WP/19035/2005 of Government of A.P., rep by Secretary to Government Finance Vs B. Radhaiah S/o Venkataiah on 31 December 2013

Conclusion

HON’BLE SRI JUSTICE R. SUBHASH REDDYAND

HON’BLE SRI JUSTICE A.SHANKAR NARAYANA

WRIT PETITION Nos.19035 and 25640 of 2005

Dated: 31.12.2013

Between:

Government of A.P., rep. by its Secretary,Finance (Admn.III) Department & others.

And

…..Petitioners

B.Radhaiah.

…..Respondent

HON’BLE SRI JUSTICE R. SUBHASH REDDYANDHON’BLE SRI JUSTICE A.SHANKAR NARAYANA

WRIT PETITION Nos.19035 and 25640 of 2005COMMON ORDER: (Per Justice R. Subhash Reddy)

As the respondent in these two writ petitions is theapplicant before the A.P. Administrative Tribunal,Hyderabad, in O.A.Nos.4709 of 2002 and 3004 of 2004,both the writ petitions are heard together and are beingdisposed of by this common order. For the purpose ofdisposal, we refer to the facts as arise in W.P.No.19035 of2005.

2. Respondents in O.A.No.4709 of 2002 have filed thewrit petition in W.P.No.19035 of 2005, questioning theorder dated 09.12.2004, passed by the Tribunal in thesaid O.A. By the common order passed in the aforesaidO.A. and O.A.No.3004 of 2004, the Tribunal has allowedthe applications filed by the respondent herein underSection 19 of the Administrative Tribunals Act, 1985.

3. The respondent/applicant herein is a Governmentservant worked in various capacities in the Treasury Unit of Nellore and retired as Sub-Treasury Officer on 30[th]June 2000. When he was in service, the Anti-CorruptionBureau took up investigation against him on the allegationthat he was possessing assets disproportionate to hisknown sources of income and he was prosecuted for theoffence under Section 13(2) read with 13(1)(e) of thePrevention of Corruption Act, 1988. Subsequently, hewas retired from service on attaining the age ofsuperannuation. After his retirement, disciplinaryproceedings were initiated against him under the A.P.Revised Pension Rules, 1980. Alleging that therespondent/applicant has acquired assetsdisproportionate to the known sources of income by wayof corrupt practices, the Government has issued orders inG.O.Ms.No.357, Finance (Admn.I) Department, dated15.03.2002, for initiation of departmental proceedings byfollowing the procedure under Rule 20 of the A.P.CivilServices (Classification, Control and Appeal) Rules, 1991,by appointing one Sri Jagan Mohan Goud, DeputyDirector, Ongole as Inquiry Officer and Sri Surendra Babu,District Treasury Officer, Nellore, as Presenting Officer. Inthe same proceedings, sanction is granted as requiredunder Rule 9(2)(b)(i) of the A.P. Revised Pension Rules,1980. On the very same day, another G.O. is issued inG.O.Rt.No.587, Finance (Admn.I) Department, dated15.03.2002, framing articles of charges against therespondent/ applicant, alleging that; (1) while working in various capacities in the Treasury department during theperiod from 09.06.1996 to 20.06.1998, he obtained loansfrom private Companies and participated in the chitsorganized by private Firms without prior sanction of theGovernment, and thus, violated Rule 8(1)(a) and 3 ofA.P.Civil Services (Conduct) Rules, 1964; (2) he failed tofurnish statements in Form Nos.1 to 6 (Proforma propertystatements) even after several reminders, and thuscontravened Rule 9 of A.P. Civil Services (Conduct)Rules, 1964; and (3) while working in various capacitiesduring the period from 09.06.1996 to 20.06.1998, heacquired movable and immovable assets in his name andin the names of his family members withoutintimating/taking prior permission from competentauthorities, contravening Rule 9(1) and (2) of A.P. CivilServices (Conduct) Rules, 1964.

4. When the aforesaid orders were issued by theGovernment in G.O.Ms.No.357 and G.O.Rt.No.587,Finance (Admn.I) Department, dated 15.03.2002, at firstinstance, respondent herein has filed application inO.A.No.4709 of 2002 questioning the same before theTribunal, mainly on the ground that there was no priorsanction from the Government as contemplated underA.P. Revised Pension Rules of 1980 and the procedureadopted by the petitioners herein is in contravention ofA.P. Civil Services (Classification, Control and Appeal)

Rules, 1991. When the said O.A. was pending, based onthe findings recorded by the inquiry officer, as a showcase notice was issued in Memo No.47675-A/170Admn.Vig./98, dated 11.03.2004, calling for explanationas to why the punishment of withholding 50% of pensionfor a period of 10 years should not be imposed under Rule9 of A.P. Revised Pension Rules, 1980, another O.A. isfiled in O.A.No.3004 of 2004. The Tribunal allowed boththe O.As. by common order dated 09.12.2004 andquashed G.O.Ms.No.357 and G.O.Rt.No.587, dated15.03.2002, mainly on the ground that there was no priorsanction from the Government for initiating disciplinaryproceedings against the respondent herein, ascontemplated under law and the procedure adopted bythe petitioners in appointing the inquiry officer and thepresenting officer is contrary to the procedurecontemplated under A.P. Civil Services (Classification,Control and Appeal) Rules, 1991. Assailing the orderpassed by the Tribunal in both the O.As., these writpetitions are filed.

5. In these writ petitions, it is contended by the learnedGovernment Pleader appearing for petitioners that theTribunal, without taking note of sanction orders issued bythe Government, has recorded a finding that there was nosanction from the Government. It is further submitted thaton account of passing orders by the Government by appointing the inquiry officer and the presenting officerbefore the expiry of ten days time for filing explanation bythe respondent-employee, no prejudice is caused to him. It is further submitted that in any event, if the inquiry isdefective and the same is not in accordance with theRules, the Tribunal ought to have remitted the matter tothe Government for fresh consideration, so as to continuethe proceedings from the stage where it went wrong.

6. On the other hand, it is submitted by the learnedcounsel appearing for the respondent/applicant that heretired from service as early as on 30.06.2000 on attainingthe age of superannuation. It is submitted that ascontemplated under Rule 9 (2)(b)(1) of the RevisedPension Rules, unless there is prior sanction by theGovernment, it is not open to initiate disciplinaryproceedings against the Government employees and asboth the orders in G.O.Ms.No.357 and G.O.Rt.No.587 areissued by the Government on the same day, itcannot be construed to be prior sanction by theGovernment. Reliance is placed on the Division Benchjudgment of this Court in the case of Government ofAndhra Pradesh & another Vs. M.Satyanarayana Rao & another[[1]]. It is further contended by the learnedcounsel that pursuant to the investigation made by theAnti-Corruption Bureau on the charge that therespondent-applicant is in possession of assets disproportionate to his known sources of income, therespondent/applicant was prosecuted in C.C.No13 of2001 on the file of Special Judge for SPE & ACB Cases,Nellore and he was acquitted of the said charge. It isfurther submitted that as the procedure adopted by thepetitioners is arbitrary and illegal and runs contrary to theprocedure prescribed under the A.P. Revised PensionRules, 1980 and also against the procedure ascontemplated under Rule 20 of A.P. Civil Services(Classification, Control and Appeal) Rules, 1991, there areno grounds to interfere with the impugned order passedby the Tribunal.

7. In this case, it is not in dispute that when therespondent/applicant was in service, investigation wastaken up by the Anti-Corruption Bureau on the allegationof possessing assets disproportionate to his knownsources of income, but no disciplinary proceedings wereinitiated while he was in service. On attaining the age ofsuperannuation, he retired from service on 30.06.2000. On the allegation of possessing disproportionate assets,after completing the investigation in Crime No.17/ACB-NLR/1998 of ACB, Nellore Range, the respondent wasprosecuted for the offence under Section 13(2) read with13(1)(e) of the Prevention of Corruption Act, 1988, inC.C.No.13 of 2001 and he was acquitted by the SpecialJudge for SPE & ACB Cases, Nellore, vide judgment dated 19.01.2009. In the said judgment, 31 witnesseswere examined as PWs.1 to 31 and 222 documents weremarked under Exs.P-1 to P-222 on behalf of prosecution,and on behalf of defence i.e. respondent/applicant, 12witnesses were examined as Dws.1 to 12 and 18documents were marked as Exs.D-1 to D-18. The SpecialCourt, while appreciating the oral and documentaryevidence at length, has recorded a finding that as theincome of the respondent/applicant is more than the totalamount of assets and expenditure, he was not inpossession of disproportionate assets and that theProsecution has failed to prove its case against therespondent/applicant, as such, he was acquitted from thecharge framed in the said case, and the said judgmenthas become final.

8. As the respondent/applicant had retired from servicebefore initiation of disciplinary proceedings on theallegation of misconduct, inquiry can be conducted onlyas per the A.P. Revised Pension Rules, 1980, which areframed under Article 309 of the Constitution of India. Therelevant Rule is Rule 9(2)(b), which reads as under :

“The departmental proceedings, if not institutedwhile the Government servant was in service,whether before his retirement or during his re-employment:while the Government servant was in service,whether before his retirement or during his re-employment:

(i) shall not be instituted save with thesanction of the Government.sanction of the Government.

(ii) shall not be in respect of any event which took place more than four yearsbefore such institution; and

(iii) shall be conducted by such authorityand in such place as the StateGovernment may direct and inaccordance with the procedureapplicable to departmental proceedingsin which an order of dismissal fromservice could be made in relation to theGovernment servant during his service.”and in such place as the StateGovernment may direct and inaccordance with the procedureapplicable to departmental proceedingsin which an order of dismissal fromservice could be made in relation to theGovernment servant during his service.”

A Division Bench of this Court in M. SatyanarayanaRao’s case (1 supra), for which, one of us (RSR, J) is aparty, has considered the very Rule and held that thesanction as required to be obtained, should be obtainedbefore instituting the disciplinary proceedings. Coming tothe case on hand, there are two orders issued by theGovernment, one in G.O.Ms.No.357, dated 15.03.2002,which refers to according sanction to initiate departmentalproceedings and in the same order, inquiry officer andpresenting officer are appointed. On the very same day,Government issued another order in G.O.Rt.No.587,framing three charges against the respondent/applicanton the alleged misconduct. From a perusal of theprovision under Rule 9(2)(b) of the A.P. Revised PensionRules, 1980, it is clear that even to initiate departmentalproceedings, sanction should be granted by theGovernment at first instance. Sanction is nothing but apermission from the Government. As already held by thisCourt, such a measure is provided in the Rules only as a safeguard for the retired employees to preventindiscriminate initiation of disciplinary proceedings evenafter their retirement from service on attaining the age ofsuperannuation. While granting sanction, it is obligatoryon the part of Government to consider whether thecharges levelled against the charged officer are graveenough to initiate disciplinary proceedings, etc. In thecontext of the language used in Rule 9(2)(b) of theRevised Pension Rules, and as held by this Court in theearlier judgment in M. Satyanarayana Rao’s case (1supra), we are also of the view that unless there is priorsanction before initiation of proceedings, it is not open forthe Government to accord sanction and initiatedisciplinary proceedings on the very same day. Thoughthe Tribunal appears to have proceeded on the groundthat there is no sanction, we are of the view that thoughsanction is accorded vide G.O.Ms.No.357, dated15.03.2002, the same is not in conformity with law, as inthe same proceedings, inquiry officer and presentingofficer were appointed, and on the same day, separateorders were issued by framing articles of charges videG.O.Rt.No.587, dated 15.03.2002.

9. There is a further illegality as noticed by the Tribunalwhile conducting the inquiry prescribed in A.P. CivilServices (Classification, Control and Appeal) Rules,1991. From a reading of provision under Rule 9(2)(b)(iii)

of A.P. Revised Pension Rules, 1980, it is clear that withregard to a retired Government servant, after obtainingsanction from the Government, inquiry shall be conductedin accordance with the procedure applicable todepartmental proceedings in which an order of dismissalfrom service could be made in relation to the Governmentservant during his service. Thus, the only method to beadopted by the petitioners shall be the procedurecontemplated under Rule 20 of the A.P. Civil Services(Classification, Control and Appeal) Rules, 1991. As perRule 9 of the said Rules, dismissal is a major penalty andif the same is considered with reference to Rule 9(2)(b)(iii)of the A.P. Revised Pension Rules, 1980, the procedureto be adopted in the present case is as contemplatedunder Rule 20 of the A.P.Civil Services (Classification,Control and Appeal) Rules, 1991. We refer to relevantparas under Rule 20 of the said Rules i.e. Rule 20 (4), (5)(a), (b), (c) and (d), which read as under :

“Rule 20 (4): The Disciplinary Authorityshall deliver or cause to be delivered to theGovernment Servant a copy of the articles ofcharge, the statement of the imputations ofmisconduct or misbehaviour and a list ofdocuments and witnesses by which each articleof charge is proposed to be sustained andcopies of the said documents and statements ofthe said witnesses and shall require theGovernment Servant to appear before theDisciplinary Authority on such day and at suchtime not exceeding ten working days and submit a written statement of his defence and to statewhether he desires to be heard in person.

(5) (a): On the date fixed for appearance, theGovernment Servant shall submit the writtenstatement of his defence. The DisciplinaryAuthority shall ask the government servantwhether he is guilty or has any defence to makeand if he pleads guilty to any of the articles ofcharges, the Disciplinary Authority shall recordthe plea, sign the record and obtain thesignature of the Government Servant thereon. The disciplinary authority shall record findings ofguilty in respect of those articles of charge towhich the Government servant pleads guilty. Where the Government servant admits all thearticles of charges, the disciplinary authorityshall record its findings on each article of chargeafter taking such evidence as it may think fit andshall and shall act in the manner laid down inRule 21.

(b) Where the Government Servant appearsbefore the Disciplinary Authority and pleads notguilty to the charges or refuses or omits toplead, the Disciplinary Authority shall record theplea and obtain signature of the GovernmentServant thereon and may decide to hold theinquiry itself or it it considers necessary to do soappoint an Inquiring Authority for holding theinquiry into the charges and also appoint aGovernment Servant or a retired GovernmentServant or a legal practitioner as PresentingOfficer to present the case in support of thearticles of charge and adjourn the case to a datenot exceeding five days.

(c) On the day so fixed, the disciplinary authorityshall serve copies of the orders appointing theinquiring authority and the Presenting Officer onthe Government servant and inform him that hemay take the assistance of any otherGovernment servant to present the case on hisbehalf, but he may not engage a retiredGovernment servant or a legal practitioner forthe purpose unless the Presenting Officerappointed by the disciplinary authority is onesuch, or, the disciplinary authority, having regardto the circumstances of the case, so permits.

Provided that no Government servant dealing inhis official capacity with the case of inquiryrelating to the person charged or any officer towhom an appeal may be preferred shall bepermitted by the inquiring authority to appear, onbehalf of the person charged before theinquiring authority.

Provided further that the Government servantmay take the assistance of any otherGovernment servant posted at any other station,if the inquiring authority having regard to thecircumstances of the case and for reasons to berecorded in writing, so permits.

Note (1) :- The Government Servant shall nottake the assistance of any other GovernmentServant who has pending two disciplinary caseson hand in which he has to give assistance.

Note (2) :- The Government servant may alsotake the assistance of a retired Governmentservant to present the case on his behalf,subject to such conditions as may be specified by the Government from time tot time by generalor special order in this behalf.

(d) The Disciplinary Authority shall inform theGovernment Servant to submit within five days alist of documents, which he requires to bediscovered or produced by Government for thepurpose of his defence indicating the relevanceof the documents so required.”

10. From a perusal of the aforesaid Rules, it is clear thatafter initiation of disciplinary proceedings against anemployee, the disciplinary authority shall deliver or causeto be delivered to the Government servant, a copy of thearticles of charge, the statement of imputations ofmisconduct or misbehaviour and shall require theGovernment Servant to appear before the DisciplinaryAuthority by granting time of 10 days to submit the writtenstatement of defence. Under Rule 20 (5)(a) of the Rules, ifthe Government servant pleads guilty to the charges,there is no need to conduct any inquiry and thedisciplinary authority shall record the plea and obtain thesignature of the Government Servant. Only in the event ofGovernment servant pleading not guilty to the charges,disciplinary authority shall record the plea and shalldecide to hold inquiry by itself or appoint the inquiringauthority for holding inquiry into the charges and alsoappoint a Government servant as presenting officer. Coming to the case on hand, after retirement of therespondent/applicant, orders in G.O.Ms.No.357 and G.O.Rt.No.587, dated 15.03.2002 are issued on the sameday and in G.O.Ms.No.357, while according sanction,straightaway, inquiry officer and presenting officer areappointed and on the same day, separate orders areissued in G.O.Rt.No.587, by framing articles of charges. The said procedure adopted by the petitioners runscontrary to the procedure contemplated under Rule 20 (4)and (5) of the A.P. Civil Services (Classification, Controland Appeal) Rules, 1991. In view of the mandatoryprocedure prescribed under law, we are not convinced toaccept the contention of learned Government Pleader thatno prejudice is caused to the respondent with adoption ofsuch procedure, which is in contravention of the Rules.

11. Although it is contended by the learned GovernmentPleader that even if the procedure adopted is defective,the matter can be remitted to the Government by allowingthe petitioners to conduct inquiry afresh, in accordancewith law. In support of his contention, the learnedGovernment Pleader has placed reliance on the judgmentof Hon’ble Supreme Court in the case of Anant R.

Kulkarni Vs. Y.P.Education Society & others[[2]]. Weare not convinced to accept the said submission of thelearned Government Pleader, for the reason that in thedepartmental proceedings, three articles of charges areframed against the respondent/applicant and there is nocharge with regard to acquisition of disproportionate

assets to his known sources of income, in contraventionof the A.P. Civil Services (Conduct) Rules, 1964. Withregard to the prosecution where the allegation is madethat he was in possession of assets disproportionate tohis known sources of income, he was already prosecutedin C.C.No.13 of 2001 on the file of Special Judge for SPE& ACB Cases, Nellore, and after elaborate analysis of oraland documentary evidence, he was acquitted of the saidcharge by judgment dated 19.01.2009, and it is stated thatthe said judgment has become final. In the disciplinaryproceedings, the first charge levelled against therespondent/applicant is that he has not taken permissionwhile obtaining loans from private Companies andparticipated in private chits. On the said charge, it was thecase of respondent/applicant that he secured such loansto help his unemployed major son and some portion ofloan amounts were utilized to meet the medical expensesof his aged ailing mother. The inquiry officer himself hasrecorded a finding on such charge that such conduct onthe part of the charged officer is in good faith and withoutwillful violation, but being a Government servant, he is duty-bound to observe the norms as per A.P. CivilServices (Conduct) Rules of 1964. With regard to the 2[nd]charge in the disciplinary proceedings that he failed to fileproforma statements of properties, he pleadedignorance. On 3[rd] charge that he acquired certainmovable and immovable properties without taking permission from the competent authority as per theprovisions under Rule 9(1) and (2) of the A.P. CivilServices (Conduct) Rules, 1964, the inquiry officer hasfound that most of the properties shown in the Annexureto Charge No.3 were in the name of his son, who is anincome-tax assessee and is no longer dependant on therespondent, as such, he cannot be called as familymember of respondent/applicant, and hence, the assetsacquired by the son does not amount to have acquired bythe respondent without obtaining permission. At the sametime, it is also held that the charged employee hasconstructed ground and first floor of his residence atHaranadhapuram, which is estimated at Rs.4,95,000/-,without obtaining due permission or intimation from theauthorities. At this stage, it is to be remembered that therespondent/applicant was already charged for possessingassets disproportionate to his known sources of incomeand the Special Court for SPE and ACB Cases, Nellore, inC.C.No.13 of 2001, has categorically held that therespondent/applicant is not in possession of assetsdisproportionate to his known sources of income. Takingthe said judgment into account, which has become final,having regard to the nature of charges framed and asalready observed by us that the procedure adopted by thepetitioners herein is in contravention of the A.P. RevisedPension Rules, 1980, and further, as therespondent/applicant has retired from service as early as

on 30.06.2000, we are not convinced to accept theargument of the learned Government Pleader to remit thematter for fresh inquiry at this stage. In the judgment inAnant R. Kulkarni’s case (2 supra), the Hon’ble SupremeCourt has held that if there is no substance in theallegations, it is not necessary to permit holding a freshinquiry to save the employee from harassment andhumiliation. In view of the acquittal recorded in thecriminal proceedings and having regard to the chargesframed in the departmental proceedings, which relate toprocedural irregularities in not obtaining permission fromthe competent authority as per A.P. Civil Services(Conduct) Rules of 1964, and as the respondent/applicantis retired from service as early as on 30.06.2000 and isnow aged more than 71 years, we are not inclined toaccept the submission made by the learned GovernmentPleader to remit the matter for fresh consideration at thisstage.

12. In view of the reasons stated above and in view ofthe reasons recorded by the Tribunal in the common orderdated 09.12.2004, we are of the view that there is no meritin these writ petitions so as to interfere with the order ofthe Tribunal in O.A.Nos.4709 of 2002 and 3004 of 2004. Both the writ petitions are accordingly dismissed. If thepension and other retiral benefits of respondent/applicantare not finalised, the same shall be finalised and paid tohim within a period of three months from the date of receipt of this order. No order as to costs.

Miscellaneous applications pending, if any, shall stand closed.

______________________

R. SUBHASH REDDY, J

__________________________

A.SHANKAR

NARAYANA, J

31[st] December 2013

ajr

[1]2013 (5) ALD 302 (DB)[2](2013) 6 SCC 515