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2021 DIGILAW 605 (AP)

State of Andhra Pradesh v. N. Mohan Kumar

2021-09-16

ARUP KUMAR GOSWAMI, NINALA JAYASURYA

body2021
JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Mr. Y.N. Vivekananda, learned Government Pleader attached to the office of the learned Additional Advocate General-II, appearing for the appellants and Mr. Motupalli Vijaya Kumar, learned counsel, along with Mr. Ramalingeswara Rao Kocharla Kota, learned counsel, appearing for respondent No. 1 in all the appeals. 2. Though the appeals arise out of separate orders passed by the learned single Judge in individual writ petitions, the substratum of the orders is one and the same. In the writ petitions, Charge Memos issued against the respective writ petitioners by the Tribunal for Disciplinary Proceedings (for short ‘the Tribunal’) Hyderabad, after their retirement from service, were assailed. By the orders assailed, the learned single Judge had quashed the impugned Charge Memos and held that the writ petitioners would be entitled to all consequential pensionary and retirement benefits. 3. Since the issue involved in all these writ appeals is same, the appeals are heard together and are being disposed of by this common judgment. 4. W.A. No. 453 of 2021 arises out of a judgment and order dated 05.11.2019 in W.P. No. 16232 of 2019, W.A. No. 457 of 2021 arises out of a judgment and order dated 05.11.2019 in W.P. No. 16234 of 2019, W.A. No. 466 of 2021 arises out of a judgment and order dated 29.05.2020 in W.P. No. 3637 of 2020 and W.A. No. 473 of 2021 arises out of a judgment and order dated 24.01.2020 in W.P. No. 19385 of 2019. 5. Basic facts of each of the writ petitions, to the extent relevant for the purpose of disposal of the present appeals, are noted as under: (i) The writ petitioner in W.P. No. 16232 of 2019 had retired from service as Excise Inspector on 28.02.2017. After his retirement, a Charge Memo dated 08.07.2019, which was assailed in the writ petition, was issued by the Tribunal in Tribunal Enquiry Case No. 726 of 2013, alleging that he had colluded with a benami group of K. Krishna Murthy at Kuppam and allowed irregularities that were committed in respect of 10 wine shops in violation of the provisions of Andhra Pradesh Excise Act, 1968 (for short ‘the Excise Act’) and Andhra Pradesh Excise Rules, 2005 (for short ‘the Excise Rules’) and thereby, abused his official position. The said allegations relate to the events that took place between the years 2010 and 2012. The said allegations relate to the events that took place between the years 2010 and 2012. (ii) The writ petitioner in W.P. No. 16234 of 2019 had retired from service as Excise Inspector on 31.07.2017. He was also issued a Charge Memo dated 22.03.2019 by the Tribunal in Tribunal Enquiry Case No. 560 of 2013 in respect of certain irregularities alleged to have been committed by him during the year 2011. The allegations levelled in the Charge Memo are to the effect that he had dishonestly allowed benami operations in respect of certain wine shops in Kodur and Chitvel liquor groups in violation of the Excise Rules. (iii) The writ petitioner in W.P. No. 3637 of 2020 had retired from service as Joint Commissioner of Prohibition and Excise on 28.02.2017. The Tribunal issued Charge Memo dated 07.02.2018 in Tribunal Enquiry Case No. 203 of 2013, alleging that he, actuated by corrupt motive and in connivance with a leader of SVR liquor syndicate, had received bribes (mamools) and did not take action to control violations in respect of the affairs of wine shops and, thereby, abused his official position. The said allegations relate to the events occurred between the years 2010 and 2012. (iv) The writ petitioner in W.P. No. 19385 of 2019 had retired from service as Prohibition & Excise Inspector on 31.07.2018. He had assailed the Charge Memo dated 30.11.2018 issued by the Tribunal in Tribunal Enquiry Case No. 554 of 2013, alleging that he used to collect mamools from wine syndicates and had allowed the licence holders to sell the liquor above MRP rates and to run wine shops beyond the prescribed timings and had also allowed sale of loose liquor for consumption without licence/permission. The allegations levelled in the said Charge Memo pertain to the events occurred during the year 2011. 6. Mr. Y.N. Vivekananda, learned Government Pleader appearing for the appellants, submits that the learned single Judge erred in quashing the Charge Memos, instead of allowing the disciplinary proceedings initiated against the writ petitioners to be taken to their logical end, having regard to the nature of irregularities alleged to have been committed by them. He, therefore, submits that the appeals may be allowed, setting aside the orders impugned. 7. On the other hand, Mr. Motupalli Vijaya Kumar and Mr. He, therefore, submits that the appeals may be allowed, setting aside the orders impugned. 7. On the other hand, Mr. Motupalli Vijaya Kumar and Mr. Ramalingeswara Rao Kocharla Kota, learned counsel appearing for the writ petitioners, submit that Rule 9(2)(b)(ii) of the Andhra Pradesh Revised Pension Rules, 1980 (for short ‘the Rules of 1980’) prohibits institution of departmental proceedings against a Government servant after his retirement from service in respect of the events which took place more than four years before such institution and therefore, the learned single Judge had rightly quashed the Charge Memos issued against the writ petitioners in relation to the events that took place more than four years before institution of departmental proceedings and no interference is warranted in these appeals. 8. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. In the context of initiation of departmental proceedings against a retired Government servant, Rule 9(2)(b)(ii) of the Rules of 1980 has relevance and, therefore, it will be appropriate to extract the same. The same reads as under: “9. Right of Government to withhold or withdraw pension: (1) xxx xxx xxx (2)......(a) xxx xxx xxx (b) The Departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment: (i) xxx xxx xxx (ii) shall not be in respect of any event which took place more than four years before such institution.” 10. Perusal of the aforesaid Rule would go to show that if the departmental proceedings are not instituted while the Government servant was in service, whether before his retirement or during his re-employment, the same shall not be instituted in respect of any event which took place more than four years before such institution. 11. It is also relevant to refer to Rule 9(6)(a) of the Rules of 1980, which reads as under: “(6) For the purpose of this rule: (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges 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.” 12. In terms of the aforesaid Rule, institution of departmental proceedings would take place on the date on which statement of charges was issued to the Government servant or pensioner. 13. In terms of the aforesaid Rule, institution of departmental proceedings would take place on the date on which statement of charges was issued to the Government servant or pensioner. 13. Thus, in the instant cases, with the issuance of Charge Memos by the Tribunal, institution of departmental proceedings against the writ petitioners took place and, admittedly, the events referred to in the said Charge Memos had taken place more than four years before the institution. 14. Perusal of the orders of the learned single Judge goes to show that it was observed that the issue is squarely covered by the order of this Court dated 22.08.2019 in W.P. No. 11886 of 2019, which was passed following the judgment dated 15.11.2018 of the Division Bench of the composite High Court of Judicature at Hyderabad in W.P. No. 25587 of 2018 and batch, wherein reliance was placed on the decision of the Hon'ble Supreme Court in State of U.P. vs. Shri Krishna Pandey, (1996) 9 SCC 395 . In the said case, the Hon'ble Supreme Court, while dealing with initiation of departmental enquiry against a Government servant after his retirement from service, held as under: “6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service. Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351-A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon.” 15. As the institution of departmental proceedings against the writ petitioners by issuance of Charge Memos was in respect of events that took place more than four years before such institution, the same is not permissible in view of Rule 9(2)(b)(ii) of the Rules of 1980. Accordingly, we find no error in the orders of the learned single Judge, quashing the Charge Memos. 16. Resultantly, the writ appeals are dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed.