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Andhra High Court · body

2012 DIGILAW 507 (AP)

Government of Andhra Pradesh, Represented by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad v. V. Venkata Ramanaiah

2012-06-11

G.KRISHNA MOHAN REDDY, V.V.S.RAO

body2012
Judgment :- V.V.S.Rao, J. The Government of Andhra Pradesh, its Director General of Police (Admn.), the Inspector General of Police, Guntur Range, the Superintendent of Police, SPSR Nellore and the Sub-Divisional Police Officer, Gudur, SPSR Nellore, are aggrieved by the order dated 30.03.2011 in O.A.No.265 of 2010 passed by the Andhra Pradesh Administrative Tribunal (APAT). By impugned order, the Tribunal while confirming the finding of guilt of charge, modified the punishment to that of reversion of the first respondent (hereafter, the applicant) from the post of Head Constable to Police Constable. The admitted facts in brief are as follows. The applicant while working as Head Constable was alleged to have committed theft of suitcase at RTC Bus Stand and also alleged to have forged the signature of HC 655 Sri V.Chinnaiah. The enquiry was ordered under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (the Rules). The Sub-Divisional Police Officer conducted enquiry and submitted report finding the charges as proved. After following necessary procedure, by an order dated 14.02.1998 the applicant was dismissed from service. The applicant preferred a departmental appeal to the Inspector General of Police. By proceedings dated 19.08.1999, the appellate authority passed an order of reversion of the applicant from the post of Head Constable to the post of Police Constable permanently duly directing to treat the period of suspension as not on duty. The applicant’s appeal before the Inspector General of Police, Guntur, failed. The applicant then preferred a review to the Government, who by memo dated 08.09.2009, rejected the same. Aggrieved by the same, the applicant filed O.A.No.265 of 2010 to set aside the order of reversion permanently. To make the long story short, by impugned order, the learned Tribunal confirmed the finding of guilt recorded by the disciplinary authority as confirmed by the appellate authority. However, observing that the appellate authority is not authorised to impose the punishment of permanent reversion to the post of Police Constable, the punishment was modified as reverting the applicant to the post of Police Constable. The Government Pleader would submit that Rule 9(vii)(b) of the Rules enables the reduction to lower post or service. Therefore, in the absence of any specific bar, the reduction/reversion to the lower post can be permanent and the said Rule cannot be interpreted otherwise. The Government Pleader would submit that Rule 9(vii)(b) of the Rules enables the reduction to lower post or service. Therefore, in the absence of any specific bar, the reduction/reversion to the lower post can be permanent and the said Rule cannot be interpreted otherwise. Secondly, he would submit that the Tribunal committed an error in interfering with the punishment having recorded the finding that the applicant is guilty of the charge. The Counsel for the applicant would submit that Rule 9 of the Rules does not contemplate permanent reversion to the lower post permanently, and therefore, the Tribunal was justified in interfering with the punishment. It is axiomatic that generally the Court or Tribunal in exercise of judicial review power is precluded from interfering with the punishment imposed by the disciplinary authority. Merely because the punishment is disproportionate, interference is not called for unless it is shown that the punishment is strikingly disproportionate that shocks the conscience of the Court to warrant interference under Article 226 of the Constitution of India (Union of India v R.K.Sharma (2001) 9 SCC 592 ). The same view was reiterated recently in State of Uttar Pradesh v J.P.Saraswat (2011) 4 SCC 545 and Commandant, 22nd Battalion, Central Reserve Police Force v Surinder Kumar (2011) 10 SCC 244 . When once the High Court or Tribunal comes to the conclusion that the finding of guilt is unassailable, only option is to approve the decision of disciplinary authority. Therefore, we are not able to persuade ourselves to agree with the view of the learned Tribunal. The submission of the Counsel for the applicant that Rule 9(vii)(b) does not authorise the disciplinary authority to impose the punishment of reversion to the lower rank permanently, is not well founded. Rule 9 of the Rules to the extent relevant reads as under. Rule 9. Penalties:-The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely- Minor Penalties: (i) censure; (ii) withholding of promotion; [(iii) Omitted by G.O.Ms.No.335, G.A.D., Dt.4-8-2005] [(iv) withholding of increments of pay without cumulative effect]: [Subs. Rule 9 of the Rules to the extent relevant reads as under. Rule 9. Penalties:-The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely- Minor Penalties: (i) censure; (ii) withholding of promotion; [(iii) Omitted by G.O.Ms.No.335, G.A.D., Dt.4-8-2005] [(iv) withholding of increments of pay without cumulative effect]: [Subs. By G.O.Ms.No.205, G.A.D., 5-6-1998] (v) (a) suspension, where a person has already been suspended under Rule 8 to the extent considered necessary; [(b) reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.] (Clause (v) renumbered as (v)(a) and clause (b) added by G.O.Ms.No.373, G.A.D., Dt.6-12-2003] Major Penalties: (vi) withholding of increments of pay with cumulative effect]. [Ins. by G.O.Ms.No.205, G.A.D., 5-6-1998 and earlier clauses (vi) to (ix) renumbered as (vii) to (x)] (vii) (a) save as provided for in clause (v) (a), 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 ear 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; (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.] [Subs. by G.O.Ms.No.373, G.A.D., 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: [Provided that in all proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery and outraging the modesty of women, the penalty of dismissal from service shall be imposed]. [Subs. by G.O.Ms.No.458, G.A.D., Dt.22-09-2009]. [Subs. by G.O.Ms.No.458, G.A.D., Dt.22-09-2009]. (emphasis supplied) A plain reading of the relevant provisos of Rule 9 of the Rules would show that when the punishment of reduction to a lower stage in the time scale is imposed, the disciplinary authority is required to specifically mention the period not exceeding three years during which the delinquent Officer shall be denied the pay scale increments with or without cumulative effect. Thus, when the rule making authority wanted to limit the period of punishment, it was specifically said so. In contrast, Rule 9(vii)(b) of the Rules does not specify any period during which the delinquent Officer can be reduced to lower post. Therefore, if Rule 9(vii)(b) of the Rules is read as barring reduction/reversion to a lower post permanently, it would amount to rewriting the Rule which the Courts ought to avoid. The submission of the Counsel for the applicant that Rule 9(vii)(b) of the Rules having been substituted by G.O.Ms.No.373, dated 06.12.2003, cannot be enforced against the applicant, is misconceived. Rule 9(vii)(b) as it existed prior to 06.12.2003 is couched in different language, but to the same effect. It reads as follows. 9(vii). Reduction to a lower rank in the seniority list or to a lower stage in the time-scale of pay or to a lower time-scale of pay not being lower than that to which he was directly recruited or to a lower grade or post not being lower than that to which he was directly recruited, whether in the same Service or in another Service, State or Subordinate; Even the said Rule does not bar imposing the punishment of reversion permanently. In that view of the matter, we are inclined to agree with the Government Pleader for Services-I that the impugned order suffers from error apparent on the face of the record. The Writ Petition has to be allowed. Accordingly, the Writ Petition is allowed, and the impugned order of the Tribunal is set aside. The miscellaneous petitions, if any, shall also stand disposed of.There shall be no order as to costs.