Telangana High Court
Government Of A.P.,Rep.By Prl. Secy., ... vs G. Devender Reddy, Karimnagar Dist., ... on 2 August, 2022
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
WRIT PETITION No.1024 of 2010
ORDER:(Per Hon'ble Sri AKS,J) This Writ Petition, under Article 226 of the Constitution of India, is filed seeking to issue writ, order or direction, more particularly in the nature of writ of certiorari calling for the records relating to order, dated 08.07.2009 in O.A.No.7622 of 2003 on the file of A.P.Administrative Tribunal, Hyderabad, and to quash or set aside the same as erroneous and contrary to law.
2. Heard learned Government Pleader for Services-I, appearing for the petitioners and Sri J.Kanakaiah, learned counsel for the respondent.
3. It has been contended by the petitioners that the respondent was appointed as Police Constable and while he was discharging his duties, the respondent was involved in a criminal case in Crime No.25 of 1995 on the file of Ramagundam Police Station for the offences punishable under Sections 302 and 304(B) of IPC. A regular departmental enquiry was conducted AKS,J&GAC,J wp_1024_2010 2 and the Enquiry Officer has submitted a report holding that the charge levelled against the respondent held to be proved. Based upon the proved misconduct, the Disciplinary Authority has imposed a major punishment on 27.05.1997 and thereafter, the respondent has preferred an appeal and the same was rejected vide orders, dated 02.08.1997. Thereafter, the respondent filed an appeal before the competent Court in Sessions Case No.356 of 1994 and the learned Sessions Judge vide Judgment, dated 21.02.1997, was pleased to acquit the respondent. Thereafter, the respondent preferred revision to the revisional authority and the revisional authority was pleased to modify the punishment of removal to that of reduction in time scale of pay for two stages for a period of two years with effect on future increments and pension, vide orders, dated 12.12.1997 and the suspension period was not treated as duty. Aggrieved by the same, the respondent had preferred Mercy Petition before the Government and the Government vide order, dated 09.10.1998 was pleased to dismiss the said Mercy Petition.
4. Learned counsel appearing for the petitioners had further contended that nearly after five years from the date of AKS,J&GAC,J wp_1024_2010 3 dismissal of the mercy petition, the respondent has challenged the orders passed by the revisional authority in modifying the punishment of removal to that of reduction in time scale of pay for two stages for two years with effect on future increments and pension by filing O.A.No.7622 of 2003 and the Tribunal vide orders, dated 28.07.2009 was pleased to allow the O.A. in part without appreciating any of the contentions raised by the petitioners.
5. Learned counsel for the petitioners had further contended that the revisional authority has taken a lenient view and also the fact that the respondent was acquitted in Sessions case i.e., S.C.No.356 of 1991, dated 21.02.1997 by modifying the punishment of reduction in time scale of pay for two stages for two years which would effect on future increments and pension. But, the Tribunal has not appreciated that the revisional authority has already taken a lenient view and reinstated the respondent by setting aside the punishment of removal and imposed a nominal punishment of reduction of pay of two stages and it has interfered with the punishment, as modified by the revisional authority, by making it the punishment as without AKS,J&GAC,J wp_1024_2010 4 cumulative effect and also effect on pension by misconstruing the Rule and Tribunal erred in holding that Rule 9 was subsequently amended vide G.O.Ms.No.373, dated 06.12.2003, wherein a new punishment i.e., withholding of increments of pay with cumulative effect was brought in when the rules only in 2003 and such a punishment of cumulative effect on increments as well as the effect on pension could not have been issued by the revisional authority.
6. Learned counsel for the petitioners had contended that when revisional authority has modified the punishment of removal, it has taken into consideration various facts and imposed a punishment of reduction of pay by two stages, which will have effect on future increments and pension was commensurate to the party. Therefore, the Tribunal ought not to have interfered with the punishment and further directed the petitioners to pass orders under Rule 54 B of the Fundamental Rules in respect of treating of suspension period. Therefore, appropriate orders be passed in the writ petition by setting aside the orders passed by the Tribunal in O.A.No.7622 of 2003, dated 08.07.2009. Learned counsel for the petitioners contended that AKS,J&GAC,J wp_1024_2010 5 the Tribunal would not have further modified the punishment, as modified by the revisional authority, at best the Tribunal would have remanded the matter to the authorities to pass any other order, in accordance with the Rules. Therefore, on this count also, the Tribunal erred and the orders of the Tribunal be set aside and writ petition may be accordingly allowed.
7. Learned counsel for the respondent had contended that the revisional authority has no doubt taken a lenient view by modifying the punishment of removal to that of reduction of pay by two stages for a period of two years with cumulative effect and effect on pension. However, the revisional authority would not have imposed a punishment, which is not enumerated as per the regulations. Admittedly, when the revisional authority has considered the revision on 12.12.1997, there was no punishment in the regulations of imposing any punishment with cumulative effect. The cumulative effect concept has come into rules only by amending Rule 9 vide G.O.Ms.No.373, dated 06.12.2003. Therefore, the Tribunal was justified in taking away the effect of cumulative effect on increments as well as effect on pension by interpreting the Rules. Any punishment which is enumerated in AKS,J&GAC,J wp_1024_2010 6 the Rules only can be imposed. Therefore, the Tribunal has considered the entire case and rightly party allowed the O.A. Therefore, there are no merits in the writ petition and it is liable to be dismissed.
8. This Court having considered the rival submissions made by learned counsel for respective parties, is of the view that when the revisional authority was revising the orders, dated 12.12.1997, there was no punishment of reduction of time scale of pay for stages for two years with effect on future increments and that the pension was not one of the enumerated punishment since only reduction in time scale of pay for two stages for two years is enumerated in the Rules and the revisional authority has exceeded its jurisdiction by imposing the punishment, which will have effect on future increments and pension. Therefore, the Tribunal was justified in partly allowing the OA with the following observations:
"The punishment imposed by the Appellate Authority is reduction of Time Scale of Pay for two stages for two years with effect on future increments and pension. It was imposed on 12.12.1997. By that the punishment prescribed under Rule 9 (iv) of the APCS (CC&A) Rules, reads as follows:-
"(iv) Withholding of increments of pay without cumulative effect."
AKS,J&GAC,J wp_1024_2010 7 This Rule 9 was subsequently, amended in G.O.Ms.No.373, GAD, dated 06.12.2003 in the following effect.
"(iv) withholding of increments of pay with cumulative effect"
Therefore, the punishment prescribed in the Rules as on the date of penalty alone has to be taken into account. AS per the punishment prescribed there was no cumulative effect or effect on pension. That was only introduced subsequently in the year 2003. So, the clause that "with effect on future increments and pension" is to be modified as it is not authorized by the then Rules. Therefore, the punishment is to be modified to that of "reduction in Two Scale of Pay by two stages for two years."
The next question is, treatment of the periods of un-authorized absence, suspension and out of employment. They are treated as 'not on duty.' Under Rule 8 clause 3 of APCS (CCF&A) Rules, when the dismissal or penalty of dismissal or removal or compulsory retirement was set aside in Appeal, the period covered by the same, shall be treated to be period under suspension. So, the period of removal shall also be treated as deemed to be under suspension.
Under FR 54 (B), regarding the treatment of period of suspension after the enquiry is over, the Government employee must be given an opportunity and option whether he wants to treat the period of absence as eligible leave. But that was not done in this case. So, treatment of the period of suspension and absence as 'not on duty' is bad under law. The employee should be given an opportunity regarding the treatment of the period of suspension as 'on leave' , in which he was eligible.
AKS,J&GAC,J wp_1024_2010 8 Therefore, the Application is allowed in part. The finding that the applicant is guilty of misconduct is confirmed. But the penalty is modified to the following:
"Reduction of Time Scale of Pay by two stages for a period of two years only."
The clause regarding "with cumulative effect and effect on pension" is removed. The respondents are directed to give an option to the applicant under FR.54 (B) regarding treatment of the said period of absence and suspension and removal as eave eligible and to pass orders accordingly and to give all the consequential benefits to the applicant within a period of a week from the date of receipt of this order."
9. As the revisional authority has treated the entire period of suspension as "not on duty", which is also found faulted by the Tribunal, it is for the disciplinary authority or revisional authority to consider as to how the suspension period has to be dealt with according to the Fundamental Rule 54 B. Therefore, the Tribunal was justified in directing the petitioner to consider the case of the respondent for treating the suspension period as per the fundamental Rule 54B. Therefore, this Court is not inclined to interfere with the order passed by the Tribunal. Accordingly, the Writ Petition is liable to be dismissed.
AKS,J&GAC,J wp_1024_2010 9
10. According the Writ Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
___________________________________ ABHINAND KUMAR SHAVILI, J _____________________________________ G.ANUPAMA CHAKRAVARTHY, J AUGUST 2, 2022 YVL AKS,J&GAC,J wp_1024_2010 10 THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HONOURABLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY WRIT PETITION No.1024 of 2010 Date: 02.08.2022 YVL