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2023 DIGILAW 1417 (AP)

Govt. of Andhra Pradesh v. G. Appa Rao

2023-10-31

A.V.SESHA SAI, SUMATHI JAGADAM

body2023
ORDER : 1. Heard learned Government Pleader for Services-IV and Sri C. Srinivasa Baba, learned counsel for respondent No. 1-applicant. 2. This Writ Petition, instituted under Article 226 of the Constitution of India, calls in question the order, dated 29.07.2009, passed by the Andhra Pradesh Administrative Tribunal (hereinafter called ‘the Tribunal’) in O.A. No. 6192 of 2008. 3. By way of the aforesaid order, the Tribunal allowed the Original Application, filed by the respondent No. 1 herein under Section 19 of the Administrative Tribunals Act, 1985. Respondent No. 1 herein filed the said Original Application, assailing the order of the State Government issued vide G.O.Ms. No. 311, Municipal Administration & Urban Development (Vig.II-1) Department, dated 22.04.2008 and the Memo dated 14.07.2004. 4. Respondent No. 1 herein is a retired Manager and he retired from service in the month of June, 2001, while working in Kovvur Municipality, West Godavari District. The Commissioner and Director of Municipal Administration issued a charge Memo vide proceedings Roc. No. 9411/96-K2, dated 22.07.2000, framing the following Articles of Charges: “Charge No. 1: That he failed to remit back the advance of Rs.2.00 lakhs to municipal funds as soon as exemption orders from payment of customs duty which is received and misappropriated the amount. Charge No. 2: That he wilfully avoided to adjust the advance amount of Rs.2.10 lakhs by not presenting the detailed bills and vouchers even after the purpose for which the advance was taken by him was over in November, 1995 and misused the said amount. Charge No. 3: That he has produced vouchers for Rs.70,573/- without any “pay orders” of the Municipal Commissioner and misused the said amount. Charge No. 4: That he has spent an amount of Rs.34,065/- towards the expenditure incurred for refreshment and other miscellaneous charges, in connection with the opening ceremony organised by the Municipality on 13.11.95 without any council sanction or without authorisation by any competent authority to incur the particular expenditure and misused the said amount. Charge No. 5: That the individual has claimed an amount of Rs.3,381-14 towards Telephone charges from 25.10.95 to 2.11.95 at New Delhi not supported by any Telephone bills and misused the said amount. Charge No. 6: The individual has claimed Rs.628/- towards refreshment on 19.10.95, 20.10.95 and 21.10.95 at Madras not supported by any bills and misused the said amount. Charge No. 5: That the individual has claimed an amount of Rs.3,381-14 towards Telephone charges from 25.10.95 to 2.11.95 at New Delhi not supported by any Telephone bills and misused the said amount. Charge No. 6: The individual has claimed Rs.628/- towards refreshment on 19.10.95, 20.10.95 and 21.10.95 at Madras not supported by any bills and misused the said amount. Charge No. 7: That he has spent an amount of Rs.2,880-50 from the Election Advance towards T.A. and produced invalid and time barred bills without Council sanction and Counter Signature of the Municipal Commissioner. Charge No. 8: That he has produced Voucher for Rs.19.835-20 without incurring any expenditure towards printing charges of amendments to Voters list. Charge No. 9: That he has delayed for morethan one year to account for the Election Advance of Rs.2,98,718/-.” 5. In response to the said charge Memo and the charges contained therein, the applicant submitted his explanation on 24.08.2000. Thereafter, an Enquiry Officer was appointed and he conducted enquiry and submitted a report on 15.06.2001, holding the respondent No. 1 guilty of the charges. Enclosing a copy of the said Enquiry Officer’s report, a show-cause notice came to be issued on 24.04.2002 by the State Government vide Memo No. 18229/G1/2001-1, dated 24.04.2002, calling upon the applicant-respondent No. 1 to show cause as to why 25% cut in the pension should not be imposed, in addition to the recovery of an amount of Rs.91,381/-. The said show-cause notice was replied by the respondent No. 1 by way of an explanation, dated 20.07.2002. 6. Approximately, after a lapse of two years, the State Government issued Memo No. 16610/Vig.II/2002-2, dated 14.07.2004, asking the respondent No. 1-applicant to show cause as to why punishment of 100% cut should not be imposed, apart from recovery of Rs.91,381/-. In response to the said show-cause notice, an explanation was submitted by the respondent No. 1 on 19.11.2004. Thereafter, the Government issued memo, dated 10.04.2006, asking the petitioner to submit his written explanation, while furnishing the information sought by the applicant. It is not in dispute that respondent No. 1-applicant submitted an explanation in response to the same on 29.08.2007. 7. Eventually, the State Government issued G.O.Ms. No. 311, Municipal Administration & Urban Development (Vig.II-1) Department, dated 22.04.2008, inflicting punishment of 100% cut in pension and gratuity permanently besides recovery of Rs.91,381/- from the respondent No. 1-applicant. 8. It is not in dispute that respondent No. 1-applicant submitted an explanation in response to the same on 29.08.2007. 7. Eventually, the State Government issued G.O.Ms. No. 311, Municipal Administration & Urban Development (Vig.II-1) Department, dated 22.04.2008, inflicting punishment of 100% cut in pension and gratuity permanently besides recovery of Rs.91,381/- from the respondent No. 1-applicant. 8. In the above background, the applicant-respondent No. 1 approached the Tribunal by way of filing the present Original Application under Section 19 of the Administrative Tribunals Act, 1985. The Tribunal vide the impugned order, dated 29.07.2009, allowed O.A. No. 6192 of 2008, setting aside the order of punishment and remanded the matter to the Government for imposing punishment, basing on the show-cause notice, dated 24.04.2002, and also taking into consideration the explanation offered by the petitioner and to pass appropriate orders. 9. Assailing the validity and the legal sustainability of the aforesaid order, the present Writ Petition came to be instituted by the respondents in the Original Application. The Composite High Court of Andhra Pradesh, while ordering Rule-Nisi on 04.03.2010, in W.P.M.P. No. 6373 of 2010, granted interim suspension of the order passed by the Tribunal. 10. According to the learned Government Pleader, the order passed by the Tribunal is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 and the Andhra Pradesh Revised Pension Rules, 1980. In elaboration, it is further contended by the learned counsel that the Tribunal grossly erred in holding that the authorities have no power to issue the revised show-cause notice in the absence of any prohibition in the Rules. It is further contended by the learned counsel that, having regard to the gravity of the charges framed against the applicant-respondent No. 1, the Tribunal is not justified in allowing the Original Application. 11. To bolster his submissions and contentions, the learned Government Pleader places reliance on the judgment of the Hon’ble Apex Court in the case of P.N. Mishra vs. State of M.P. and Others, 2005 SCC Online MP 196. 12. On the contrary, the learned counsel for the respondent No. 1-applicant submits that there is absolutely no error nor there exists any infirmity in the order passed by the Tribunal, having regard to the facts and circumstances of the case. 12. On the contrary, the learned counsel for the respondent No. 1-applicant submits that there is absolutely no error nor there exists any infirmity in the order passed by the Tribunal, having regard to the facts and circumstances of the case. It is further submitted, in elaboration, that neither the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 nor the Andhra Pradesh Revised Pension Rules, 1980 authorise the authorities to issue a second show-cause notice on the basis of the Enquiry Report. 13. According to the learned counsel, the judgment of the Madhya Pradesh High Court, cited by the learned Government Pleader has no application to the facts and circumstances of the case and, in support of his submissions and contentions, learned counsel places reliance on the judgment of a Division Bench of Orissa High Court in the case of Brundaban Padhi vs. State of Orissa, AIR 1970 Orissa 81. 14. In the above background, now the issues that emerge for consideration of this Court in the present Writ Petition are: 1. Whether the order passed by the Tribunal, which is impugned in the present Writ petition, is sustainable and tenable? 2. Whether the impugned order warrants any interference of this Court under Article 226 of the Constitution of India? 15. There is absolutely no dispute as regards the reality that pursuant to the submission of the report of the Enquiry Officer on 15.06.2001, a show-cause notice came to be issued by the Government on 24.04.2002, proposing punishment of 25% cut in pension apart from recovery of Rs.91,381/-. It is also not in dispute that, in response to the said show-cause notice, an explanation was submitted by the respondent No. 1-applicant on 20.07.2002. Approximately, after two (02) years, a revised show-cause notice came to be issued by the State Government on 14.07.2004, proposing punishment of 100% cut in pension, apart from recovery of amount. It is also not in dispute that on 19.11.2004, respondent No. 1-applicant submitted his explanation and, thereafter, a memo came to be issued on 10.04.2006, asking the petitioner and respondent No. 1 to submit explanation and the respondent No. 1 also submitted explanation on 29.08.2007. 16. Eventually, the State Government issued G.O.Ms. It is also not in dispute that on 19.11.2004, respondent No. 1-applicant submitted his explanation and, thereafter, a memo came to be issued on 10.04.2006, asking the petitioner and respondent No. 1 to submit explanation and the respondent No. 1 also submitted explanation on 29.08.2007. 16. Eventually, the State Government issued G.O.Ms. No. 311, Municipal Administration & Urban Development (Vig.II-1) Department, dated 22.04.2008, inflicting on the petitioner a punishment of 100% cut in pension and gratuity permanently besides recovery of Rs.91,381/- on the respondent No. 1. 17. In this context, it would be apt and appropriate to refer to certain provisions of law under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. Rule 20 of the Rules deals with the procedure for imposing major penalties. In the instant case, admittedly, the disciplinary authority did set in motion Rule 20 of the Rules by issuing Charge Memo and appointing an Enquiry Officer to conduct enquiry. It is to be noted that the Enquiry Officer, so appointed, submitted report, holding the applicant guilty of the charges and, thereupon, enclosing a copy of the Enquiry Report, the Government issued a show-cause notice, calling upon the applicant to show-cause as to why the punishment of 25% cut in pension, apart from recovery of Rs.91,381/- should not be inflicted on the petitioner. The fact remains that in response to the said show-cause notice the applicant submitted explanation. But the Government issued a revised show-cause notice on 14.07.2004, asking the applicant to show-cause as to why punishment of 100% cut in pension, in addition to the recovery of an amount of Rs.91,381/- should not be imposed. Thereafter, the petitioner replied to the same and subsequently, vide memo, dated 10.04.2006, while referring to G.O.Ms. No. 2, General Administration Department, dated 04.01.1999, once again, the Government asked the applicant to submit written explanation and the applicant submitted his explanation on 29.08.2007. The Government, eventually, passed orders vide G.O.Ms. No. 311, Municipal Administration & Urban Development (Vig.II-1) Department, dated 22.04.2008, inflicting punishment of 100% cut in pension and gratuity permanently besides recovery of Rs.91,381/- on the applicant. In this context, it would be appropriate and apt to refer to Rule 21 of the Rules, which deals with the procedure with regard to the action on the Enquiry Report. Rule 21 of the Rules stipulates as follows: “Rule 21. In this context, it would be appropriate and apt to refer to Rule 21 of the Rules, which deals with the procedure with regard to the action on the Enquiry Report. Rule 21 of the Rules stipulates as follows: “Rule 21. Action on the inquiry report: (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be. (2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation of submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. (3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub-rules (4) and (5) below. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 9 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 22, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commissioner, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. (5) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 9 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.” 18. It is very much evident from a reading of the aforesaid provision of law that the said provision does neither authorise nor enable the authorities to issue a revised show-cause notice. It is pertinent to note that since these provisions are penal in nature, strict and scrupulous adherence to the same is mandatory and on the ground that there is no prohibition to issue a revised show-cause notice, the authorities cannot act in deviation to the mandatory provisions of law. The contention contra advanced by the learned Government Pleader is liable to be rejected and is accordingly, rejected. 19. Yet, another contention, advanced by the learned Government Pleader that since the applicant requested certain clarifications, after receipt of revised show-cause notice, he waived his right to question the revised show-cause notice, is neither sustainable nor tenable in the eye of law, as the same does not absolve the authorities of their statuary duty and obligation and in view of the well established principle of law that there cannot be waiver against law. 20. Another contention, advanced by the learned Government Pleader, that the applicant failed to assail the proceedings issued after revised show-cause notice, cannot stand for the twin tests of reasonableness and rationality, as all those proceedings ultimately got merged in the order of punishment, which, admittedly, had been assailed in the Original Application. 20. Another contention, advanced by the learned Government Pleader, that the applicant failed to assail the proceedings issued after revised show-cause notice, cannot stand for the twin tests of reasonableness and rationality, as all those proceedings ultimately got merged in the order of punishment, which, admittedly, had been assailed in the Original Application. Another significant aspect, which strikes at the root of the matter, is that though the applicant submitted explanations to the show-cause notice, the Government, in the impugned order of punishment, did neither consider the contents of the same nor did the Government assign any reasons for arriving at the conclusions. The said aspect is also fatal to the case on hand. 21. Coming to the judgment cited by the learned Government Pleader i.e. the judgment of Madhya Pradesh High Court, in the case of P.N. Mishra vs. State of M.P. and Others (cited supra), in the said case, though the Government proposed a 5% cut in pension, on reference, the Public Service Commission proposed 20% and such enhancement by Public Service Commission was the subject matter before the Madhya Pradesh High Court. In the case on hand, such contingency is conspicuously absent. In the absence of such contingency and having regard to the provisions of law, referred to supra, the said decision of Madhya Pradesh High Court would not render any assistance to the case of the petitioner. In fact, the Tribunal, while allowing the Original Application, placed reliance on the judgment of a Division Bench of Orissa High Court in the case of Brundaban Padhi vs. State of Orissa (cited supra) and the said judgment is squarely applicable to the case on hand. It is a settled and well established principle of law that invocation of the jurisdiction of this Court, under Article 226 of the Constitution of India, for issuance of a Writ in the nature of Writ of Certiorari is impermissible, unless the order impugned suffers from inherent lack of jurisdiction, patent perversity or found violative of the principles of natural justice and, in the considered opinion of this Court, such contingences are conspicuously absent in the order of the Tribunal. In fact, while allowing the Original Application, the Tribunal assigned valid and convincing reasons for arriving at the conclusions and this Court is not inclined to meddle with the well articulated order passed by the Tribunal. 22. In fact, while allowing the Original Application, the Tribunal assigned valid and convincing reasons for arriving at the conclusions and this Court is not inclined to meddle with the well articulated order passed by the Tribunal. 22. For the aforesaid reasons, the Writ Petition is dismissed and the order of the Tribunal is confirmed. However, having regard to the submissions of the learned Government Pleader, three (03) months time is granted to the petitioner to implement the order of the Tribunal. There shall be no order as to costs. 23. As a sequel thereto, miscellaneous petitions, pending if any, shall stand closed.