JUDGMENT
S. Parvatha Rao, J.
1. The petitioner seeks a Writ of Certiorari for quashing the order of the 2nd respondent i.e., the District judge, West Godavari District at Eluru, in his proceedings Dis. No. 9926 dated 31-10-1996 imposing the punishment of compulsory retirement on him as confirmed by the High Court of Andhra Pradesh and communicated by the 1st respondent i.e., the Registrar (Administration), High Court of Andhra Pradesh, in Proceedings No. 590/96,C.II/1 dated 3-2-1997 as bad, illegal, arbitrary, excessive and offending Articles 14,16,19 and 21 of the Constitution of India.
2. Mr. J. Venugopala Rao, the learned Counsel appearing for the petitioner, confines the attack to the punishment of compulsory retirement imposed on the petitioner and submits that the punishment imposed is wholly disproportionate to the charges found against the petitioner. The learned counsel submits that the petitioner had put in 30 years of service and he had 8 more years to go, that this was only the solitary instance of technical misappropriation of Rs. 440/- and that the petitioner did not deserve the punishment of compulsory retirement.
3. The two charges framed against the petitioner read as follows:-
“Charge No. 1:- That while you. Sri K.V. Srimannarayana, L.D. Clerk were working in the Special judl. II Class Magistrate’s Court, Bhimavaram on 17-11-1993 you have collected a total fine amount of Rs. 680/- but had remitted only an amount of Rs. 240/- under Challan No. 1185 dated 18-11-1993 and intentionally withheld the fine amount of Rs. 440/- without remitting to the Government and thus misappropriated the same.
Charge No. 2:- That on misappropriation of the fine amount of Rs. 440/- without remitting to the Government on 18-11-1993, to cover up your misappropriation you have altered the office Challan No. 1185 and the fine statement for the month of November, 1993 including the challan receipt issued by the State Bank of India, Bhimavaram and thus manipulated the Office records to cover up the misappropriation”.
Both the charges were found against the petitioner. The petitioner was permitted to engage an Advocate of his choice by the Enquiry Officer and adequate time was granted to him to file his written statement. He submitted that he did not commit the misconduct intentionally and that he in fact remitted the sum of Rs. 440/- on 7-12-1994 after he was permitted to do so by the learned District Judge. It was not disputed by him that he collected the fine amount of Rs. 680/- on 17-11-1993 and he himself took the amount to the Bank on 18-11-1993 for remitting the same. He submitted that he remitted the amount of Rs. 680/- in the Bank and that though he deposited the said amount, the Bank Clerk did not mention the amount of Rs. 680/- and only mentioned Rs. 240/- by mistake.
4. The Petitioner himself was examined as D.W.I and he stated therein that he himself prepared the Challan on 17-11-1993 so as to remit the amount in the Bank on 18-11-1993. He admitted that the Challan Form retained contained the amount of only Rs. 240/- and that “due to fear he corrected the challan and changed the figures Rs. 240/- as Rs, 680/-” (Marked as Ex.P-7) and that he did not bring to the notice of the Presiding Officer about the corrections made by him in Ex.P-7 Challan due to fear. He also admitted that the corrections were made by him one month after remittance made in the Bank on 18-11-1993. The Enquiry Officer in his report dated 4-1-1996 held as follows on Charge No. 1:-
“It is the case of the delinquent that he personally went to the Bank and he deposited the amount in the cash counter, and he himself corrected the entries in the challan. The contention of the delinquent that due to pressure of work he did not notice that only an amount of Rs. 240/- was deposited to be shown in the challan cannot be accepted. Ex.P-6 and P-7 clearly go to show that the challan was only prepared for Rs. 240/- and the amount deposited was only Rs. 240/-. Ex.P-7 clearly shows that only an amount of Rs. 240/- was deposited in the Bank and the Sub-Treasury Officer’s letter-Ex.P-4 and the admission made by the delinquent in Ex.P-8 also clearly show that only an amount of Rs. 240/- was deposited instead of Rs. 680/-; therefore, the Charge No. 1 is proved against the delinquent beyond all reasonable doubt”.
On Charge No. 2 the Enquiry Officer found as follows:-
“The conduct of the delinquent in correcting the entries on Ex.P-7 challan without the knowledge and information to the Presiding Officer clearly goes to show his evil intention to suppress the truth and to cover up his misdeeds.”.
5. The petitioner was served with a copy of the enquiry report dated 4-1-1996 and he gave his written representation dated 30-1-1996 stating that the statements of the witnesses recorded during the enquiry were not supplied to him and that there was no mala fide intention in remitting Rs. 240/- as against Rs. 680/- towards the fine amount. In the order of the 2nd respondent dated 31-10-1996 it is stated as follows:-
“The second Enquiry Officer was appointed because the first enquiry officer submitted his report without examining the witnesses, and the matter was remanded to the same Enquiry Officer with a direction to examine the witnesses, and submit his report. But the first Enquiry Officer did not proceed with the enquiry and submitted that he has already come to a conclusion and hence it is embarassment to proceed against the delinquent afresh for submitting a fresh report.
Hence, under the circumstances, the second Enquiry Officer was appointed. Even in the first Enquiry Officer’s report also both the charges were held to be proved against the delinquent. Therefore, the non-supply of the first Enquiry Officer’s report to the delinquent does not in any way cause prejudice to the delinquent. Further the said report is cancelled and it cannot be considered and it has no bearing on the issue.
The delinquent submits that the statements of the witnesses recorded during the enquiry were not supplied to him. This request at this stage has no basis. It is for the delinquent to ask for the same from the Enquiry Officer before the conclusion of the enquiry. On account of the non-supply of the statements of tine witnesses recorded during enquiry, it cannot be said that the enquiry is vitiated nor any prejudice is said to be caused to the delinquent. Further, it is not the case that the statements of the witnesses were recorded by the Enquiry Officer during the absence of the delinquent, and that they were not supplied to him by the Enquiry Officer in spite of the fact that the delinquent asked for the same if the delinquent had asked the Enquiry Officer to furnish the copies of the statements, he would have been furnished the same by the Enquiry Officer. Therefore, I see no force in the said representation.
The third plea, that is, set up by the delinquent is that he was mentally perverted due to family affairs and that he has already remitted the amount as per the orders of the District Judge and out of fear he corrected the Challan etc., not knowing the consequences.
So far as the mental condition of the delinquent is concerned, there is no material on record, and it is a belated plea and the same cannot be accepted as true.”
In the result, he agreed with the findings reached by the Enquiry Officer and imposed the punishment of compulsory retirement from service. The appeal preferred by the petitioner against the said order of the 2nd respondent was dismissed.
6. The learned Counsel for the petitioner faintly submits that the depositions of various witnesses recorded by the earlier Enquiry Officer Mr. K.S. Appa Rao were not furnished to the petitioner. Even in the affidavit in support of the writ petition the petitioner does not state that he asked for the said statements. He only complaints as follows;-
“I submit that the 2nd Enquiry Officer did not furnish me the statements of P.Ws. 1 to 3, who were examined, and did not furnish the copies of Exs.P-1 to P-15 marked through them. It is humbly submitted that the Enquiry Officer who conducted his enquiry and who examined P.Ws. 1 to 3 and marked Exs.P-1 to P-15 failed to supply the statements of witnesses and connected documents of zerox Copies of Exs.P-1 to P-15.”
We have already referred to the order of the 2nd respondent, wherein he stated categorically that the petitioner never asked the 2nd Enquiry Officer i.e., Mr. L.L. Narasimha Rao, for supply of the statements recorded by the earlier Enquiry Officer Mr. K.S. Appa Rao. If that is not a correct statement of fact, the petitioner ought to have come forward in his affidavit in support of this writ petition whether he in fact asked the 2nd Enquiry Officer Mr. L.L. Narasimha Rao for the same. We do not see how the statements recorded by the earlier Enquiry Officer were relevant when it is not the case of the petitioner or even the learned Counsel for the petitioner that they were referred to or relied upon by the 2nd Enquiry Officer Mr. L.L. Narasimha Rao.
7. On the question of proportionality, the learned Counsel for the petitioner invokes the sympathy of this Court, but we do not see how the punishment imposed is unreasonable on the facts admitted by the petitioner and found against the petitioner. The learned counsel relies on the decision of the Supreme Court in Ram Kishan v. Union of India, and submits that this Court can also exercise the power exercised by the Supreme Court in reducing the punishment imposed. He also relies on the observations of Hansaria, J., in B.C. Chaturvedi v. Union of India, : wherein the learned Judge observed that the High Courts under Article 226 of the Constitution are vested with inherent power to do ‘complete justice’ similar to the power of the Supreme Court under Article 142 of the Constitution. The learned Judge observed as follows:-
“No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete Justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such a case being made out. What a difference”.
But that is countered by the judgment of the majority in that case delivered by K. Ramaswamy, J. for himself and for Jeevan Reddy, J: the learned Judge referred to the judgment of a Constitution Bench of the Supreme Court in State of Orissa v. Bidyabhushan, and the judgments of three Judges Benches of the Supreme Court in Union of India v. Sardar Bahadur, and Rangaswami v. State of Tamil Nadu, (from the facts referred to, the correct reference seems to be Union of India v. Parmananda, and of two Judges Bench in State Bank of India v. Samarendra Kishore Endow, (D.N.) and held as follows:-
“A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the high Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
There are also the decisions of three Division benches of this Court -Suryanarayana Rao v. State of Andhra Pradesh, 1973 (1) An.W.R. 199 Director, N.R.S.A. v. G. Reddappa, 1991 (1) APLJ 243 and State Bank of Hyderabad v. V.K. Gadgil, . In G. Reddappa’s case(supra) after discussing the various decisions of the Supreme Court, the Division Bench held that the principle of proportionality had no application in India, in view of the decision of the Constitution Bench of the Supreme Court in Bidyabhashan’s case (3 supra). In V.K. Gadgil’s case(supra), the Division Bench culled out the following principles:-
“(1) In exercise of jurisdiction under Article 226 of the Constitution of India, the power of the High Court while considering the question of proportionality of punishment in service matters, is one of Judicial review which is not an appeal from a decision but a review of the manner in which the decision was made. If the punishment awarded by the disciplinary authority is one, which having regard to the rules, could be imposed for the proved misconduct, the Court will not go into the sufficiency or otherwise of the punishment awarded by the authority. However, there are three exceptions to this rule:
(i) Where the punishment imposed is mala fide or so disproportionate as to shock the conscience of the Court;
(ii) Where the punishment imposed falls under Clause (a) of the Second Proviso to Article 311 of the Constitution; and
(iii) Where the punishment imposed was passed under Section 11-A of the Industrial Disputes Act.
(2) Whether the impugned punishment is so disproportionate as to shock the conscience of the Court/is a question of fact, which has to be decided on the facts of each case, having regard to the gravity of the misconduct, nature of the duties discharged by the delinquent officer, the position held by him and the nexus between the official position and the misconduct. It is neither practicable nor desirable to lay down as to when a punishment can be said to be shocking the judicial conscience;
(3) Whether the proved misconduct is a substantial misconduct or a trivial misconduct, is a matter which can be examined by the High Court; and where the disciplinary authority proceeded on the assumption that the misconduct was a substantial misconduct whereas in fact it was found to be only a trivial misconduct, the High Court will be well within its bounds to quash the impugned punishment as one not authorised by law.
In a case to which exception (i) to rule (1) or rule (2), mentioned above, is applicable, the appropriate course for the Court will be to remit the matter to the disciplinary or the appellate authority, as the case may be, for passing fresh Order of punishment commensurate with the gravity of the charges proved but not to substitute a lesser punishment which in its opinion, is just and proper.”
In the recent decision of this Court in Y. Rajeswari v. District Judge, Nellore, 1997 (1) An.W.R. 340 = 1996 (3) ALD 719, another Division Bench of this Court, of which one of us (Parvatha Rao, J.) is a party, relying on the decision of the Supreme Court in State of U.P. and Ors. v. Nand Kishore Shukla, , has held that while exercising the powers under Article 226 of the Constitution, this Court cannot go into the matter of proportionality of the punishment and that the quantum of punishment imposed cannot be interfered with unless the punishment imposed is shocking to the conscience of this Court.
8. In Y. Rajeswari’s case (supra), the Division Bench also reiterated the view that the appellate authority need not elaborately give the reasonings where it agreed with the view of the first authority. This answers the contention of the learned counsel for the petitioner that the appellate order did not disclose the reasons for agreeing with the findings and the decision of the first authority. We may also refer to the decision of the Supreme Court in State Bank of Patiala v. S.K. Sharma, .
9. We find that, on the facts of the present case, no grounds are made out for interfering with the punishment of compulsory retirement imposed on the petitioner. Even in the affidavit in support of the Writ Petition the petitioner states as follows:-
“I gave my explanation to the Special Judicial Second-Class Magistrate, Bhimavaram on 24-11-1994 stating that it was a fact that an amount of Rs. 680/- was collected as fine amount and the same was handed over at the bank along with the treasury challan 1185 on 18-11-1993 at 12 Noon and the challan was received back at 3.30 P.M. The said challan which evidently contained shortage of Rs. 400/- was received by the attender and the same was affixed by the attender in the challan register. Thus, I could not have knowledge about the shortage until V.V.S.N. Murthy, Attender brought out this omission and submitted a petition against me to the 1st Additional Munsif Magistrate, Bhimavaram. After verifying the fact that only Rs. 240/- was endorsed as received on the Sub Treasury foil while in the Court challan foil showed that Rs. 680/-. I admitted that this is a mistake in remittance and it was done due to oversight.” He further states as follows:-
“The main point which was considered as adverse in the evidence is with reference to 2nd charge. It was stated that on verification of the challan after one month I came to know that I did not remit Rs. 680/- and that I made corrections changing the amounts in the challan register. I explained that I did not bring if to the Presiding Officer and corrections were made due to fear and without knowledge of implications. The copies of corrections are marked as Ex.P-7A to 7D. The very fact that I admitted that in the entries it was wrongly mentioned as Rs. 240/- instead of Rs. 680/- and I did not verify the challan register by the attender and thus the mistake could not be noticed is a genuine submission.”
But this Court does not exercise the powers of an appellate court under Article 226 of the Constitution and cannot enquire into the correctness of the findings arrived at by the respondents on the basis of the material placed before this Court. From the enquiry report, dated 4.1.1996, the following facts and findings stand out:
10. The petitioner himself admitted that an amount of Rs. 680/- was collected by him as fine on 17-11-1993 and that he himself took the amount to the bank on 18-11-1993. He stated in his evidence as D.W.I that on 17-11-1993 he prepared the challan so as to remit the amount in the bank on 18-11-1993. Ex.P-6 was challan copy prepared by him and Ex.P-7 was the duplicate copy of the Challan given by the Bank after the payment was made. Ex.P-7 showed that only Rs. 240/- was paid into and received by the bank on 18-11-1993. The petitioner admitted that after one month he changed the figure of Rs. 240/- in Ex.P-7 as Rs. 680/- and that he did not bring that fact to the notice of the Presiding Officer due to fear. On Enquiry, the Sub-Treasury Officer stated by letter Ex.P-4 that only a sum of Rs. 240/- was remitted under Challan No. 1185 dated 18-11-1993. Only after more than one year, on a report dated 25.11.1994 submitted by the Presiding Officer to the District Judge, the petitioner paid the balance amount of Rs. 440/- on 7-12-1994.
11. On these facts, the Enquiry Officer did not find any basis for accepting the contention of the petitioner that though he paid Rs. 680/- the bank clerk had given the challan only for Rs. 240/-, which is inconsistent with his admission that he himself filled up the challan form. On this aspect of the matter, the Enquiry Officer very detailedly analysed and discussed as follows:-
“Ex.P-7 is the challan copy issued by the bank after remittance of the amount. Ex.P-7(C) is an entry prepared by the delinquent himself, originally it was mentioned as Rs. 240/- and later it was changed as Rs. 600/- and he also mentioned Rs. 80/- underneath it separately. Ex.P-7(D) is the total amount wherein the original amount of Rs. 240/ – was converted as Rs. 680/-. Ex.P-7(C) and Ex.P-7(D) entries are made by the delinquent himself and by these two entries, the intention of the delinquent is manifest that he wanted to deposit only Rs. 240/- and he deposited only Rs. 240/- in the bank. Ex.P-7(A) is an entry made by the bank for Rs. 240/- in red ink, which was changed by the delinquent as Rs. 680/-. Ex.P-7(B) is the entry in words for the amount of Rs. 240/- by the bank which was changed as Rs. 680/-. The corrections in Ex.P-7(A) to Ex.P-7(D) clearly go to show the mala fides on the part of the delinquent. According to the delinquent, these corrections in Ex.P-7(A) to Ex.P-7(D) were made by him one month after 18-11-1993. It is his case that due to fear, he made these corrections without information to the Presiding officer. Thus, by his evidence, it is very much clear that the delinquent had an evil intention right from the beginning…….”
On these findings, it is not possible for us to hold that the punishment of compulsory retirement imposed on the petitioner is shockingly disproportionate.
12. The Writ Petition is, therefore, dismissed. No costs.