Andhra HC (Pre-Telangana)
J. Janaki Ramaiah vs Government Of Andhra Pradesh And Others on 2 February, 2001
Equivalent citations: 2001(2)ALD256, 2001(2)ALT97
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. Although this matter was listed under the heading, 'for interlocutory orders', by consent of the parties, the main writ application was treated as on the day's list for hearing.
2. The petitioner herein is aggrieved by an order dated 29-6-1998 passed by the A.P. Administrative Tribunal in OA No.5179 of 1996 whereby and whereunder his application for setting aside an order of punishment and dismissed.
3. The petitioner was an employee of the State. He retired in the year 1993. However, purported to be on the charge of defalcation, disciplinary proceedings have been initiated and a punishment was imposed on him in the year 1995. A criminal case was also initiated against the petitioner which ended in acquittal.
4. The only question which arises for consideration is as to whether the impugned order of punishment was illegal.
5. There cannot be any doubt whatsoever that after an employee retires from service, only in terms of the provisions of Rule 9(2) of the Pension Rules action can be taken against him. Rules 8 and 9(2) of the A.P. Revised Pension Rules, 1980 read thus:
8. Pension subject to future good conduct :--(1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules.
(b) The pension sanctioning authority may, by order in writing, withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:
Provided that no such order shall be passed by any authority subordinate to the authority competent to make an appointment to the post held by the pensioner immediately before his retirement from service;
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45.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) Where a pensioner is convicted of a serious crime by a Court of law, action under sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction.
(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1)-
(a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal, and
(b) take into consideration the representation, if any, submitted by the pensioner under clause (a).
(4) Where the authority competent to pass an order under sub-rule (1) is the Government, the Andhra Pradesh Public Service Commission shall be consulted before the order is passed.
(5) An appeal against an order under sub-rule (1), passed by any authority other than the Government shall lie to the Government and the Government shall, in consultation with the Andhra Pradesh Public Service Commission, pass such orders on the appeal as it deems fit.
Explanation :--(a) The expression 'serious crime' includes a crime involving an offence under Official Secrets, Act, 1923 (Central Act 19 of 1923);
(b) The expression 'grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch plan, models, articles, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (Central Act 19 of 1923) which was obtained while holding office under the Government so as to prejudicially effect the interests of the general public or other security of the State."
"9. 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 the Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed;
Provided further 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 with 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.
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6. Rule 9(2) envisages imposition of punishment by the State and not by the disciplinary authority. In the instant case, the punishment has been imposed by the Chief Executive Officer and thus the same is per se illegal. It further appears that no enquiry was conducted in the departmental proceedings. The enquiry officer was appointed to consider the judgment passed by the criminal Court and sought to appreciate the evidence led before it, as if he was sitting in appeal over the judgment of the said Court. It was not permissible in law. In Kesoram Cotton Mills v. Gangadhar, and in Khardah and Company v. The Workmen, , it has been held that enquiry must be fair and reasonable. In the instant case, no enquiry worth the name has been held at all.
7. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The order of punishment imposed upon the petitioner is set aside and the writ petition is allowed. There shall be no order as to costs.