Civil Appeal No.1428-1428 Of 2013 (Arising Out Of S.L.P. (C) Nos. 24224-24225 of 2008). Case: The Government of Andhra Pradesh and Others Vs Ch. Gandhi. Supreme Court
|Case Number:||Civil Appeal No.1428-1428 Of 2013 (Arising Out Of S.L.P. (C) Nos. 24224-24225 of 2008)|
|Party Name:||The Government of Andhra Pradesh and Others Vs Ch. Gandhi|
|Counsel:||For Appellant: G.N. Reddy, Adv. and For Respondents: R.S. Krishnan and C.S.N. Mohan Rao, Advs.|
|Judges:||K. S. Radhakrishnan & Dipak Misra, JJ.|
|Issue:||Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 - Rules 9(vii), 11 (27)(27(ii)); Constitution of India - Articles 14, 16, 20(1); Indian Penal Code - Section 420; Income-tax Act, 1961 - Section 271(1)(a); Income-tax Act, 1922 - Section 28|
|Citation:||2013 (III) AD 437 (SC), AIR 2013 SC 2113, 2013 (3) ALD 32, 2013 (137) FLR 143, JT 2013 (3) SC 131, 2013 LabIC 1652, 2013 (2) SCALE 646, 2013 (5) SCC 111, 2013 (2) SCT 208 (SC)|
|Judgement Date:||February 19, 2013|
Dipak Misra, J.
The present appeals by special leave are directed against the judgment and order dated 14.6.2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 12177 of 2007 and the order dated 8.2.2008 passed in Review WPMP (SR) No. 126152 of 2007 arising from the said writ petition whereby the Division Bench overturned the order dated 16.5.2007 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short "the Tribunal") in O.A. No. 923 of 2006 on the ground that the disciplinary authority had imposed two major penalties. Be it noted, the High Court granted liberty to the department to pass appropriate orders keeping in view the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "the Rules").
The facts which are imperative to be adumbrated are that a disciplinary proceeding under Rule 5 of the Rules was initiated against the respondent, a Senior Accountant in the Office of the Sub Treasury, Nakrekal, on the charges that while functioning as the senior most Accountant in the said office and in-charge of the strong room keys, at the time of surprise check by the Deputy Director, District Treasury, Nalgonda, he was absent and had not signed the attendance register in token of his having attended the office and also not maintained the movement register as required under the Rules; that he had failed to keep the currency chest book in the currency chest and not endorsed every transaction; that he had passed the bills, cheques and challans in token of approval of the payment/receipts without signing them; that he had not properly maintained the strong entrants' register which was found outside the strong room and further the entries were not recorded and signed by him; that he had failed to remain present at the time of depositing money or withdrawing money from the currency chest and allowed others to operate the currency chest by using the keys of joint custodian; and that he had failed to submit the currency chest slip to R.B.I. on 15.4.2003 in respect of the currency chest transactions of 15.4.2003 and also failed to submit the daily sheets of 15.4.2003 and 16.4.2003.
An Enquiry Officer was appointed to enquire into the charges and he submitted the report that the charges were proven. On the basis of the enquiry report, the disciplinary authority, after following the requisite procedure, imposed the penalty of reversion to the post of Junior Accountant for two years with the stipulation that there would be postponement of future increments.
Aggrieved by the said punishment, the respondent approached the Tribunal in O.A. No. 923 of 2006 and raised various points assailing the validity of the initiation of the proceeding, the manner in which the enquiry was conducted and lastly, that the punishment imposed was disproportionate to the misconduct. The Tribunal referred to the Rule position and came to hold that there was no illegality or irregularity in the initiation of the disciplinary proceeding, framing of charge or conduct of the enquiry and further, regard being had to the gravity of the charge, the punishment could not be treated to be disproportionate. Being of this view, the Tribunal dismissed the original application.
The failure before the Tribunal compelled the respondent to invoke the jurisdiction of the High Court which, after adverting to the facts in detail and the competence of the person who had initiated the proceeding by issuing the memorandum of charges, came to hold that the findings recorded by the Tribunal on the said scores were absolutely defensible and did not warrant any interference. As far as the imposition of punishment was concerned, a contention was advanced that he had been imposed two major penalties which were not in consonance with the Rules. The High Court referred to the order of punishment, Rule 9 of the Rules that deals with major penalties and sub-Rule 27 of Rule 11 of the said Rules and came to hold that the penalty imposed by the disciplinary authority did amount to imposition of two penalties and, accordingly, set aside the punishment which had been concurred with by the tribunal and clarified that the said overturning of the orders would not preclude the authorities to pass appropriate orders pertaining to punishment keeping in view the provisions of the Rules.
Calling in question the legal propriety of the said order, it is urged by Mr. G.N. Reddy, learned counsel for the State and its functionaries, that the High Court has erroneously opined that two major penalties had been issued in violation of the Rules though reversion to the lower post for a period of two years with the stipulation of postponement of future increments on restoration to higher category does not tantamount to two major penalties under Rule 9 and, under no circumstances, it contravenes sub-rule (27) to Rule 11 of the Rules. It is his submission that the said punishment, being in consonance with the Rules and further such imposition of punishment not being unknown to service jurisprudence, did not warrant interference by the High Court. The learned counsel further canvassed that the amended Rules permit imposition of such punishment but the same has not been taken note of by the High Court which makes the order absolutely vulnerable.
Mr. R.S. Krishnan, learned counsel appearing for the respondent, resisting the aforesaid proponements, contended that the interpretation placed by the High Court on the Rules cannot be found fault with inasmuch as the language employed in the Rules is absolutely plain, clear and unambiguous and, on a careful reading of the same, it is manifest that under the Rules, imposition of two major penalties is not permissible. It is further urged by him that when the language employed in the Rules has been differently couched and both the employer and employee are bound by the Rules, what could be jurisprudentially permissible need not be adverted to in this case. The learned counsel would further submit that the delinquent employee could not have been imposed such a punishment under Rule 9 of the Rules prior to its amendment as his case would be governed by the unamended Rules since the disciplinary proceeding was initiated prior to the amendment and, at that time, the punishment that was imposed was not envisaged.
In reply, the learned counsel for the State submitted that the respondent would be governed under the new Rules as clause (vii) of Rule 9 has been substituted and the term "substituted" conveys that the Rule has retrospective effect. That apart, it is propounded that even if the rules are not treated as retrospective, the appellant had no vested right to be imposed a particular punishment under the unamended Rules.
At the very outset, we may clearly state that we are not concerned with the delinquency of the incumbent or the findings recorded in the disciplinary proceeding that has been conducted. We are also not required to address whether the competent authority had initiated the departmental proceeding, for the respondent has not assailed the order passed by the Division Bench of the High Court and it is only the State which has come up in appeal. Thus, the only aspect that requires to be dwelled upon is whether the punishment could be imposed in accord with the amended Rules or under the unamended Rules.
It is apt to note here that the punishment was imposed on 1.12.2005. The relevant part of the order passed by the Director of Treasuries and Accounts is reproduced below: -
After a detailed examination of the inquiry report and the explanation of the charged officer, the disciplinary authority finds that the charges framed against Sri Ch. Gandhi the then Senior Accountant and incharge Sub Treasury Officer, Sub Treasury (non-banking) Nakrekal have been proved. After careful consideration of the material facts and records and explanation of the individual, in exercise of the powers conferred under Sub Rule 27(ii) of Rule 11 read with Sub Rule (vii) of rule 9 of A.P.C.S. (C.C. & A) Rules, 1991 hereby awards a punishment of reversion to the lower post of junior accountant for two years with effect on postponing future increments on restoration to the higher category on Sri Ch. Gandhi, presently working as senior Accountant with immediate effect.
Regard being had to the nature of the punishment, it is necessary to scrutinize the Rule position. After the amendment on 6.12.2003, the relevant part of Rule 9 which provides for major penalties is as follows: -
vi) withholding of increments of pay with cumulative effect (G.O.Ms. No. 205, GA (Ser.C) Dept. dt. 5.6.98);
vii) (a) save as provided for a in clause (v)(b), reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;
vii) (b) reduction to lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or service from which he was reduced, with or without further directions, regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; (G.O.Ms. No. 373, G.A.(Ser.C) Dept., dt: 6.12.2003)
viii) compulsory retirement;
ix) removal from service which shall not be a disqualification for future employment under the Government;
x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
Sub-rule (27) of Rule 11 which has been relied on by the High Court reads as...
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