District Judge issued the impugned proceedings dated 6-7-1993 dismissing the petitioner from service by accepting the said Enquiry Report. The proceedings dated 6-7-1993 dismissing the petitioner from service is the subject matter of the present Writ Petition.

Sri J. Venugopala Rao, learned Counsel for the petitioner contended that offence as indicated in charge No. 1 on 28-2-1991, the Enquiry Officer, on the basis of only the evidence of the third respondent who is the Head Clerk of the Additional Munsif Court, Tadepalligudem and P.W.2, Accounts Assistant working under the third respondent,held that Charge No. 1 is proved against the petitioner. It is contended that when the de-facto complainant i.e., Smt. Sk. Ramjan was not even examined as a witness in the enquiry and more so, when there is no written complaint, but only on alleged oral complaint to the third respondent, and only on the basis of the evidence of the third respondent and one Accounts Assistant who are examined as P.Ws.1 and 2, the Enquiry Officer held the petitioner guilty of Charge No. 1, which is improper. It is further contended, on the assumptions and presumptions with which the entire episode is dealt against the petitioner, discloses the hollowness in the enquiry contemplated, which has resulted in the dismissal of the petitioner from service. The Counsel for the petitioner submits that even presuming that there are some lapses on the part of the petitioner, imposing the punishment of dismissal from service is not warranted in as much as it is against the settled proposition of law that when the punishment is disproportionate to the charges alleged against a delinquent employee, such punishment cannot be sustained.

To meet these submissions, respondents 1 and 2 have filed a detailed counter. Though notices have been served on the third respondent, the third respondent has not been represented by anybody, nor he appeared in person today when the case had come up for final hearing. Therefore, this Court proceeded to dispose of the case on the basis of the arguments advanced on behalf of respondents 1 and 2.

On behalf of respondents 1 and 2, Sri M.V.S. Suresh Kumar, learned Counsel has contended that the charges levelled against the petitioner are serious in nature where the dignity and decorum of the Courts is involved. The petitioner had misbehaved with a lady who had come to the Court to make payment in connection with S.T.C. No. 37/91 on 28-2-1991, who had orally complained to the third respondent as the third respondent being the Head Clerk of the Court. The third respondent had tried to pacify that lady and warned the petitioner not to repeat such ugly incidents in the Court. Yet, it is stated, the petitioner failed to show any improvement in his conduct. Again on 5-3-1991, the petitioner along with one Additional Court Typist was found by the third respondent to be indulging in some conversation with some parties who had come to attend the Court and were creating nuisance. Therefore, the third respondent sent a complaint to the Principal Munsif Magistrate, Tadepalligudem for taking appropriate action against the petitioner. On the basis of the complaint made by the third respondent on 5-3-1991, the Principal District Munsif, Tadepalligudem issued a memo to the petitioner on 6-3-1991 seeking his explanation. It is con tended by the learned Counsel for respondents 1 and 2 that the respondents could not take immediate action against the petitioner as it was their endeavour to give sufficient time to the petitioner to improve his conduct. They found no improvement in the petitioner and therefore, the proceedings dated 24-12-1991 were issued ordering an enquiry to be held against the petitioner for the incidents which have taken place on

The Enquiry Officer framed two charges as indicated above and enquired into the matter. On the basis of the evidence of P.Ws.1 and 2, the Enquiry Officer held that Charge No. 1 is proved against the petitioner and. submitted the report. Therefore, it is contended that there is no irregularity in procedure and the petitioner was given all opportunities to cross-examine the witnesses and adduce any evidence on his behalf. Having regard to the nature of offence when the petitioner has touched the breast of a lady with his elbow in the Court premises, such act amounts to serious misconduct against a woman and therefore, the first respondent rightly dismissed the petitioner from service on the basis of the report sent by the Enquiry Officer.

It is contended that the said dismissal is proper and there is no violation of principles of natural justice or any irregularity in procedure. It is further contended that as the de facto complainant Smt. Sk. Ramjan''s whereabouts could not be traced the Enquiry Officer has proceeded with the enquiry by examining P.W.1 who is the third respondent and P.W.2 who is the Accounts Clerk and basing on other circumstantial evidence, submitted his report holding that Charge No. 1 is proved against the petitioner. Non-examination of the de facto complainant, it is urged, would not vitiate the proceedings when the circumstantial evidence has proved the guilt of the petitioner. The learned Counsel further contended that as against the order of dismissal, a statutory remedy by way of appeal is provided to the High Court on administrative side and the petitioner having failed to prefer an appeal against the order of dismissal, it is not open to the petitioner to approach this Court under Article 226 of the Constitution of India seeking to quash the impugned proceedings.

I have heard both the counsel at length.

Two charges were framed against the petitioner. One is on the basis of alleged incident which is said to have taken place on 28-2-19V1 in which it is alleged that the petitioner touched the breast of one Smt. Sk. Ramjan, with his elbow when she had come to the Court for the purpose of depositing the fine amount. The other incident relates to 5-3-1991 on which date, it is alleged that the petitioner along with a steno-typist of Additional Court was involved in some conversation with parties who had come to Court and are bound creating nuisance. The Enquiry Officer has exonerated the petitioner on the second charge. As far as the first charge of touching the breast of Smt. Sk. Ramjan is concerned, the Enquiry Officer found the petitioner guilty basing on the evidence of P.W.1 who is the Head Clerk of the Court and P.W.2 who is the Accounts Clerk working under P.W.1 normally, when and allegation is made against any person, the Enquiry Officer, basing on the evidence of the victim who had made a complaint alleging the misconduct against such person gives a finding to the effect whether or not the allegation made against such person is correct. In this case, admittedly, the "Star-Complainant" Smt. S.K. Ramjan was not examined. The only reason now putforth by the respondents 1 and 2 is that the whereabouts of the said Sk. Ramjan were not known to anybody and her presence could not be procured on the date of enquiry. Nontheless, the evidence of P. Ws.1 and 2 has been believed by the Enquiry Officer holding that said Smt. Sk. Ramjan seems to have orally reported to P.W.1 who is the third respondent here in about the incident, which fact was overheard by P.W .2 who is an Accounts Clerk working under P.W.1. The preponderance of probabilities for arriving at the conclusion that the petitioner has involved in an offence of misbehaving with the said lady, in my view, is improper and is vitiated by the fact of non-examination of Smt. Sk. Ramjan. The Enquiry Officer further goes to the extent of saying that the prestige of Court is involved and therefore it has to be held against the petitioner as to having committed the offence as stated by P.Ws.1 and 2, is also vitiated in the absence of any sound analogy arrived at by the Enquiry Officer. That apart, the first respondent who is the District Judge has only adopted the finding of the Enquiry Officer without examining the probabilities on which the entire case against the petitioner is being demonstrated, especially when an order of dismissal is made against the petitioner which is in the nature of depriving the bread and butter to the dependants as well to the petitioner.

Right to life is guaranteed by the Constitution of India. Such right to life is dependant upon survival of a particular person. The very survival is again dependant upon his maintenance. Such maintenance is only possible when a person has any employment or avocation. That is to say, to fulfill the requirement of Article 21, "means" is a must. Therefore, taking away "means" from a citizen would amount to taking away the right to life which is guaranteed by the Constitution of India. Therefore, while passing any order which has the effect of offending Article 21, the authorities have to bear in mind whether they have sufficient material before them justifying imposing of the punishment of dismissal from service.

The concept of disproportionality has been the theme of modern society, in particular, recognised by a civilised society. Law has to necessarily move along with the changing times and cannot remain, static. Any conaservatve in interpretation of law or conservative outlook towards the changing situation, not prepared to recognised the realities, is not healthy for the system which has to necessarily move along with times. It is a requirement of the law on disproportionality, before imposing any punishment on a delinquent employee, the authorities have to bear in mind that the quantum of punishment that is likely to be imposed has an element of proportionality. If the offences are very grave in nature, law would not prevent such authority from imposing grave punishment including that of dismissal from service. If the offence or alleged act of a delinquent employee is of not that magnitude requiring dismissal from service, the authorities concerned have to necessarily embark upon imposing minor penalties which would be in the nature of cautioning the person concerned. The endeavour shall be to reform a person while imposing minor penalties on him.

Looking at the charges alleged against the petitioner, the only charge held to be proved is that the petitioner touched the breast of Smt. Sk. Ramjan with his elbow. The said Smt. Sk. Ramjan was not at all examined in the enquiry. The Head Clerk who is the third respondent in this Writ Petition and who has been examined as P.W.1 and the Accounts Clerk who was examined as P.W.2 are the only witnesses who have deposed against the petitioner which has been accepted by the Enquiry Officer. The said Smt. Sk. Ramjan is said to have come to the Court for depositing fine amount imposed on her in an offence committed by her which is punishable under Immoral Traffic Act. The alleged incident of touching of ''breast'' of Smt. Sk. Ramjan by the petitioner with his elbow is said to have taken place in the corridors of the Court. The normal human reaction of any lady when her modesty is tried to be outraged either by gesture or by other acts, would be to make hue and cry or scold the person who committed the same. This factor is totally absent in this case. It is stated in the complaint by the third respondent, which is sent to the Principal District Munsif, Tadepalligudem that the said lady orally informed him in his office room that the petitioner had misbehaved with her which conversation seems to have been overheard by P.W.2 who is the accounts Assistant working under P.W.1. Basing on the narration of events and on the evidence of P.Ws.1 and 2 whether the Enquiry Officer is justified in giving an affirmative finding? On which basis whether the first respondent is justified in imposing the punishment of dismissal of the petitioner? As discussed by me above, when the magnitude of punishment has the effect of denying livelihood to a person, the authorities in whom such discretionary7 powers are vested to impose the punishment of that magnitude, has to necessarily apply their mind and pass appropriate order meeting the ends of justice. The incident narrated above and the evidence in this behalf available before the Enquiry Officer and the first respondent, in my view, are insufficient to warrant imposition of punishment of dismissing the petitioner from service. Even assuming for a moment that the petitioner was involved in the alleged offence, it could have been proper either to withhold one or two increments by warning the petitioner to improve his conduct in future. That punishment could have in all probabilities, met the ends of justice.

On behalf of the respondents 1 and 2, a specific stand has been taken before this Court by contending that when the petitioner has an effective alternative remedy for filing an appeal before the High Court on administrative side, approaching this Court under Article 226 of the Constitution of India is not warranted. I am not persuaded to sail with the view expressed by the learned Counsel for respondents 1 and 2, in the facts and circumstances of the case. The mere existence of alternative remedy is not an absolute bar to the relief under Article 226 of the Constitution of India and it does not take away the jurisdiction of this Court to grant relief in exceptional cases, as held by the Supreme Court in Municipal Council, Khurai and Another Vs. Kamal Kumar and Another, and in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, .

The facts as emerge from the impugned order make it clear that the petitioner has made out an exceptional case for this Court to interfere which in fact has the tendency of offending Article 21 of the Constitution of India. The approach of the Courts in dealing with a situation arising out of this nature of order which has the tendency of taking away the right to life which right has been guaranteed by the Constitution of India under Article 21, if the Courts are to harp upon technicalities and refuse to interfere under Article 226, Courts would be labelled as having denied justice to the parties. Therefore, what is required in a case of this nature is to render quick justice, which is in other words, known as "Instant justice". It is relevant in this context to refer few words of Lord Denning which are not only instructive but also inspiring.

"Law does not stand still. It moves continually. Once this is recognised, then the task of seek to mould the law so as to serve the needs of the time, must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect-thinking of the structure as a whole building for society, a system of law which is strong, durable and just. It is on his work that civilised society itself depends."

Even assuming if the charges level led against the petitioner are to be true, the punishment of dismissal imposed on the petitioner by the first respondent, in the circumstances, is vastly disproportionate to the wrong committed by him. This principle has emerged from a decision of a Division Bench of this Court in N. Rama Mohana Rao v. A.P.S.R.T.C. 1992 ALT 402

As discussed above, imposing punishment of dismissal on the petitioner from service is not warranted as there are no warranting circumstances to inflict such a punishment on him. The preponderance of probabilities are not in favour of imposing such a grave punishment of dismissal on the petitioner. Accordingly, the order of dismissal dated 6-7-1993 issued by the first respondent is set aside. Consequently, the first respondent is directed to reinstate the petitioner forthwith into service. Having regard to the facts and circumstances of the case, I hold that the petitioner is entitled for 50% of the back-wages from the date of dismissal till the date of his reinstatement, which shall be paid by the first respondent within a period of two months from the date of reinstatement of the petitioner. The petitioner shall also be entitled to all consequential benefits accruing to him consequent upon his reinstatement in service as if he was in service. The period between the date of dismissal and the date of reinstatement shall be treated, for all other purposes, as on duty.

The Writ Petition is allowed in the above terms. No costs.