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2002 DIGILAW 1490 (AP)

M. D. Safia Begum v. Collector, Nellore District

2002-12-20

BILAL NAZKI, D.S.R.VERMA

body2002
BILAL NAZKI, J. ( 1 ) THIS writ petition has been filed challenging the orders passed by the andhra Pradesh Administrative Tribunal in o. A. No. 75833 of 1990 and Review M. A. No. 4562 of 1993 and also the orders dated 26-10-1984 and 29-12-1987 passed by the respondents 1 and 3 respectively. ( 2 ) THE petitioner was working as Matron in the Social Welfare Department. On 31-1-1984 Huzur Head Clerk (D), collectorate, Nellore, on the basis of his inspection, instructed the Government S. C. Girls Hostel, Indukurpet to frame certain charges against the petitioner. Five chgarges were framed against her and they were, (1) That she had not taken bona fide residence at Indurkurpet and she was daily operating from Nellore daily; (2) That the petitioner had marked attendance for 126 boarders, whereas 120 boarders were present at the time of inspection and she had drawn ration for the absentee students, thus misused the government funds: (3) That the petitioner failed to maintain register for the purchases of vegetables, eggs etc. ; (4) That the petitioner had not maintained cash account from 17-11-1983 onwards; (5) That on physical verification of the provisions, there was a deficit of 99 Kgs of rice, 3 Kgs of tamarind and 11/2kgs. of Chillies; ( 3 ) A show cause notice was issued to the petitioner. After she offered an explanation, district Collector passed an order awarding punishment of stoppage of two increments with cumulative effect. Thereafter, she filed an appeal before the Director of Social welfare, Hyderabad on 16-5-1985. As this appeal was not decided, according to the petitioner, she filed another appeal before the Government which was disposed of on 31-1-1990 and the order was communicated to the petitioner on 2-3-1990. The government rejected the appeal. Then she went to the Tribunal. The Tribunal acted like an appellate authority and examined the charges and the explanation given by the petitioner and came to the conclusion that the charges were proved. It is contended by the learned counsel for the petitioner that the Tribunal had not to sit as an appellate authority over the orders passed by the authorities, but had to go into the question of the legality of the order of punishment which was not done by the Tribunal. ( 4 ) COUNTER was not filed by the respondents either before this Court or before the Tribunal. ( 4 ) COUNTER was not filed by the respondents either before this Court or before the Tribunal. The learned counsel for the petitioner has drawn our attention to certain G. Os. , one of them being g. O. Ms. No. 536, General Administration (Service-C) Department dt. 8-12-1997, which lays down, "in the order first read above, it is ordered that for imposing the penalty of stoppage of increment with cumulative effect, the procedure laid down in rule 20 of the Andhra Pradesh civil Services (Classification, Control and Appeal) Rules, 1991 shall be followed. It was also ordered therein that the penalty of stoppage of increment with cumulative effect shall be treated as a major penalty. 2. In Rule 17 of the Andhra Pradesh public. Service Commission regulations, 1963, it is mentioned that consultation with the Andhra Pradesh public Service Commission shall be necessary where the State Government propose to pass an original order imposing any of the following penalties: (I) Reduction to a lower rank in the seniority list or to a lower post or time-scale whether in the same service or in another service, State or Subordinate or to a lower stage in a time scale; (II) Recovery from pay of the whole or part of any pecuniary loss caused to the Government or to a local body by negligence or breach of orders; (III) Compulsory retirement otherwise than under Article 465 (2) or under note 1 to Article 465-A of the Civil service Regulations; (iv) Removal from service or (v) Dismissal. 3. Since the stoppage of increments with cumulative effect is treated as a major penalty, it is necessary to consult the Andhra Pradesh Public Service commission before imposing the said penalty 4. Accordingly, it is ordered that where it is proposed to impose the penalty of stoppage of increments with cumulative effect, it is necessary to consult the Andhra Pradesh Public service Commission as per rule 17 of the Andhra Pradesh Public Service commission Regulations, 1963; 5. . . . . . . . . . . . . . . 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. . . . . . . . . . . . . . . ( 5 ) ACCORDING to this G. O. , stoppage of increment with cumulative effect has been treated as a major penalty and it has been laid down by this G. O. that in case of awarding of stoppage of increment with cumulative effect, consultation with the andhra Pradesh Public Service Commission is mandatory. It is contended by the learned counsel for the petitioner that since the petitioner has been given a major penalty and in terms of this G. O. major penalty could have not been imposed without consultation of Andhra Pradesh Public service Commission and the impugned order does not disclose that any such consultation was made, therefore the order of punishment on this ground alone should have been quashed. It is also contended by the learned counsel that since stoppage of increment with cumulative effect is a major penalty, therefore the penalty could not be imposed only after receiving an explanation from the delinquent officer, a full-fledged enquiry as envisaged under the Andhra pradesh Civil Services (Classification, control and Appeal) Rules (for short "cca rules") was necessary. According to him, the cases in which such punishment is given will have to be treated under Rule 19 (2) of the CCA Rules and not under Rule 19 (1 ). Rules 19 (1) of the CCA Rules lays down,"19. (1) No order imposing on a member of a service a penalty specified in items (i), (ii), (iii), (v) or (ix) of Rule 8, or Rule 9 shall be passed except after- (a) the member of the service is informed in writing by the authority competent to impose penalty of the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken, and is given an opportunity to make any representations he may wish to make to such authority; and (b) such representation if any, is taken into consideration by the authority competent to impose the penalty. ( 6 ) WITHHOLDING of increments or promotion is mentioned in Rule 8 (iii) of the cca Rules. It does not mention withholdiang of increments with cumulative effect, but, on the other hand, the g. O. Ms. No 536, General Administration (Service-C) Department, dt. ( 6 ) WITHHOLDING of increments or promotion is mentioned in Rule 8 (iii) of the cca Rules. It does not mention withholdiang of increments with cumulative effect, but, on the other hand, the g. O. Ms. No 536, General Administration (Service-C) Department, dt. 8-12-1997 states that withholding of increments with cumulative effect would be a major penalty. Since withholding of increments with cumulative effect is a major penalty, therefore it is correct to say that in order to give such punishment, the charges levelled must be enquired into in terms of the rule 19 (2) of the CCA Rules. In this connection the learned counsel relies on a judgment of the Supreme Court reported in kulwant Singh Gill v. State of Punjab. Although in the penalties mentioned in rule 8 of the CCA Rules withholding of increments with cumulative effect is not mentioned as a major penalty, but in g. O. Ms. No. 536, General Administration (Service-C) Department, dt. 8-12-1997 it has been laid down that stoppage of increments with cumulative effect would be a major penalty. Therefore before handing down such a punishment, the procedure contemplated by the CCA Rules for awarding a major punishment will have to be followed. The Supreme Court also considered similar rules where withholding of increments was mentioned as a minor penalty and withholding of increments with cumulative effect was not mentioned either as a minor penalty or a major penalty. But the Supreme Court held that it is an independant head of penalty and it could be imposed as punishment in an appropriate case, it is one of the major penalties. In the present case withholding of increments with cumulative effect has already been classified as a major penalty through G. O. Ms. No. 536, general Administration (Service-C) department, dt. 8-12-1997. Therefore, punishment of a major penalty like withholding of increments with cumulative effect could only be imposed after holding an enquiry in terms of Rule 19 (2) of the CCA rules. ( 7 ) FOR these reasons, we set aside the order of the Tribunal and quash the order of stoppage of increments with cumulative effect passed by the respondents and consquent order passed by the Government in the appeal filed by the petitioner. The writ petition is accordingly allowed. No costs.