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Smt. N.Nagamma W/O P.Srinivas … vs 1.The Registrar (Admn.), High … on 25 October, 2018

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE Ms JUSTICE J.UMA DEVI

Writ Petition Nos.34418 of 2017 and baTCH

25-10-2018

Smt. N.Nagamma W/o P.Srinivas Kumar, Aged 48 years, Previously worked as Steno-Typist, in the Court of Senior Civil Judg

1.The Registrar (Admn.), High Court of Judicature at Hyderabad 2. The Registrar (Enquiries), High Court of Judicature at H

Counsel for the Petitioner:Mr. G.U.R.C. Prasad

Counsel for Respondents:Mr. Swaroop Oorilla,

Standing Counsel

Gist:

Head Note:

? Cases referred:

AIR 1961 SC 1457
AIR 1964 SC 1013
AIR 1965 SC 1150
1979 (3) SCC 135
1978 (3) SCC 119
2014 SCJ Online (Mad) 2670
1996 (1) SCJ 566

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE Ms JUSTICE J.UMA DEVI
Writ Petition Nos.34418 and 44927 of 2017 and 2537 of
2018
Common Order: (per V.Ramasubramanian, J.)
The petitioner has come up with the above writ petitions
challenging in the first writ petition, a Charge Memo issued
for major penalty proceedings, challenging in the second writ
petition, the refusal of the respondents to grant permission to
her to engage a legal practitioner to defend herself in the
enquiry and challenging in the third writ petition, an order
passed by the Enquiry Officer on an objection taken by the
writ petitioner to the marking of certain documents.

2. Heard Mr. G.U.R.C. Prasad, learned counsel for the
petitioner and Mr. Swaroop Oorilla, learned Standing Counsel
for the respondents.

3. The petitioner was originally selected and appointed
as a Steno-Typist in the Court of the Magistrate at Narsapur
in West Godavari District, on 22-6-1994. Later, she was
transferred to the Court of the Subordinate Judge, Narsapur,
where she had to work under a Judicial Officer by name K.
Basava Raju.

4. The case of the petitioner is that she was subjected to
sexual harassment and was raped repeatedly by the Judicial
Officer, forcing her to make complaints. By April 1995, the
officer made a request and got transferred to another District.

5. It is the case of the petitioner that even after transfer,
the officer continued to spread rumours about the petitioner,
which led to an aborted attempt by the petitioner to commit
suicide.

6. Though no proceedings were initiated against the
officer, a criminal complaint was registered in Crime No.96/
1996 against the Judicial Officer on 29-6-1996, for offences
punishable under Sections 376 and 417 IPC.

7. The case was made over to the Mahila Court,
Visakhapatnam, in the year 1999 and after the examination
of the witnesses, it was transferred to the Court of the III
Additional Sessions Judge, Visakhapatnam on 14-12-2001
and renumbered as Sessions Case No.228 of 2001.

8. After trial, the Sessions Court delivered a judgment
dated 23-8-2002 holding the Judicial Officer guilty of the
offences punishable under Sections 376 and 417 IPC and
he was sentenced to simple imprisonment for 3 years and to
pay a fine of Rs.1,000/- for the offence under Section 376 IPC
and sentenced to undergo simple imprisonment for one year
and to pay a fine of Rs.1,000/- for the offence under
Section 417 IPC. Both sentences were directed to run
concurrently.

9. On the basis of the judgment of the Criminal Court,
the High Court recommended the dismissal of the Judicial
Officer from service. Accepting the recommendations of the
High Court, the Government issued orders in G.O.Ms.No.41,
Law Department, dated 22-3-2003, dismissing the officer
from service.

10. However, the Judicial Officer filed a criminal appeal
in Criminal Appeal No.971 of 2002. During the pendency of
the appeal, an interesting turn of events took place.
It appears that the petitioner was convinced (by whom is
irrelevant) to compound the offence punishable under
Section 417 IPC. She was made to move an application in
Crl.M.P.No.513 of 2008 in the pending Criminal Appeal
No.979 of 2002 seeking to compound the offence punishable
under Section 417 IPC. The application was allowed, the
offence under Section 417 IPC was compounded and the
Judicial Officer was acquitted of the offence.

11. Fortunately for the petitioner and unfortunately for
the Judicial Officer, the offence under Section 376 IPC is not
compoundable. Had it been compoundable, the issue would
have been buried fathom deep.

12. After the offence under Section 417 IPC was
compounded, it became easy for the judicial officer to
convince the court to go into the question of consent on the
part of the petitioner with regard to the charge of rape and to
get acquitted by a judgment dated 14-3-2008. While
acquitting the judicial officer, this court recorded certain
curious findings touching upon the conduct of the writ
petitioner herein. The findings are as follows:

19. I have gone through the bunch of letters,
which have been marked as Ex.P-1. The text of the letters
indicates that they travelled beyond the relationship of the
Officer and the Steno-Typist. Their conduct is
condemnable. Both are to be held responsible for
overstepping their official association. It is not a case to
pardon the act of the victim-P.W.1 and fasten criminal
liability on the appellant/accused. Certain admissions
made by P.W.1 in cross-examination suggest that both of
them accommodative to each other. For better appreciation,
I may refer the evidence of P.W.1 in her own words and it is
thus:

The accused used to visit me at Bheemavaram
once in a month or once in two months, after he
transferred to Visakhapatnam. We used to treat
him as our family member. My brother did not
object for our privacy or for the visits of the
accused. I did not send Laxmipatthi to
Visakhapatnam when the accused stopped to visit
me since January, 1996

This statement creates a doubt on her version that
she was subjected to sexual intercourse inspite of her
resistance. The conduct of P.W.1 in continuing her
association with the appellant/accused even after his
transfer from Narsapur to Visakhapatnam in April, 1995 for
a period of about an year clearly suggests that her
questionable relationship with appellant/accused at any
rate is not against her will. Therefore, the evidence brought
on record is wholly insufficient to conclude that P.W.1 was
not a consenting party.

13. We do not know how far the above findings will
stand the scrutiny of superior Courts, when it comes to
sexual harassment at workplaces. The definitions of rape
and consent have undergone a lot of changes and it is the
person who is in a dominant position, who should explain his
conduct in winning over the consent of the victim. It must be
remembered that the petitioner was a new recruit, having
been appointed to the post of Steno-Typist in June, 1994 and
the alleged incidents started happening immediately
thereafter. A Judicial Officer certainly holds a dominant
position vis–vis a Steno-Typist working under him and
hence the way the conduct of the petitioner came to be
critically looked at by the learned Judge while dealing with
the criminal appeal, leaves much to be desired.

14. We are conscious of the fact that we are not dealing
with an appeal as against the judgment of the learned Judge
in the criminal appeal, that ended in the acquittal of the
Judicial Officer. But we are obliged to take note of the
observations in the judgment of the learned Judge which
we have extracted above, since those observations have
caused a collateral damage viz., that of initiation of
departmental proceedings against the petitioner.

15. After the acquittal of Judicial Officer by this Court
in Criminal Appeal No.979 of 2002 by the judgment dated
14-3-2008, the petitioner was issued with a Charge Memo
dated 15-5-2009. These charges were based entirely upon the
observations of the learned Judge in the judgment in the
criminal appeal. The Articles of charges read as follows:

Articles of Charges:

Charge (1): That you, Smt. N.Nagamma, Court
Master, High Court of A.P., Hyderabad, while working as
Steno-typist, at Subordinate Judges Court, Narasapur,
West Godavari District had sexual intercourse with Sri
K.Basava Raju, formerly Subordinate Judge, Narasapur,
without resisting the advances made by the said officer to
have intercourse with you and were a consenting party for
the said illicit act in the office premises at Narasapur and
also at various other places as admitted in your deposition
as P.W.1 in S.C.No.228/2001 on the file of Mahila Court,
Visakhapatnam and thus indulged in an act of unbecoming
of a government servant by behaving in a manner
derogatory to the prestige of the judiciary and guilty of
misconduct under Rule 3 of A.P. Civil Services (Conduct)
Rules, 1964.

Charge (2): That you, Smt. N.Nagamma, Court
Master, High Court of A.P., Hyderabad, while working as
Steno-typist, Subordinate Judges Court, Narasapur, West
Godavari District knowing that Sri K.Basava Raju, formerly
Subordinate Judge, Narasapur, was already married and
having two children and living with his wife, prevailed upon
him to marry you during the subsistence of his marriage
and thereby attempted to contract marriage with a married
person which contravenes Rules 3 and 25 of A.P. Civil
Services (Conduct) Rules, 1964 and thus you are liable for
penalty under Rule 9 of A.P. Civil Services (CCA) Rules,
1991.

Charge (3): That you, Smt. N.Nagamma, Court
Master, High Court of A.P., Hyderabad, while working as
Steno-typist, at Subordinate Judges Court, Narasapur,
West Godavari District tried to bring force on Sri K.Basava
Raju, formerly Subordinate Judge, Narasapur, to marry you
during the subsistence of his marriage by consuming
sleeping pills, which contravenes Rules 3 of A.P. Civil
Services (Conduct) Rules, 1964, thus you are liable for
penalty under Rule 9 of A.P. Civil Services (CCA) Rules,
1991.

16. That the charges were based entirely upon the
judgment in the criminal appeal, can be seen from the fact
that in Annexure-II to the Charge Memo, only two documents
were relied upon, in support of the charges. The first
document was the deposition given by the petitioner herself
as P.W.1 in the criminal case. The second document was the
judgment in the criminal appeal. Even Annexure-I to the
Charge Memo clearly indicated that the basis of the charges
were (i) the petitioners deposition in the criminal case and

(ii) the judgment in the criminal appeal.

17. Shocked at the turn of events, the petitioner filed
a writ petition in W.P.No.12475 of 2009 on the file of this
Court. Though this Court ordered notice in the first instance
and granted interim stay on 29-6-2009, the writ petition was
later dismissed on 13-7-2010. The petitioner challenged the
dismissal of the writ petition, in S.L.P. (Civil) No.28293/2010,
but the special leave petition was also dismissed.

18. Therefore, the petitioner filed her written statement
of defence on 15-11-2010 to the Charge Memo. Thereafter,
nothing happened for a full period of 7 years. However,
a Memo dated 26-9-2017 came as a bolt out of the blue,
informing the petitioner of the appointment of the Enquiry
Officer as well as the appointment of the Presenting Officer.
The petitioner was directed to submit a list of documents
within five days and the Enquiry Officer also fixed a date for
the appearance of the petitioner. Therefore, the petitioner has
come up with a writ petition, in W.P.No.34418 of 2017,
challenging not only the Memo dated 26-9-2017 but also the
Charge Memo dated 15-5-2009.

19. Before the Enquiry Officer, the petitioner sought
permission to engage a counsel. Permission was rejected by
proceedings dated 28-11-2017 forcing the petitioner to come
up with a second writ petition in W.P.No.44927 of 2017.

20. In the course of the enquiry, the Presenting Officer
filed a Memo seeking to summon the Section Officer in the
Establishment Section for the purpose of marking the
deposition given by the petitioner in the criminal case. When
the petitioner objected, the Enquiry Officer overruled the
same by a docket order dated 06-01-2018. Challenging the
said order, the petitioner came up with the third writ petition
in W.P.No.2537 of 2018.

21. Since the first writ petition is the substantial one
and the other writ petitions will survive for adjudication only
in the event of the dismissal of the first writ petition, we shall
first take up W.P.No.34418 of 2017. In the event of our
coming to the conclusion that this writ petition deserves to be
dismissed, we shall take up the other two writ petitions.

22. As stated earlier, this writ petition challenges the
Charge Memo and it must be remembered that the present
writ petition is a second writ petition challenging the very
same Charge Memo. The first writ petition was dismissed and
the special leave petition filed against the same was dismissed
by the Supreme Court. Therefore, we may have to first
address ourselves to the question whether this writ petition is
barred by the principles of res judicata.

23. The first writ petition in W.P.No.12475 of 2009 was
filed immediately after the issue of the charge memo. The
challenge to the charge memo, as seen from paragraph 4 of
the judgment dated 13-07-2010, was only on two grounds
namely (i) that the deposition of a person in a criminal case
cannot be the basis for the initiation of the disciplinary
proceedings under Rule 20 and (ii) that there was inordinate
delay of 15 years in the initiation of proceedings, as the
incident that led to the charge memo happened in 1994. Both
these grounds of attack to the charge memo were rejected by
this Court, solely on the basis of the observations made in the
judgment dated 14-03-2008 in Criminal Appeal No.979 of
2002. Therefore, on a cursory glance, it would appear that the
writ petition W.P.No.34418 of 2017 challenging the very same
charge memo dated 15-05-2009 may be barred by res
judicata.

24. But, we must keep in mind two subsequent
developments that have taken place after the dismissal of
W.P.No.12475 of 2009 by the judgment dated 13-07-2010.
They are (i) that after the dismissal of the writ petition, the
writ petitioner submitted her written statement of defence to
the charges, on 15-11-2010 and (ii) that after sitting over the
written statement of defence for nearly 7 years, the High
Court decided to proceed with the enquiry and issued three
memos of dated 26-09-2017, appointing a Presenting Officer,
appointing an Enquiry Officer and directing the petitioner to
submit a list of documents.

25. In other words, the first writ petition was filed, even
before a written statement of defence was submitted by the
petitioner to the charge memo. Let us now see whether this
subsequent event is of any significance in terms of the Rules
and let us also see whether the submission of the written
statement of defence would alter the cause of action so
substantially from the previous one, enabling the petitioner to
maintain a second writ petition.

26. In order to find out an answer to the above question,
we must take a look at the scheme of Rule 20. For the
purpose of the present case, we shall briefly summarise the
scheme of Rule 20, from the stage of initiation of disciplinary
proceedings up to the stage of appointment of the Enquiry
Officer. The scheme is as follows:

(i) Once it is proposed to hold an enquiry under Rule 20, the
Disciplinary Authority should draw up or cause to be drawn
up in terms of sub-rule (3), the substance of the imputations
of misconduct into definite and distinct articles of charges.

(ii) Thereafter, the Disciplinary Authority should deliver, in
terms of sub-rule (4), a copy of the articles of charges to the
Government Servant, requiring him to submit a written
statement defence within such time not exceeding 10 working
days;

(iii) On receipt of the written statement of defence, the
Disciplinary Authority may itself inquire into such of the
articles of charges which are not admitted. Alternatively, the
Disciplinary Authority may appoint an Inquiring Authority
under sub-rule (2).

(iv) under Sub rule-(2), an order for an enquiry is made, only
when the Disciplinary Authority forms an opinion that there
are grounds for inquiring into the truth of any imputation of
misconduct.

27. Therefore, it is clear that after the submission of the
written statement of defence under sub-rule (4), some kind of
a consideration of the defence takes place under sub-rule (5)

(a) read with sub-rule (2). This becomes necessary at least to
find out what are the charges that are admitted and what are
the charges not admitted.

28. In this case, the scrutiny of the written statement of
the defence submitted by the petitioner on 15-11-2010
assumed significance in view of the something that happened
after the judgment dated 14-03-2008 in the Criminal Appeal,
but before the issue of the charge memo on 15-05-2009. The
incident that happened in between was that the Judicial
Officer concerned, after his success in the Criminal Appeal
moved the High Court for reinstatement. It may be recalled
that he was dismissed from service by G.O.Ms.No.41, dated
22-03-2003, pursuant to his conviction by the trial Court.
Therefore, after his acquittal by the judgment dated 14-03-
2008, the Judicial Officer sought reinstatement and he was
reinstated into service by G.O.Ms.No.158 Home Department
dated 3-10-2008. However, a departmental enquiry was
initiated against him with the issue of a charge memo. The
charge memo against the Judicial Officer was issued much
before 15-05-2008, the date of issue of the charge memo
against the petitioner.

29. Six charges were framed against the Judicial Officer.
This happened prior to the issue of the charge memo against
the petitioner. In the enquiry that followed, charge No.2 was
held not proved and the other charges against the Judicial
Officer were held proved. Therefore, by an order in G.O.Ms.
No.137 Law dated 20-12-2012, the Judicial Officer was
imposed with the penalty of dismissal from service. The six
charges framed against the Judicial Officer were as follows:
Articles of Charge:

Charge No.1:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, stated to have behaved in
an indecent manner with Ms. Nagamma, a newly recruited
stenographer posted to work under you, by touching her hands,
breasts, checks and used to kiss her, while she was attending to the
dictation work in between 8.30 A.M and 10.00 A.M., in the chamber
attached to the court of Sub Judge, Narsapur, and when the said
stenographer scared off you and used to run away from the
chamber, as she was new to employment, you used to accost her to
return to the chamber and used to express angry and threaten her
for running away from you. Thus you misbehaved with a
Subordinate employee, who was working under you, which act of
yours if proved or established would amount to grave misconduct,
unbecoming of a judicial officer within the meaning of rule-3 (c) (e)
of Andhra Pradesh Civil Service (Conduct) Rules, 1964.

Charge No.2:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, applied for commuted
Medical leave for thirty (30) days from 27-09-1994 to 26-10-1994
and after few days of your joining to duty, you started giving
dictation to Ms.Nagamma between 8.30 A.M to 10.00 A.M and all of
a sudden you stopped dictation and caught hold of her hand,
dragged her towards the toilet of your chamber, inspite of her
resistance, laid her on the floor of the toilet and forcibly had sexual
intercourse against her will, thus you exceeded your limits as a
Judicial Officer, acted in a manner which is derogatory to the
prestige of Judiciary, which act of yours, if proved or established
would amount to grave misconduct, unbecoming of a Judicial officer
within the meaning of rule 3 (c) (a) of Andhra Pradesh Civil Service
(Conduct) Rules,1964.

Charge No. 3:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, had sexual intercourse
with Ms.Nagamma, newly recruited Stenographer and posted to
work in your court, against her will in the toilet of the chamber of
Sub Court, Narsapur and later threatened her, that if she raises any
cries, you would propagate that she has taken you to the toilet and
she herself offered you to have sexual intercourse with her, thus you
blackmailed your subordinate staff i.e., Ms.Nagamma, Stenographer
of Sub Court, Narsapur, which act of yours, if proved or established
would amount to grave misconduct, unbecoming of a judicial officer
within the meaning of rule 3 and 3 ( c ) of Andhra Pradesh Civil
Service (Conduct ) Rules, 1964.

Charge No.4:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, continued the illicit
relationship / intimacy with Ms.Nagamma, Stenographer of the
Court, while you were working as Sub Judge, Narsapur and also
after your transfer as Principal Senior Civil Judge, Visakhapatnam,
by visiting Narsapur and Bhimavaram, frequently and has sexual
intercourse with her and developed illicit intimacy with her, luring
her, her mother and brother, that you will marry her, after your
promotion as Additional District Judge and subsequently you
informed about your unwillingness to marry her, inspite of the illicit
relationship/ intimacy continued with her for a long time, deceived
her, which acts of yours, if proved or established would amount to
grave misconduct, unbecoming of a Judicial Officer within the
meaning of rule 3 3 ( c) (a ) of Andhra Pradesh Civil Service
(Conduct) Rules,1964.

Charge No.5:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, continued your illicit
intimacy / relationship with Ms.Nagamma, Stenographer of Sub
Court, Narsapur, inspite of your transfer to Visakhapatnam and
used to make correspondence with the said stenographer,
Ms.Nagamma, by writing letters to her dated.20-06-1995, 26-07-
1995, 19-08-1995, 22-08-1995, 11-09-1995, 07-10-1995, 23-11-
1995, 14-12-1995, 27-12-1995, 11-05-1995 and 23-02-1996 and
tried to be in touch with her through your correspondence. Thus
you exceeded your limits and continued the illicit relationship with
your subordinate staff, which a judicial officer ought not have
developed or continued, which act of yours, if proved or established
would amount to grave misconduct, unbecoming of a Judicial
Officer within the meaning of rule 3 of Andhra
Pradesh Civil Service (Conduct) Rules, 1964.

Charge No.6:

That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur,
West Godavari District, now reinstated into service by virtue of
G.O.Ms.No.158, Home (Courts.C) Department, dt.03-10-2008 and
waiting for order of your posting as Senior Civil Judge, while
working as Subordinate Judge, Narsapur, initially has sexual
intercourse with Ms.Nagamma, Stenographer of the Court,
thereafter got yielded her to your lust and had intercourse with her
several times at Narsapur and also in the RTC Guest House and
private lodge at Rajahmundry and subsequently deceived and
discarded her, when she approached you at your official residence
in the District Court premises at Visakhapatnam on 22-04-1996,
moving the marriage proposal with you, but you and your wife
scolded and necked out Ms.Nagamma, in the presence of Sri
L.Kedarachary, the then I Senior Civil Judge, Visakhapatnam, due
to which stenographer, Ms.Nagamma, made an attempt to commit
suicide by swallowing 20 sleeping pills in front of your official
residence in District Court premises, Visakhapatnam, preparing a
suicide note, addressed to the Honble Chief Justice, High Court of
Andhra Pradesh, Hyderabad, and hospitalized. Thus, you deceived
her luring her that you will marry but subsequently discarded her,
which act of your, if proved or established would amount to grave
misconduct, unbecoming of a judicial officer within the meaning of
rule 3 3 (c ) of Andhra Pradesh Civil Service (Conduct) Rules,
1964.

30. Though the aforesaid six charges were framed
against the Judicial Officer long before a charge memo was
issued to the petitioner, the administration never thought it
fit to hold a joint enquiry. In fact, if the findings of this court
in the criminal appeal could from the basis of the disciplinary
proceedings against the petitioner, they equally formed the
basis for the proceedings against the judicial officer also. Both
of them were pulled up by this court in the criminal appeal,
as equally guilty of wrong doing. But, the administration
thought fit to proceed first against the Judicial Officer. In the
inquiry so held against the Judicial Officer, all charges except
charge No.2 were held proved and he was dismissed from
service by the order dated 20-12-2012.

31. Therefore, three things namely (i) the initiation of
disciplinary proceedings against the Judicial Officer, long
before the initiation of proceedings against the writ petitioner;

(ii) the nature of the explanation offered by the petitioner in
her written statement of defence dated 15-11-2010 and (iii)
the dismissal of Judicial Officer by G.O.Ms.No.137, dated
2012-2012, seemed to have weighed with the administration,
not to proceed with the inquiry as against the petitioner, for a
full period of 7 years from the date of submission of the
written statement of defence dated 15-11-2010 and the date
of appointment of the Inquiry Officer on 26-09-2017. The
administration was justified in putting the proceedings
against the writ petitioner in cold storage after the receipt of
her written statement of the defence on 15-11-2010 and the
dismissal of the Judicial Officer on 20-12-2012, since at least
charges 1 and 3 against the Judicial Officer were sufficient to
show that the charges against the petitioner cannot stand. In
other words, once it is found in the enquiry held against the
Judicial Officer that he was guilty of sexual misconduct
against a stenographer and of adopting coercive tactics, the
petitioner cannot be proceeded against for any complicity. The
first charge framed against the Judicial Officer, which we
have extracted above, shows that even when the writ
petitioner resisted the advances made by the Judicial Officer
and ran away from the chambers, the Judicial Officer
accosted her to return to the chamber and threatened her
with serious consequences. The third charge proved against
the Judicial Officer and which we have extracted above,
shows that whenever the petitioner cried, the Judicial Officer
threatened her and even blackmailed the subordinate staff.
Even the charges 4, 5 and 6 show that the Judicial Officer
was guilty of coercion, intimidation, undue influence and
enticement. Once the Judicial Administration has come to the
conclusion, in the proceedings against the Judicial Officer
that he was guilty of such things, none of the charges framed
against the petitioner can really stand. Today, if any of the
charges framed against the petitioner are to be held proved
even partially, then the findings recorded against the Judicial
Officer in respect of the charges listed above, would have to
fall like a pack of cards.

32. Therefore, the situation that prevailed when the
petitioner filed the first writ petition in the year 2009
challenging the very same charge memo, has undergone a
radical change after the year 2012 with the dismissal of the
Judicial Officer under G.O.Ms.No.137, dated 20-12-2012. The
realisation that dawned upon the judicial administration and
which made the charge memo against the petitioner being put
in the back burner appears to have disappeared suddenly in
September 2017 when the administration decided to proceed
with the inquiry against the petitioner. Therefore, the original
challenge to the charge memo and its failure cannot be held
against the petitioner, especially when the Judicial Officer
concerned was held guilty of charges that have the effect of
completely destroying and annihilating the charges framed
against the petitioner. Therefore, the present writ petition
cannot be said to be barred by principle of res judicata, as a
fresh cause of action has arisen, with the disciplinary
proceedings against the Judicial Officer culminating in an
order of penalty in the year 2012.

33. As pointed out by the Constitution Bench of the
Supreme Court in Daryao v. State of U.P. , the rule of res
judicata is founded upon considerations of public policy. Two
principles namely (i) that finality should attach to binding
decisions of courts and (ii) that individuals should not be
vexed twice over the same cause, were held to form the
foundation of the rule of res judicata.

34. But, in Amalgamated Coal Fields Limited v.
Janapadha Sabha , a Constitution Bench warned that
special and original forms of res judicata such as constructive
res judicata propounded in Section 11 of the Code of Civil
Procedure should not generally be applied to writ petitions
under Article 32 or 226. However, this decision was
distinguished by another Constitution Bench in Devilal Modi
v. Sales Tax Officer, Ratlam .

35. In Hoshnak Singh v. Union of India , the
Supreme Court held that a subsequent writ petition filed
against an order passed after availing an alternative remedy
pursuant to an order passed in the first writ petition, is not
barred by res judicata. Therefore, the inaction on the part of
the administration, especially after perusing the written
statement of defence dated 15-11-2010 and after the order of
dismissal of the Judicial Officer, has given rise to a separate
cause of action which is different from the one on the basis of
which the first writ petition was filed.

36. In Workmen v. Board of Trustee of Cochin Port
Trust , the court made certain important observations, which
may be relevance. Hence, they are quoted as follows:
“But the technical rule of res judicata, although a wholesome rule based upon
public policy, cannot be stretched too far to bar the trial of identical issues in a
separate proceeding merely on an uncertain assumption that the issues must have
been decided. It is not safe to extend the principle of res judicata to such an extent
so as to found it on mere guesswork. To illustrate our view point, we may take an
example. Suppose a writ petition is filed in a High Court for grant of a writ of
certiorari to challenge some order or decision on several grounds. If the writ
petition is dismissed after contest by a speaking order obviously it will operate as
res judicata in any other proceeding, such as, of suit, Article 32 or Article 136
directed from the same order or decision. If the writ petition is dismissed by a
speaking order either at the threshold or after contest, say, only on the ground of
laches or the availability of an alternative remedy, then another remedy open in
law either by way of suit or any other proceeding obviously will not be barred on
the principle of res judicata. Of course, a second writ petition on the same cause
of action either filed in the same High Court or in another will not be
maintainable because the dismissal of one petition will operate as a bar in the
entertainment of another writ petition. Similarly even if one writ petition is
dismissed in limine by a non-speaking one-word order ‘dismissed’, another writ
petition would not be maintainable because even the one-word order, as we have
indicated above, must necessarily be taken to have decided impliedly that the case
is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ
petition from the same order or decision will not lie. But the position is
substantially different from a writ petition dismissed either at the threshold or
after contest without expressing any opinion on the merits of the matter; then no
merit can be deemed to have been necessarily and impliedly decided and any
other remedy of suit or other proceeding will not be barred on the principle of res
judicata.”

37. It must be remembered that the principle of res
judicata as enunciated in Section 11 CPC is not exhaustive or
enumerative of its various facets. Res judicata is a principle
that recognises two different types of estoppels namely cause
of action estoppel and issue estoppel. If tested on the
touchstone of these two types of estoppels, it will be clear that
neither of them would apply to the case on hand.

38. There is no cause of action estoppel in this case,
since there were compelling circumstances for the judicial
administration to abort the disciplinary proceedings, as
against the petitioner, especially after holding the judicial
officer guilty of charges that are completely opposite to the
imputations of misconduct alleged against the petitioner.
There can also be no issue estoppel in this case, since the
whole gamut of law relating to sexual harassment of woman
at work places has undergone a sea change after the decision
of the Supreme Court in Visakha v. State of Rajasthan (AIR
1997 SC 3011). It must be pointed out that the decision in
Visakha v. State of Rajasthan was rendered by the Supreme
Court on 13-08-1997. The First Information Report on the
complaint made by the writ petitioner against the Judicial
Officer, was made on 09-06-1996, at least one year before the
decision in Visakha.

39. Unfortunately, no steps were taken to constitute a
committee as recommended by the decision in Visakha and
hence, the criminal case against the Judicial Officer took off
only from 2001. Neither the decision of this Court dated
14-03-2008 in Criminal Appeal No.971 of 2002 filed by the
Judicial Officer nor the decision of this Court dated 24-06-
2009 passed in W.P.No.12475 of 2009 filed by the writ
petitioner, took note of Visakha guidelines. Therefore, the
grievance of the writ petitioner with regard to the sexual
harassment at her work place, was never examined as the
one and only issue that required examination, either in the
criminal appeal filed by the Judicial Officer or in the
departmental proceedings initiated against the petitioner.
Hence, there is also no issue of estoppel.

40. It is an irony that the judgment dated 14-03-2008
passed in Criminal Appeal No.971 of 2002 even while
describing the petitioner herein as a victim, has paved the
way for the admonition of her conduct and the initiation of
disciplinary proceedings against the victim. Thus, the case on
hand has become a typical example of secondary
victimisation, on the platter of which, the issue arising in the
case was never examined. Hence, we have no doubt in her
mind that the present writ petition challenging the charge
memo is not barred by res judicata.

41. Once it is clear that the writ petition in W.P.No.
34418 of 2017 challenging the charge memo dated 15-05-
2009 is not barred by res judicata, then it follows as a
corollary that the validity of the charge memo can be tested
on the touchstone of the well established principles. A charge
memo can normally be challenged either on the ground of
lack of jurisdiction or on the ground that the imputations of
misconduct are completely vague or on the ground that the
imputations of misconduct, even if admitted, do not
tantamount to a misconduct under the Government Servants
Conduct Rules or on the ground that the very same
imputations formed the basis of a previous enquiry that has
already been concluded. These principles are only illustrative
and not exhaustive.

42. The case on hand may not strictly fall within the
parameters indicated in the preceding paragraphs. But it has
certain peculiarities. We have already extracted the six
charges framed against the Judicial Officer, all of which
except charge No.2 were held proved against the Judicial
Officer. If the Judicial Officer has already been held guilty of
the charges-1 and 3 to 6, the charges framed against the
petitioner cannot stand. This can be understood easily if
charges 1 and 3 to 6 framed against the Judicial Officer are
presented side by side in a tabular column along with the
charges framed against the petitioner herein.
Charges held proved against the
Judicial Officer
Charges now framed against the
petitioner
Charge No.1:

That you Sri K.Basava Raju, formerly
Subordinate Judge, Narsapur, West
Godavari District, now reinstated into
service by virtue of G.O.Ms.No.158,
Home (Courts.C) Department, dt.03-

10-2008 and waiting for order of your
posting as Senior Civil Judge, while
working as Subordinate Judge,
Narsapur, stated to have behaved in
an indecent manner with Ms.
Nagamma, a newly recruited
stenographer posted to work under
you, by touching her hands, breasts,
checks and used to kiss her, while she
was attending to the dictation work in
between 8.30 A.M and 10.00 A.M., in
the chamber attached to the court of
Sub Judge, Narsapur, and when the
said stenographer scared off you and
used to run away from the chamber,
as she was new to employment, you
used to accost her to return to the
chamber and used to express angry
and threaten her for running away
from you. Thus you misbehaved with a
Subordinate employee, who was
working under you, which act of yours
if proved or established would amount
to grave misconduct, unbecoming of a
judicial officer within the meaning of
rule-3 (c) (e) of Andhra Pradesh Civil
Service (Conduct) Rules, 1964.

Charge No. 3:

That you Sri K.Basava Raju, formerly
Subordinate Judge, Narsapur, West
Godavari District, now reinstated into
service by virtue of G.O.Ms.No.158,
Home (Courts.C) Department, dt.03-

10-2008 and waiting for order of your
posting as Senior Civil Judge, while
working as Subordinate Judge,
Narsapur, had sexual intercourse with
Ms.Nagamma, newly recruited
Stenographer and posted to work in
your court, against her will in the toilet
of the chamber of Sub Court, Narsapur
and later threatened her, that if she
raises any cries, you would propagate
that she has taken you to the toilet
and she herself offered you to have
sexual intercourse with her, thus you
blackmailed your subordinate staff i.e.,
Ms.Nagamma, Stenographer of Sub
Court, Narsapur, which act of yours, if
proved or established would amount to
grave misconduct, unbecoming of a
judicial officer within the meaning of
rule 3 and 3 ( c ) of Andhra Pradesh
Civil Service (Conduct ) Rules, 1964.

Charge No.4:

That you Sri K. Basava Raju, formerly
Subordinate Judge, Narsapur, West
Godavari District, now reinstated into
service by virtue of G.O.Ms.No.158,
Home (Courts.C) Department, dt.03-

10-2008 and waiting for order of your
posting as Senior Civil Judge, while
working as Subordinate Judge,
Narsapur, continued the illicit
relationship/intimacy with Ms.
Nagamma, Stenographer of the Court,
while you were working as Sub Judge,
Narsapur and also after your transfer
as Principal Senior Civil Judge,
Visakhapatnam, by visiting Narsapur
and Bhimavaram, frequently and has
sexual intercourse with her and
developed illicit intimacy with her,
luring her, her mother and brother,
that you will marry her, after your
promotion as Additional District Judge
and subsequently you informed about
your unwillingness to marry her,
inspite of the illicit relationship/
intimacy continued with her for a long
time, deceived her, which acts of
yours, if proved or established would
amount to grave misconduct,
unbecoming of a Judicial Officer
within the meaning of rule 3 3 (c) (a)
of Andhra Pradesh Civil Service
(Conduct) Rules,1964.

Charge No.5:

That you Sri K.Basava Raju, formerly
Subordinate Judge, Narsapur, West
Godavari District, now reinstated into
service by virtue of G.O.Ms.No.158,
Home (Courts.C) Department, dt.03-

10-2008 and waiting for order of your
posting as Senior Civil Judge, while
working as Subordinate Judge,
Narsapur, continued your illicit
intimacy/relationship with Ms.
Nagamma, Stenographer of Sub Court,
Narsapur, in spite of your transfer to
Visakhapatnam and used to make
correspondence with the said
stenographer, Ms. Nagamma, by
writing letters to her dated.20-06-

1995, 26-07-1995, 19-08-1995, 22-08-

1995, 11-09-1995, 07-10-1995, 23-11-

1995, 14-12-1995, 27-12-1995, 11-05-

1995 and 23-02-1996 and tried to be
in touch with her through your
correspondence. Thus you exceeded
your limits and continued the illicit
relationship with your subordinate
staff, which a judicial officer ought not
have developed or continued, which
act of yours, if proved or established
would amount to grave misconduct,
unbecoming of a Judicial Officer within
the meaning of rule 3 of Andhra
Pradesh Civil Service (Conduct) Rules,
1964.

Charge No.6:

That you Sri K. Basava Raju, formerly
Subordinate Judge, Narsapur, West
Godavari District, now reinstated into
service by virtue of G.O.Ms.No.158,
Home (Courts.C) Department, dt.03-

10-2008 and waiting for order of your
posting as Senior Civil Judge, while
working as Subordinate Judge,
Narsapur, initially has sexual
intercourse with Ms. Nagamma,
Stenographer of the Court, thereafter
got yielded her to your lust and had
intercourse with her several times at
Narsapur and also in the RTC Guest
House and private lodge at
Rajahmundry and subsequently
deceived and discarded her, when she
approached you at your official
residence in the District Court
premises at Visakhapatnam on 22-04-

1996, moving the marriage proposal
with you, but you and your wife
scolded and necked out Ms.Nagamma,
in the presence of Sri L. Kedarachary,
the then I Senior Civil Judge,
Visakhapatnam, due to which
stenographer, Ms. Nagamma, made an
attempt to commit suicide by
swallowing 20 sleeping pills in front of
your official residence in District Court
premises, Visakhapatnam, preparing a
suicide note, addressed to the Honble
Chief Justice, High Court of Andhra
Pradesh, Hyderabad, and hospitalized.
Thus, you deceived her luring her that
you will marry but subsequently
discarded her, which act of your, if
proved or established would amount to
grave misconduct, unbecoming of a
judicial officer within the meaning of
rule 3 3 (c ) of Andhra Pradesh Civil
Service (Conduct) Rules, 1964.

Charge (1): That you, Smt.
N.Nagamma, Court Master, High Court
of A.P., Hyderabad, while working as
Steno-typist, at Subordinate Judges
Court, Narasapur, West Godavari
District had sexual intercourse with
Sri K.Basava Raju, formerly
Subordinate Judge, Narasapur,
without resisting the advances made
by the said officer to have intercourse
with you and were a consenting party
for the said illicit act in the office
premises at Narasapur and also at
various other places as admitted in
your deposition as P.W.1 in
S.C.No.228/2001 on the file of Mahila
Court, Visakhapatnam and thus
indulged in an act of unbecoming of a
government servant by behaving in a
manner derogatory to the prestige of
the judiciary and guilty of misconduct
under Rule 3 of A.P. Civil Services
(Conduct) Rules, 1964.

Charge (2): That you, Smt.
N.Nagamma, Court Master, High Court
of A.P., Hyderabad, while working as
Steno-typist, Subordinate Judges
Court, Narasapur, West Godavari
District knowing that Sri K.Basava
Raju, formerly Subordinate Judge,
Narasapur, was already married and
having two children and living with his
wife, prevailed upon him to marry you
during the subsistence of his marriage
and thereby attempted to contract
marriage with a married person which
contravenes Rules 3 and 25 of A.P.

Civil Services (Conduct) Rules, 1964
and thus you are liable for penalty
under Rule 9 of A.P. Civil Services
(CCA) Rules, 1991.

Charge (3): That you, Smt.
N.Nagamma, Court Master, High Court
of A.P., Hyderabad, while working as
Steno-typist, at Subordinate Judges
Court, Narasapur, West Godavari
District tried to bring force on Sri
K.Basava Raju, formerly Subordinate
Judge, Narasapur, to marry you
during the subsistence of his marriage
by consuming sleeping pills, which
contravenes Rules 3 of A.P. Civil
Services (Conduct) Rules, 1964, thus
you are liable for penalty under Rule 9
of A.P. Civil Services (CCA) Rules,
1991.

43. It will be a contradiction in terms, to hold the
Judicial Officer guilty of adopting coercive tactics to make his
Steno-typist succumb to his pressure and thereafter to charge
the steno-typist of complicity. It is quite unfortunate that
after describing the writ petitioner as a victim, the judgment
of this Court in the Criminal Appeal has placed her on par
with the perpetrator.

44. As pointed out by the Madras High Court in M.
Kavya v. The Chairman, University Grants Commission ,
to which one of us (VRSJ) was a party, respect for the dignity
of women is one of the pillars of the foundation of the
Convention on the Elimination of All Forms of Discrimination
against Women. Article 5 of the said Convention enjoins upon
States Parties to take appropriate measures to modify the
social and cultural patterns of contact of men and women,
with a view to achieving the elimination of prejudices and
customary and all other practices, which are based upon
stereotyped roles for men and women.

45. Paragraphs 47 to 51 of the judgment of the Madras
High Court in M. Kavya v. The Chairman, University
Grants Commission may be usefully extracted as follows:

47. In 1999, a Hand Book of Justice for Victims was prepared by the United
Nations Office for Drug Control and Crime Prevention. It was prepared by a
group of experts from more than 40 countries. It was actually in pursuance of
the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, which was adopted by the General Assembly of the United Nations
29.11.1985.

48. Chapter I of the Hand Book deals with “Impact of Victimisation”. This
Chapter covers (1) the physical and financial impact of victimisation; (2)
psychological injury and social cost; and (3) secondary victimisation from the
Criminal Justice System and Society.

49. Sub-Chapter (c) of Chapter I of the Hand Book points out that secondary
victimisation refers to the victimisation that occurs not as a direct result of the
criminal act, but through the response of institutions and individuals to the
victim. In one of the paragraphs, it is stated as follows:-
“The attitude of individuals is important. Some people with whom the victim has
contact (example: family, friends and colleagues) may wish to distance
themselves from the distress of the crime by blaming the victim for what has
occurred. They may view the victim’s behaviour as having contributed to or even
cause the victimisation”.

By brushing aside the complaints of the petitioners as an outcome of a group
clash and rivalry and by branding the petitioners as indulging in political
activities, the respondents have belittled the very nature of the complaints. This
response on the part of the university and their attempt to blame the victims, is
what is pointed out by the U.N. in the aforementioned Hand Book as secondary
victimisation.

50. After the case of Nirbhaya, the Government of India constituted a committee
headed by former Chief Justice of India J.S.Verma. On the invitation of Verma
Committee, Professor Sandra Fredman FBA QC (hon), with the assistance of
members of Oxford Pro Bono Publico, prepared a report titled “Submissions on
the Reform of India s Sexual Violence Laws”. One of the recommendations
contained therein is to provide “Survivor Support Services”, which includes the
avoidance of secondary victimisation by the criminal justice system and society.

51. In the aforesaid report, secondary victimisation is indicated as a
victimisation that occurs not as a direct result of a criminal act but through the
inadequate response of institutions and individuals to the victims. Such
victimisation can range from experiences of isolation and confusion due to lack
of support and information, while navigating the criminal justice system, to the
shaming and ostracising of survivors and their families.

46. As was pointed out by the Madras High Court in M.
Kavya, institutions are supposed to provide Survivor
Support Services. The least that is expected of the
institutions is not to victimise the survivors, even if support
services are not provided.

47. As pointed out by the Supreme Court in State of
Punjab v. Gurmit Singh , victims of sexual harassment
cannot be made to undergo a test of fire about their past
conduct. It was observed by the Supreme Court in the said
decision that even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she cannot be
made a prey for any one and everyone. Therefore, the
observations made in the judgment of this Court in the
Criminal Appeal filed by the Judicial Officer, about the
consent of the petitioner, cannot form the basis for the
disciplinary proceedings against the petitioner. As pointed out
by the Supreme Court in Gurmit Singh, a woman subjected
to sexual assault is not to be treated as an accomplice, but a
victim.

48. In view of the above, the very initiation of the
disciplinary proceedings against the petitioner, is completely
misconceived. The reluctance on the part of the
administration, after the issue of the charge memo in the year
2009, to proceed with the enquiry till the year 2017, is
understandable and justified. But the reluctance ought to
have got converted into a bold step in aborting the
proceedings.

49. In view of the above, W.P.No.34418 of 2017 is
allowed and the charge memo dated 15-05-2009 issued
against the petitioner is quashed. As a consequence, the
grievances of the petitioner raised in the other two writ
petitions do not survive for adjudication. Hence, W.P.Nos.
44927 of 2017 and 2537 of 2018 are closed. There shall be no
order as to costs.

As a sequel thereto, miscellaneous petitions, if any,
pending shall stand closed.

V.RAMASUBRAMANIAN, J

J.UMA DEVI, J
Date: 25-10-2018

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