Andhra HC (Pre-Telangana)
P. Ramachander Chetty vs Engineer-In-Chief, Panchayat Raj ... on 25 April, 2001
Equivalent citations: 2001(3)ALD558
Author: S.B. Sinha
Bench: Satya Brata Sinha
ORDER
S.B. Sinha, CJ
1. The petitioner seeks judicial review of the judgment dated 16-10-2000 of the A.P. Administrative Tribunal (for short 'the Tribunal'). By the said judgment, the Tribunal dismissed the OA No.794 of 2000, filed by the petitioner seeking a direction to the respondents to pay interest on gratuity and other delayed retired benefits.
2. The petitioner was working as Assistant Engineer in Panchayat Raj Department. It is appears that the Superintending Engineer issued a show-cause notice to the petitioner pointing out certain lapses in March, 1988. The petitioner submitted his explanation, and no further action was however taken against him. In the meanwhile, the petitioner was allowed to retire from service on 30-6-1988 on attaining the age of superannuation.
3. The petitioner, however, was sanctioned 50% provisional pension and Group Insurance amount, Family Fund and Surrender Leave. Pension, gratuity and commutation were withheld purportedly on the ground that departmental enquiry was pending against him. The petitioner made a representation, whereupon respondent No.1 issued proceedings dated 30-3-1991 withholding the pensionary benefits to the extent of Rs.63,505/- consisting of two components namely Rs.27,505/- towards commutation value of pension and Rs. 36,000/- towards gratuity. It appears that pursuant to the said show-cause notice issued by the Superintending Engineer in March, 1988, an Enquiry Officer was appointed and after due enquiry the said Enquiry Officer gave a finding that the petitioner is not responsible for any lapse, which allegedly resulted in loss to the Government. The petitioner, therefore, filed OA No. 379 of 1993 challenging the proceedings C1/35501/86, dated 30-3-1991, issued by respondent No.1 inter alia contending that the enquiry initiated against him is itself without jurisdiction, and that withholding of pension and gratuity is contrary to Rule 9 of the A.P. Revised Pension Rules, 1980 (for short 'the Pension Rules').
4. By order dated 22-4-1994, OA No.379 of 1993 was disposed of directing the respondents to dispose of the appeal filed by the petitioner within a period of two months. The Government by memo dated 12-8-1994 confirmed the proceedings of respondent No.l dated 30-3-1991 withholding commutation value of pension and gratuity. Therefore, challenging the orders of the Government, confirming the orders of the Engineer-in-Chief, the petitioner again approached the Tribunal by filing OA No.7474 of 1994 praying for directions to the respondents to pay Rs.36,000/- towards gratuity and to release Rs.27,505/- withheld from the pension, and for other amounts. The Tribunal by judgment dated 22-2-1995 allowed the OA, and the petitioner was paid an amount of Rs.27,505/-. The respondents appear to have addressed the Government to pay an amount of Rs.36,000/- withheld from the gratuity. It appears that the Government did not pass any orders as required under Rule 9 of the Pension Rules. Therefore, the petitioner filed yet another OA being OA No.7375 of 1996 before the Tribunal claiming an amount of Rs.36,000/- towards gratuity which was withheld by the Engineer-in-chief and also interest amounting to Rs.1,94,919/- as on 30-6-1996. When the matter was pending before the Tribunal, respondent Nos.1 to 3 released gratuity payment order dated 18-6-1997 authorising payment of gratuity of Rs. 21,366/-. However, the amount was not duly paid, and was shown as recovery towards alleged excess pay and allowance paid to the petitioner. The remaining amount of Rs.14,634/- for some inexplicable reasons was withheld. Simultaneously by order dated 6-6-1996, respondent No.l also cancelled the special promotion post given to him on completion of 15 years of service. Therefore? he filed OA, being OA No.5231 of 1997 to set aside the orders of respondent No.l cancelling the promotion. The said OA was allowed on the ground that before canceling no prior notice was issued to the petitioner. On 30-6-1998, OA No.7375 of 1996 was disposed of by the Tribunal directing the petitioner to make a representation to the Government, and the Government was directed to consider the same in accordance with the Rules, executive instructions and the judgment of the Supreme Court reported in S.R. Bhanrale v. Union of India, .
5. In accordance with the judgment of the Tribunal in OA No.7375 of 1996, the petitioner made a representation on 7-7-1998 claiming interest, including gratuity amounting to Rs.2,74,000/- as on 30-6-1998. The Government in turn by memo dated 31-8-1998 requested respondent No. 1 to take further action in the matter and pay retrial benefits to the petitioner as per the orders of the Tribunal in OA No.7375 of 1996. Respondent No.l by memo No.4547/98, dated 9-9-1998 rejected the representation dated 7-7-1998 made by the petitioner by passing the following order:
6. With reference to his representation 2nd cited Sri P. Ramachandraiah Chetty, Assistant Engineer, Panchayat Raj, Zone-IV retired is informed that the same was examined in the light of orders of the APAT dated 13-6-1998 his request for payment of interest cannot be considered as per the Rules in force.
7. The order dated 9-9-1998 was challenged before the Tribunal in OA No.794 of 2000. The Tribunal rejected the said OA for the following reasons:
From the material papers, it is seen that the amount due to the applicant under gratuity ie., Rs.21,366/- has been adjusted towards the excess payment made to him under erroneous fixation of pay and the balance amount of Rs.14,634/- has been adjusted against the recovery orders for an amount of Rs.63,505/- passed against the applicant in the disciplinary proceedings which the applicant faced. These recovery orders have been given after due notice to the applicant and taking into consideration the explanation submitted by the applicant. Accordingly, from the material papers, it is seen that the applicant has still to pay an amount of Rs.48,871/- to the Government and no amount now is due to the applicant under gratuity. If no amount is payable to the applicant, the question of payment of interest thereon does not arise.
8. Challenging the aforesaid order, the petitioner filed the present writ petition, and by way of interim relief, he sought for payment of an amount of Rs.6,37,900/-, pending disposal of the writ petition. While admitting the writ petition on 4-12-2000, this Court rejected the prayer in the WPMP holding that the interim relief sought in the application is substantially similar to the one prayed for in the writ petition. The petitioner again filed WPMP No.416 of 2001. When it came up before us on 30-3-2001, as the petitioner was unable to express himself, we requested Mr. D. Linga Rao, learned Advocate practising in this Court to assist this Court.
9. Mr. D. Linga Rao submits that the Superintending Engineer served show-cause notice alleging loss to the Government due to lapses on the part of the petitioner on the verge of his retirement. Though the petitioner replied to the show-cause notice, the petitioner was not retained in service and no action was taken. Further, even the Enquiry Officer appointed by the Superintending Engineer categorically held that the petitioner is not guilty of lapses, which allegedly resulted in loss to the Government. However, the Engineer-in-Chief, who is the appointing authority, passed orders without any notice to the petitioner on 30-3-1988 withholding the pensionary benefits and gratuity. It is submitted that the enquiry initiated by the Superintending Engineer is without jurisdiction and incompetent. In any event, when the Enquiry Officer has given findings in favour of the petitioner holding that the delinquent is not responsible for the alleged loss to the Government, the appointing authority/ disciplinary authority cannot differ from the findings of the Enquiry Officer without giving prior notice as required under law. He further submits that as per the Pension Rules when the pension or gratuity is withheld respondent No.l is not competent and it is only the Government which is competent to pass order under Rule 9 of the Pension Rules.
10. Mr. Samson Babu, learned Government Pleader for Services-Ill submits that without any basis the petitioner wants to claim exhorbitant sum towards interest, to which he is not entitled to. Further after conducting due enquiry, it was ordered to withdraw the pension amounts, and later when the OA was filed the amount of commutation was duly paid. However, after due verification it was found that the petitioner was paid excess amount towards pay and allowances, and therefore, it was ordered to be recovered. There is no infirmity or illegality in the procedure followed by the respondents and ordering the recovery of excess amounts paid to the petitioner.
11. The only point that arises for consideration is whether respondent No.l is competent to order withholding of the pension and gratuity amounts in respect of retired Government employees.
12. The petitioner, admittedly belongs to A.P. Panchayat Raj Department (Engineering Service), which is governed by A.P. Panchayat Raj Subordinate Service Rules, 1963 (for short 'the Rules'). As per Rule 7 of the Rules, the Engineer-in-Chief-respondent No.l is the appointing authority. Further, under Rule 13-A of the A,P. Civil Services (classification, Conduct and Appeal) Rules, 1963 the competent authority to take action against the petitioner is the appointing authority, and therefore, the issuance of charge memo in March, 1988 by the Superintending Engineer and all consequential proceedings of conducting enquiry etc., are ex-facie illegal and cannot be sustained.
13. Further it is well settled by the judgment of the Supreme Court in Punjab National Bank v. Kunj Bihari Misra, and Yoginadh Bagde v. State of Maharashtra, , that when disciplinary authority differs from the findings of the Enquiry Officer, the delinquent officer should be given an opportunity of being heard. Therefore while passing orders dated 30-3-1988, respondent No.l appears to have not given any notice to the petitioner, and therefore, the order is vitiated and cannot be sustained. The learned Counsel for the petitioner further submitted that mere negligence in performance of duty or a lapse in the performance of duty does not amount to misconduct, and in support of this contention, he placed reliance upon the judgment of the Supreme Court in Union of India v. Ahmed, , wherein it was held thus:
.... It is however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty, but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more than deliberate wickedness of malevolence.
14. Further more, as per Rule 9 of the Pension Rules, it is only the Government that is competent to withhold pensionary benefits and gratuity payable to a retired employee duly recording reasons thereof. Rule 9 of the said rules reads thus:
Right of Government to withhold or withdraw pension :--(1) The State Government reserves themselves the right of withholding a pension or gratuity or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement :
Provided that Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed;
Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the government servant had continued in service :
Provided that where the departmental proceedings are instituted by an authority subordinate to the State Government, that authority shall submit a report recording its findings to the State Government,
(b) The Departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-
(i) shall not be instituted save the sanction of the Government;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the State Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3) x x x x x x (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 52 shall be sanctioned.
(5) Where the State Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) Judicial proceedings shall be deemed to be instituted.
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the magistrate takes cognizance, is made; and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.
15. A plain reading of Rule 9 shows that if departmental proceedings are initiated before retirement of the employee, they shall be continued as if the Government servant is continuing in service, and any amounts are to be withheld for misconduct during service, the reasons should be disclosed in the order. In this case, the order dated 30-3-1988 or the order impugned before the Tribunal dated 9-9-1998 does not disclose any reasons. Besides, the Engineer-in-Chief, respondent No.l is not competent to pass the orders of withholding the pension or gratuity under Rule 9 of the Rules. The Apex Court in D, V. Kapoor v. Union of India, , while considering the power of the President to withhold pension of a retired employee under Rule 9 held:
Rule 9 of the Rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 41 of the Constitution. The exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty whole in office, subject of the charge. In the absence of such a finding the President is without authority to withhold pension as a measure of punishment either in while or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60/-.
16. The narration of facts leading to filing of this writ petition supra, leaves us in dismay that though the petitioner retired from service on 30-6-1988 he is forced to move from pillar to post to get his benefits due on the ground that there are lapses on his part and on the ground that the excess amounts were paid to him, the petitioner was not paid his dues. We feel persuaded that there is some truth in the submission made by Mr. D. Linga Rao, learned Counsel for the petitioner that the petitioner has been subjected to vindictive attitude. Though he retired in 1988, ultimately he was paid part of the gratuity only on 30-4-1991 duly withholding other amounts. Therefore, we deem it a fit case to compensate the petitioner by way of interest having regard to his age and the conduct of the respondents which forced the petitioner to repeatedly move the Tribunal.
17. In the facts and circumstances, and for the aforesaid reasons, we allow the writ petition, and a direction shall issue to the respondents to pay the petitioner all his dues of retirement, gratuity, commutation of pension etc., with interest at the rate of 12% per annum from the date they fell due for payment till realisation. The respondents shall pay costs of this proceedings, which we fix at Rs.2,000/-, to the petitioner.
18. Before parting with the case, we place on record our appreciation to Mr. D. Linga Rao for assisting this Court in adjudicating the writ petition.