C KISHAN RAO Vs. SECRETARY TO GOVERNMENT PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT GOVT OF A P HYDERABAD

JUDGEMENT

(1.) A very interesting issue arises in this case. The petitioner was initially appointed as LDC on 3-12-1981 and later he was promoted to higher posts. However, the ACB had laid a trap on the petitioner on 24-10-1990 when he was working as Mandal Development Officer. Consequently he was placed under suspension on 21-11-1990. The said order of suspension was revoked on 19-6-1991. The ACB filed the chargesheet before the Trial Court on 2-11-1992. Consequently, on the filing of the chargesheet, he was once again placed under suspension on 15-2-1993, but, however, the said suspension was revoked by proceedings No. 21368/12/90, dated 6-1993 and he was again reinstated into service in June, 1993. The Criminal Court convicted the petitioner and sentenced him to suffer two years of rigorous imprisonment, by its Judgment dated 11-9-1995, and against the said judgment the petitioner filed an appeal before this Court. But, in the meanwhile, he was retired from service on 31-7-1996. It is also on record that reducing the sentence from two years to one year rigorous, this Court dismissed the appeal filed by the petitioner, on 27-7-2001. However, after retirement, a show-cause notice was issued to the petitioner on 18-5-2000 to the petitioner purported to be under Rule 9(2) of A.P. Revised Pension Rules (for short Rules) proposing to cut 100% pension and also to withhold the gratuity payable to the petitioner consequent on his retirement. In this regard, it is to be noted that after the petitioner retired from service, his entire pension and gratuity was released. Since the petitioner has not filed any explanation to the show-cause notice issued to him, final orders were passed on 4-5-2002 imposing a punishment of 100% cut in the pension permanently and also withholding the gratuity. Against the said order, the petitioner filed O.A. No.10267 of 2002 before the A.P. Administrative Tribunal (for short Tribunal). The learned Tribunal dismissed the said O.A. by an order dated 7-3-2003. Against the dismissal of the above O.A., the present writ petition came to be filed.

(2.) The learned Counsel for the petitioner submits that the very show-cause notice issued by the Government is in contravention of Rule 9 of the Rules and consequently the final order is wholly illegal and without jurisdiction. He submits that when once the petitioner retired from service, though it is open for the Department to initiate Departmental Proceedings but the same is subject to the limitation prescribed under Rule 9(2)(b) of the Rules. Admittedly in the instant case the petitioner was convicted by the Trial Court on 11-9-1995 and the show-cause notice was issued on 18-5-2000, which is clearly beyond the limitation period prescribed under Rule 9(2)(b) of the Rules. Therefore, the order of the Tribunal is wholly unsustainable and liable to be set aside. The Tribunal has not taken into consideration this relevant provision of law, but taking into consideration the extraneous matters viz., the matters which are not relevant, determined the issue. Therefore he seeks appropriate relief. The learned Government Pleader for Services-II submits that the Government in oase of departmental as well as disciplinary proceedings can invoke Rule 8 of the Rules. When once the petitioner is subjected to disciplinary proceedings and was found guilty, question of limitation does not arise and therefore the Government passed an order under Rule 9(2)(b) of the Rules, which is quite legal and valid. He further submits that since the delay had taken place in obtaining the sanction from the A.P. Public Service Commission that should not be a ground to the advantage of the petitioner. Therefore the order passed by the Tribunal is quite legal and the same cannot be interfered with.

(3.) The facts are not much in dispute as stated above. For proper appreciation of the facts, it is necessary to refer to Rule 9, which reads thus : "Right of Government to withhold or withdraw pension : (1) The State Government reserves themselves the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that the Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed; Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service : Provided that where the departmental proceedings are instituted by an authority subordinate to the State Government, that authority shall submit a report recording its findings to the State Government. (a) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the State Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) xxxxx (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 52 shall be sanctioned. (5) Where the State Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (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; and (b) Judicial proceedings shall be deemed to be instituted (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrates takes cognizance, is made; and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. (7) (a) when a Government servant dies before conclusion of the disciplinary proceedings, generally death abates all further proceedings. As such, when Government servant dies before conclusion of the disciplinary proceedings, the proceedings under Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 also abates. If any loss caused or misappropriated the Government amount by the deceased Government servant is established, in such cases, the disciplinary proceedings will not automatically abate and it is open to the Government to bring the legal representatives on record and conclude disciplinary proceedings for the purpose of recovery of the same. (b) When disciplinary proceedings are concluded as per the procedure and Government servant/pensioner dies before receiving punishment order and any loss caused or misappropriated the Government amount due to his negligence or misconduct while he was in service, is established, the same can be recovered from terminal benefits admissible to the legal heirs. The recovery in such cases shall be from the terminal benefits i.e., Retirement Gratuity, Commuted Value of Pension, Encashment of leave. (c) In cases of Punishment of stoppage of increment without cumulative effect, which could not be implemented due to lack of service, or otherwise, the amount equal to the increments stopped, shall be recovered from the Retirement Gratuity of the employee: Provided that the consultation with the Andhra Pradesh Public Service Commission shall not be necessary for taking action under this sub-rule". From a reading of the above, under Rule 9(1) of the Rules it is open for the Government to withdraw or withhold the pension or gratuity, or both, either in full or in part, whether permanently or for a specified period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. If, however, action is sought to be initiated by the Department after retirement, limitation prescribed under Rule 9(2)(b) has to be followed, which says, that the departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall not be in respect of any event which took place more than four years before such institution.