http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: DR. K.RAMACHANDRAN

DATE OF JUDGMENT:       06/01/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SAGHIR AHMAD, J.      By G.O  (MS) M  & H dated march 3, 1981, the Government of Andhra  Pradesh had imposed the penalty of 20% cut in the pension of  the respondent  for period of 5 year. By another order G.O.  1278 M  &  H  dated  10.8.1981,  the  Government refused to  treat the period of suspension of the respondent as period  spent on duty. Both the orders were challenged by the respondent  before  the  Andhra  Pradesh  Administrative Tribunal, which  by  its  Judgment  dated  22nd  June,  1985 allowed the  petition and  set aside the above orders on the ground that  the Government  had  no  jurisdiction  to  hold disciplinary proceedings  as  the  disciplinary  proceedings could be  held only  by the  Tribunal constituted  under the Andhra  Pradesh  civil  Services  (Disciplinary  Proceedings Tribunal) Act, 1960.      Learned counsel  appearing on  behalf of  the state  of Andhra  Pradesh  contends  that  the  Government  being  the employer and  the Authority  which can  pass final orders of punishment  in   disciplinary   proceedings,   retains   its jurisdiction to proceed departmentally against its employees for mis-conduct  committed by  them in spite of the Tribunal constituted under  the Act  of 1960 for holding disciplinary proceedings and  therefore  the  decision  of  the  Tribunal taking,  a  contrary  view,  is  not  correct.  We  are  not impressed by the argument.      Sub-section (2)  (d) of  the  Act  defines  ‘Tribunal’, which means  Tribunal constituted  under section  3. Section 2(c) defines  the word  ‘prescribed’, which means prescribed by rules made under the Act.      section (3)  of the Act provides as      under:           "Every member  of the Tribunal      shall be  a Judicial Officer of the      status of  a District Judge and his      appointment shall  be made  by  the      Government out  of a panel of names      forwarded by the High Court."      Section 4  of the Act, prior to its amendment by Andhra Pradesh Act 6 of 1993, provided as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

         "4. Cases  to be  referred  to      Tribunal:  The   Government   shall      refer to cases as may be prescribed      of allegations of misconduct on the      part of Government Servants".      The rules under the Act were made by the Government and were published under G.o. MS No. 895 G.A. (Ser-D) dated 18th July, 1961, in which misconduct has been defined as under:           "2 (b) "Misconduct" shall have      the  same   meaning   as   criminal      misconduct under  Section 5  (1) of      the Prevention  of Corruption  Act,      1947 (Central  Act II  of 1947) and      shall include any attempt to commit      any offence  referred to  in clause      (c) of  clause (d)  of that section      and any  "wilful  contravention  of      the rules  made under  the  proviso      top Article 309 of the constitution      of India to regulate the conduct of      persons   appointed    to    public      services and  posts  and  posts  in      connection with  the affairs of the      state’. (G.O.  Ms.. No.  1026, G.A.      (Ser-D), dated 16.2.1969."      Rule 3 which is the relevant rule is quoted below:                "Government  may  subject      to the  provisions of  rule 4 refer      to the  Tribunal  for  enquiry  and      report under section 4 of the Act-           (a)    case     relating    to      Government servants drawing a basic      pay of Rs. 360 and above per mensem      in  respect  of  matters  involving      misconduct; and           (b)    cases    relating    to      Government servants drawing a basic      pay of less then Rs. 600 per mensem      in  respect  of  matters  involving      misconduct   committed    by   such      Government servants  either jointly      with government  servant drawing  a      basic pay  of not less then Rs. 360      per mensem  of in the course of the      same     transaction      involving      misconduct committed  by such other      Government servants.  (G.O. Ms. No.      490 GAD (Ser-D) dated 25.7.1980:           Provided that  it shall not be      necessary to  refer to the Tribunal      any case  in which the Tribunal has      at any previous stage, reported its      finding in  regard to  the order to      be passed and no fresh question has      thereafter        arisen        for      determination".  (G.O.Ms.   No.718,      G.A.(Ser-C),  dated   8th  October,      1976.           "2(A)  Where   two   or   more      Government servants  are  concerned      in any case the Government may make      an  order   directing  disciplinary      proceedings against all of them may      be taken  in  a  common  proceeding      and; thereupon  the Tribunal  shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    conduct the  enquiry into such case      accordingly" (G.O.  Ms.  No.  862),      G.A., dated 9.8.1972.           (3)  Notwithstanding  anything      contained in  sub-rule (1)  or (2),      cases  arising   in  the   Judicial      Department and cases of officer and      servant of  the High Court who come      under the  rule making  control  of      the chief  Justice as  laid down in      article 229  of the Constitution of      India shall  not be referred to the      Tribunal".      Under the above Rule, the employees, whose cases are to be referred  to the  Tribunal have been specified. If any of the employee  falling within  the above  category  committed misconduct, his  case, in view of unamended section 4 of the Act, "particularly  because of  the use  of the word "SHALL" therein, had  to be  referred to  the  Tribunal  constituted under that  Act for  holding disciplinary  proceedings. This Tribunal, it will be noticed, is presided over by a Judicial Officer of  the rank  of a  District Judge  appointed by the Government from  a panel  of names  recommended by  the High Court.      It is  apparent that  at the  relevant time,  when  the disciplinary   proceedings    were   started   against   the respondent, the  Government  had  no  jurisdiction  to  hold departmental proceedings for the misconduct committed by the respondent. It had no choice except to refer the case to the Tribunal.      Section 4  of the  Act which was in mandatory terms was amended by Andhra Pradesh Act 6 of 1993 and the word "shall" occurring in section 4 was replaced by the word "may", which gave a  direction to the Government to refer or not to refer the matter to the Tribunal. Section 4A which was inserted in the Principal  Act by  the same amending Act, namely, Andhra Pradesh Act  6 of  1993, gave  power to  the  Government  to withdraw at any stage, any case from the Tribunal before its conclusion. This,  again indicates  that the choice to refer or not  to refer  the case  to the Tribunal for disciplinary proceeding or  to withdraw  any case already referred to the Tribunal became  available to  the Government only after the amendment of the principal Act by Act 6 of 1993.      The Judgment passed by the Administrative Tribunal does not, therefore  , suffer  from any  error or illegality. the appeal is consequently dismissed. There shall be no order as to costs.