Andhra HC (Pre-Telangana)
T.S Prakash Rao vs Visakapatnam Port Trust on 17 September, 1999
Equivalent citations: 1999(6)ALD337, 1999(5)ALT657, (2000)ILLJ148AP
ORDER V.V.S. Rao, J.
1. The writ appeal is filed by the unsuccessful petitioner. The writ petition was dismissed by the learned single Judge by an order dated 24-3-1998 , refusing to issue a writ of certiorari in favour of the petitioner. The appellant challenged two orders issued by the respondent, one is a Memorandum bearing No.Cl/PC/TSPR/94 dated 12-9-1994 and the other is an Order bearing No.Cl/PC/TSPR/95 dated 15-5-1995. The appellant prayed for a writ of certiorari to quash both the orders. By an elaborate order, the learned single Judge dismissed the writ petition. Hence this appeal. In this appeal, the parties are referred to as they were referred to in the writ petition.
2. The facts are not in dispute. Briefly stated they are as follows: The petitioner retired as an Executive Engineer (Civil) with effect from 30-11-1993 in the respondent organisation. In the year 1990-91 and 1991-92, the Port Trust called for tenders for the work of sprinkling of water on the roads in the dock area. Nine tenders were received. In the tender notice for the year 1990-91, a special condition was included calling upon the tenderers to furnish details of number of vehicles owned by the contractor and their capacity to handle the work which is difficult and risky. After the scrutiny by a Tender Committee, the Chairman of the Visakhapatnam Port Trust approved the tenders. As per the Port Trust the incorporation of a special condition resulted in poor response from the tenderers causing monetary loss to the tune of Rs.1,06,740/- to the respondent.
3. The respondent by its letter dated 30-11-1993 allowed the petitioner fo retire from the Port Trust with effect from 30-11-1993 A.N. on attaining the age of superannuation without prejudice to the disciplinary action contemplated against him.
4. The Chairman of the Port Trust issued the impugned Memorandum dated 12-9-1994 under Regulation 10 of the Visakhapatnam Port Trust Employees (Classification, Control and Appeal) Regulations, 1968 (hereinafter called as the Regulations) read with Rule 9 of Central Civil Service (Pension) Rules, 1972 (hereinafter called as the Pension Rules). The memorandum says that the proposed enquiry against the petitioner is with respect to the imputations of mis-conduct which resulted in loss of Rs.1,06,740/-. The petitioner was directed to submit a written statement of defence to the memorandum i.e., the show-cause notice of enquiry. The petitioner submitted explanation on 21-10-1994 specifically stating that as he retired 11 months ago, in the absence of any provision in the regulations, disciplinary action against him cannot be initiated. In the explanation, he also denied the imputations. The respondent, then by the second impugned order dated 15-5-1995 appointed Sri Chandy Andrews as an Enquiry Officer under sub-regulation (2) of Regulation 10 and also one Sri K.C. Biswal as Presenting Officer to present the case of the respondent before the Enquiry Officer, in exercise of the powers under sub-regulation (5) of Regulation 10. Aggrieved by the two impugned orders, the petitioner filed the writ petition praying for a writ in the nature of writ of certiorari for quashing the two impugned orders.
5. The respondent filed counter-affidavit inter alia contending as follows: The petitioner was allowed to retire without prejudice to the disciplinary action contemplated against him. In terms of Rule 9(2)(a) of the Pension Rules, if the departmental proceedings are initiated against an employee who is in service, the same shall be continued even after the retirement of the employee. Whereas under Rule 9(2)(b) of the Pension Rules, the departmental proceedings, if any, instituted while the employee was in service before retirement they can always be instituted in respect of mis-conduct which took place four years prior to the initiation of the disciplinary proceedings. As the charge-sheet is issued on 12-9-1994, the same is legal and valid. As retired employees of the respondent are governed by the Pension Rules which are adopted by the respondent, the impugned orders are sustainable. The respondent in its counter-affidavit also justified the charges as well as the disciplinary proceedings which need not be adverted to in this judgment.
6. Before the learned single Judge, the learned Counsel for the petitioner contended that in view of the retirement of the petitioner on 30-11-1993, the impugned orders are wholly unsustainable. This was refused by the Counsel for the respondent relying on Rule 9 of the Pension Rules. The learned single Judge dismissed the writ petition holding that since Rule 9(2)(b) of the Pension Rules permit departmental proceedings within four years of the events, the charge sheet is validly issued.
7. The learned Counsel for the petitioner Smt. Jaya Sree Sarathi contends before us that even if the Central Civil Service Pension Rules are applicable, the respondent cannot initiate disciplinary proceedings against the petitioner without prior permission and sanction of the President of India. She relied on Rule 9 of Pension Rules. On the contrary, the learned Counsel for the respondent Sri K. Srinivas Murthy submits that the Port Trust lias adopted the Central Pension Rules to the extent they are not inconsistent with the provisions of the Major Port Trusts Act, 1963 (Central Act No.38 of 1963, hereinafter called as the Act). The Chairman of the Port Trust being the competent authority in respect of the post held by the petitioner, the disciplinary proceedings initiated in September, 1994 are valid and the prior permission and sanction of the President of India is not necessary.
8. The learned Counsel for the respondent also contends that in fact the petitioner has neither raised this ground nor argued this ground before the learned single Judge to wit., the impugned orders require prior permission or sanction of the President of India. Be that as it may, as we have permitted both the learned Counsel to address on this question and that is the only ground urged before us, the only point that arises for consideration is whether impugned orders are vitiated and illegal for want of prior permission or sanction by the President of India for initiating disciplinary action against a retired employee of the Port Trust.
9. With a view to vest the administration, control and management of major ports in India in duly constituted Port Authorities and for the purpose of other connected matter, the Parliament enacted the Major Port Trusts Act, 1963. The Visakhapatnam Port is a major port and the respondent is a Port Trust constituted under Section 3 of the Act. Chapter 3 of the Act deals with staff of the Board of Trustees of the Port. Section 28 gives power fo the Board of Trustees to make Regulations not inconsistent with the Act providing for conditions of service of the employees of the Port. This is the special power in addition to the general power to make Regulations under Section 123 of (he Act. There is no dispute that in exercise of powers conferred under Section 28 of the Act, the Board made Regulations called the Visakhapatnam Port Tmst Employees (Classification, Control and Appeal) Regulation, 1968. Regulation 10 deals with the procedure for imposing major penalties in respect of the employees of the Port Trust after conducting a detailed disciplinary enquiry. As per Regulation 8, the Chairman of the Board of Trustees is the competent authority to impose penalties including removal or dismissal on the petitioner.
10. The Central Government in exercise of powers under Section 126 read with Sections 28 and 134 of the Act made regulations called 'Major Port Trusts (Adoptation of Rules) Regulations, 1964 (hereinafter called as the Adoptation Regulations). As per Regulation 4 of this Adoptation Regulations, all the existing Rules and Orders and subsequent amendments made by the Central Government from time to time relating to matters specified in clauses (b), (c) and (e) of Section 28 of the Act and matters specified in clause (b) and in clauses (e) to (n) of Section 123 insofar as they are not inconsistent with the provisions of the Act or any Regulations made thereunder shall apply and shall be in force. Therefore, all the Central Government Rules relating to conditions of service of their employees are mutatis-mutandis apply to the employees of the Port Trust including the petitioner. The only requirement and obligation on the part of the respondent is that if any subsequent amendment is made to the Central Government Rules, the same shall not be made applicable to the Port Trust employees unless the Board obtains the approval of the Central Government. This is as per proviso to Regulation 4 of Adoptation Regulations. In the light of the submission made by the learned Counsel for the petitioner, it is useful to notice Rule 9 of the Pension Rules:
"9. Right of President to withhold or withdraw pension :--(1) The President reserves to himself the right of withholding a pension or gratuity, or both, cither 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, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :
Provided that the Union 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 amount of rupee three hundred and seventy five per mensem.
(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 President, that authority shall submit a report recording its findings to the President.
(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 President.
(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 President 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) Deleted.
(4) In the case of 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 69 shall be sanctioned.
(5) Where the President 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 (he statement ofcharges 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...".
11. The heading of the Rule is "Right of the President to withhold or withdraw pension". Sub-rule (I) of Rule 9 saves the right of the President to withhold the pension or gratuity eilher in full or in part if the employee is found guilty in departmental proceedings. The first proviso makes it obligatory to consult the Union Public Service Commission before any order is passed under sub-rule (1) of Rule 9. Sub-rule (2) of Rule visualises two types of disciplinary proceedings which may result in an order being passed under sub-rule (1). First one is where disciplinary enquiry is initiated prior to retiring the delinquent employee. The second situation is that where the departmental proceedings are initiated after the retirement of the employee. In the first situation, the enquiry initiated prior to retirement shall be deemed to be the proceedings for the purpose of sub-rules (1), (2) of Rule 9. In the second case the only prohibition is that no disciplinary enquiry shall be initiated in respect of any event which took place more than four years before such institution.
12. We have noticed that the Chairman of the Board of Trustees of the Port is competent to impose any of (he penalties under Regulation 8 of the Regulations. Withholding of pension or gratuity either in full or in part is not one of the penalties adumbrated in Regulation 8. The disciplinary enquiry in respect of a retired delinquent employee may as well result in recommending a penalty other than the compulsory retirement, removal or dismissal but including reduction of pension or gratuity. Therefore, even if the contention of the Counsel for the petitioner is to be accepted, the proceedings have not reached the stage where the President of India that is to say, the Central Government is exercising the power under sub-rule (I) of Rule 9 i.e., withholding of pension. By virtue of the Adoptation Regulations, sub-rule (2) of Rule 9 gets incorporated into the Regulations and no prior sanction or prior permission of an outside authority is necessary. In such an event, it is always possible for one to contend that the Chairman of the Port Trust has abdicated duties while issuing the charge-sheet or imposing a punishment under Regulation 8. Therefore, such an interpretation would result not only in absurdity but rendering Regulation 8 read with Regulations 2(b), 6, 9 and 20 and schedule to the Regulations unconstitutional. It is well settled that the Court should interpret any provision of law or a statutory instrument having force of law in such a manner that they are not rendered constitutionally invalid. Therefore, the interpretation of the learned Counsel for the petitioner is without any substance and the same is rejected.
13. The other aspect of the contention is that virtue of sub-rule (1) of Rule 9, the respondent ought to have taken prior permission or sanction of the President of India before issuing the impugned charge memo. It is also submitted that it is only the President who can initiate enquiry against the delinquent retired employee like the petitioner herein. This submission is to be noted only to be rejected.
14. We have referred to the relevant and important provisions of the Act. We have also referred to the Regulations, the Pension Rules and Adoptation Regulations. The President of India or the Central Government have no control what-so-ever except to a limited extent as indicated in the Act and the Regulations and the Adoptation Regulations. As per Regulation 1 1 of the Regulations, consultation with the Central Government is necessary only where it is obligated or mandated by the provisions of law in which event the respondent has to forward the record of enquiry to the Central Government. There cannot be any dispute that in respect of the posts covered by clause (a) of subsection (1) of Section 24, it is only the Central Government which can impose penalties and in such a situation, the proviso the Regulation 11 (3) conies into play. It is not the case of the petitioner that he is the Head of the Department governed by Section 24 of the Act. Therefore, we reject this contention. It is also to be seen that the Regulations in all other cases do not make it necessary to consult the Central Government. Therefore, any restriction on the power of the Chairman, Board of Trustees in initiating disciplinary proceedings (either against an employee in service or against a retired employee) as suggested by the learned Counsel for the petitioner would be inconsistent with the provisions of the Regulations. That is not the intention of the Act, Rules or Regulations and therefore the contention is untenable. No other submission is neither raised nor made before us.
15. For the reasons aforementioned, we do not find any error in the impugned Judgment of the learned single Judge. We confirm the same. The writ appeal is dismissed with costs quantified at Rs.2,000/-.