Mohd. Tahseen vs Govt. of A.P. and others

Vaman Rao, J.—This writ petition is directed against the orders dated 4-5-1998 passed by the Andhra Pradesh Administrative Tribunal in OA No.5144 of 1997.

The petitioner filed the said OA before the Tribunal complaining against the release of only 75% of pension to him on his retirement on superannuation. By subsequent amendment in the OA, a prayer was included to set aside the orders of the Government in Memo No.1000/SC-Al/ 96-1, dated 2-8-1997 as being illegal and without jurisdiction, whereunder a departmental enquiry was initiated against the petitioner on certain alleged misconduct.

The case of the petitioner is that he worked as an Additional Superintendent of Police, Hyderabad in the Office of the Commissioner of Police, Hyderabad, and retired on 31-10-1996 on attaining the age of superannuation. As per the procedure prevailing, the petitioner''s pension papers were forwarded to the Accountant General. The third respondent-the Commissioner of Police, Hyderabad permitted the petitioner to retire with effect from 31-10-1996 vide his proceedings dated 18-10-1996. The second respondent-the Director General and Inspector General of Police, Andhra Pradesh through his letter No.L 1/499/96, dated 1-2-1997 released pension to the petitioner to the extent of 75% only withholding the balance of pension, and pensionary benefits like gratuity, commutation of pension and encashment of earned leave on the ground that disciplinary enquiry was pending against him. The case of the petitioner is that no enquiry was contemplated or pending as on the date of retirement and, as such sanctioning of 75% pension only and withholding of other pensionary benefits is violative of relevant rules.

On behalf of the respondents, Counter affidavit has been filed by the Deputy Commissioner of Police (Administration) denying the allegations made in the writ petition. It is stated that the petitioner submitted his pension papers on 23-7-1996 which were later forwarded to the Accountant General. The Accountant General sent for verification report excluding commutation payment order vide letter dated 26/28-11-1996. After receipt of the same, the second respondent addressed a letter dated 1-2-1997 to the Government for sanctioning of provisional pension according to the Rules of the Andhra Pradesh Revised Pension Rules, 1980 (for short ''Pension Rules'') for sanction of 75% of provisional pension to the petitioner withholding 25% as disciplinary proceedings were pending against him. Accordingly provisional pension of Rs.2822/- per month out of maximum amount of Rs.37627- was sanctioned under G.O. Rt. No.749, Home (PoI.E) Department, dated 27-3-1997. The Accountant General duly released the said provisional pension. It is stated that G.O. Ms. No.4674, dated 29-9-1995 permitting the petitioner to retire was issued much earlier to the date of retirement in routine manner. It is stated that after receipt of complaint against him, a preliminary enquiry was conducted and report was sent to the second respondent through letter dated 6-11-1995. The second respondent initiated disciplinary action for major penalty. It is thus stated that an enquiry was contemplated even before retirement of the petitioner. The orders permitting the petitioner to retire were issued by the first respondent without being aware of pendency of the enquiry against the petitioner in routine manner. It is however stated that at any rate the Government is empowered to conduct enquiry against the retired Government servants also under Rule 9(2) of the Pension Rules. It is stated that the petitioner being aware of the Government Memo dated 2-8-1997, filed the said OA on 14-8-1997 without mentioning the Government Memo and subsequently filed Miscellaneous Application in the OA for its amendment. It is stated that after preliminary enquiry, Articles of charges were served on the petitioner as contemplated under Rule(2) of the said Pension Rules. In fact proceedings for instituting enquiry and serving charge memo were issued by the Government itself. Thus Memo No. 10007 SC-A1796-1, dated 2-8-1997 was served on the petitioner enclosing the Statement of Articles of charges and statement of imputations. It is denied that the period of alleged misconduct on the part of the petitioner, pertains to more than four years, prior to the date of issuing of charge memo. Thus it is stated that the action taken against the petitioner was according to law and the order passed by the learned Tribunal do not suffer from any error.

A reading of Rule 9(1) of the said Pension Rules would show that the Government has power to withhold pension in full or part or such other pensionary benefits, if in any departmental enquiry or judicial proceedings, the petitioner is found guilty of grave misconduct or negligence during the period of his service. Rule 9(2)(a) contemplates that the departmental proceedings initiated while the Government servant was in service 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.

In this case, the learned Tribunal, with reference to the records produced by the Government Pleader and after its perusal, rightly held that the respondents had not initiated the disciplinary proceedings before the petitioner retired from his service. Rule 9(6) of the said Pension Rules is extracted below which is relevant for this purpose :

"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 Magistrate takes cognizance is made, and

(ii) in the case of Civil proceedings, on the date the plaint is presented in the Court."

This rule contemplates that the departmental proceedings shall be deemed to have been instituted only on the date the statement of charges was served on the employee. In this case, notwithstanding the fact that preliminary enquiry was conducted and it was contemplated to set up the disciplinary proceedings against the petitioner before his date of retirement, the statement of charges itself was served on the petitioner on 2-8-1997, that is, after the petitioner retired on 31-10-1996. The Tribunal rightly held that the petitioner''s case is not covered by Rule 9(1) and (2) of the said pension Rules. But the Government claimed in this case that the departmental proceedings were instituted against the petitioner in this case by virtue of Rule 9(2)(b) and (i) of the said Pension, Rules, which are extracted below :

"9(2)(b): 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 ofthe Government.

(ii) ...............................

(iii) ...............................

Thus, according to this rule, the departmental proceedings can be instituted against the retired servants with the sanction of the Government. In this case, the Government itself instituted departmental proceedings and the Tribunal rightly held that this rule has been satisfied in this case.

The other objection canvassed by Mr. Mirza Imamulla Baig, the learned Counsel for the petitioner is that Rule 9(2)(b)(ii) mandates that no such enquiry can be held against the petitioner in respect of any event that took place more than four years before such institution. The contention of the learned Counsel for the petitioner in this case based on the said rule is that the enquiry which was deemed to have been instituted on 2-8-1997 is in respect of misconduct attributed to the petitioner in 1992 and as such, holding such an enquiry is illegal and contrary to the said Rules. The learned Government Pleader for Home has pointed out that according to Rule 9(2)(b)(ii), the Articles of charges and statement of imputations were served on the petitioner on 2-8-1997. A reading of this document would show that the first misconduct attributed to the petitioner was related to December, 1992 and obviously it is beyond four years from the date of serving of the Charge Memo on the petitioner. But a careful reading of this document would show that the matter did not end there and that the petitioner continued his involvement in the affair in which the allegation is that he abused his official position and falsely detained an innocent person in illegal custody to extract some reimbursement of amount, from that person said to have been illegally collected from some one who seems to have approached the petitioner for redressal. Thus it is seen that there is an allegation that one Abdul Sateem who returned to Hyderabad in December 1993 was taken by Police Constable, Chand Pasha of Detective Department and produced before Mohd. Tahseen Additional Deputy Commissioner of Police, Detective Department (Petitioner) who after beating ordered him to be put in the lock-up. This would indicate that the allegations of misconduct includes the period in December, 1993 which appears to be continuation from December, 1992. Thus there is nothing to show that the entire incident attributing misconduct to the petitioner falls beyond four years from the date of institution of departmental enquiry, namely, 2-8-1997.

In view of this, it must be held that the petitioner has not succeeded in showing that there is any illegality or arbitrariness or violation of any Rules either in withholding part of the pension by way of sanctioning provisional pension or in institution of departmental enquiry against him. The Judgment of the Tribunal does not suffer from any error of law. The writ petition is, therefore, dismissed. The parties are directed to bear their own costs.

B. Subhashan Reddy and Vaman Rao, JJ.

After the judgment is rendered Mr. Imamullah Baig, learned Counsel has brought to our notice that even as on this day no progress has been made with regard to disciplinary enquiry. In the circumstances, we direct the disciplinary enquiry to be completed after affording opportunity to the petitioner within a period of four months from the date of communication of this order.