REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2009 (Arising out of SLP (C) No.6261 of 2005)

V. Padmanabham … Appellant

Versus

Government of Andhra Pradesh & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant herein was a Deputy Tehsildar, Director of Civil Supplies,  

Punganoor in the District of Chittoor.  He worked in the said capacity from  

11.5.1992  to  21.1.1993.   During  the  aforementioned  period,  Essential  

Commodities  meant  for  public  distribution  were  supplied  to  the  private  

parties; the price whereof is stated to be Rs.12,46,523.60.  

He  was  placed  under  suspension  on  29.1.1993.   A  departmental  

proceeding was initiated.   An enquiry officer  was appointed for the said  

purpose.  He was found guilty in the said departmental proceedings, relying  

on or on the basis whereof, an order of dismissal was passed on 21.10.1994.

3. An appeal preferred by the appellant thereagainst was also dismissed.  

He filed an original application before the Andhra Pradesh Administrative  

Tribunal.   On the premise that  the enquiry officer  was not  competent  to  

frame the charges, the order of dismissal was set aside.

4. The State filed a writ petition thereagainst before the High Court.  By  

reason  of  the  impugned  judgment,  the  said  judgment  and  order  of  the  

Tribunal was set aside, directing :

“We  have  considered  the  contentions  of  the  learned counsel with reference to the APCS (CC &  A)  Rules.   As  can  be  seen  from  the  Rules,  appointment  of  Enquiry  Officer  comes  into  play  only  after  the  explanation  is  filed  to  the  charge  sheet  and  decision  is  to  be  taken  by  the  Disciplinary Authority to conduct further enquiry.  In the instant case, the Enquiry Officer had himself  framed  the  charges  which  goes  contrary  to  the  Rules 20 and 21 of the APCS (CC & A) Rules.  Under  those  circumstances,  we  do  not  find  any  ground to interfere with the order of the Tribunal,  but,  however,  it  is  contended  by  the  learned  Government  Pleader  that  giving  direction  to  the  Department  to  reinstate  the  petitioner  is  only  misconceived.   Admittedly,  the  employee  was  

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under suspension prior  to the order  of  dismissal.  Under those circumstances, the Tribunal ought not  to  have  directed  reinstatement  of  the  petitioner.  We are in agreement with the contention raised by  the  learned  Government  Pleader.   When  further  action is sought to be taken in accordance with the  Rules, the Tribunal ought to have left the matter to  the discretion of the authorities.  Moreover, in the  instant  case,  the  employee  was  already  under  suspension from 1993 and the order of dismissal  was  set  aside  on  the  technical  ground  that  the  Enquiry  Officer  was  not  competent  to frame the  charges.   Under  those  circumstances,  we  are  inclined  to  modify  the  order  relating  to  reinstatement  and  we  direct  that  1st respondent  shall  be  deemed  to  have  continued  under  suspension impugned order.”

5. Appellant is before us aggrieved by and dissatisfied with the  

said directions.

6. Indisputably,  the enquiry proceedings did not make much progress.  

He was allowed to superannuate.   

It  is  on the aforementioned premise,  Mr.  D. Rama Krishna Reddy,  

learned counsel appearing on behalf of the appellant, would contend that the  

impugned  judgment  of  the  High  Court  should  be  set  aside  and  the  

disciplinary proceedings may not be directed to be continued.

7. Mr. I. Venkatanarayana, learned senior counsel appearing on behalf of  

the State, however, urged that despite superannuation of the appellant, the  

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departmental proceedings which were pending against him must be held to  

be continuing in terms of the provisions of Andhra Pradesh Pension Code  

and,  thus,  there  is  no  legal  impediment  in  imposing  any  punishment  

withdrawing the whole or part of the pension so as to enable the State go  

recover  the  amount which it  suffered owing to  the  acts  of  omission  and  

commission on the part of the appellant.

8. The  disciplinary  proceeding  was  initiated  against  the  appellant  in  

terms of the provisions of the Andhra Pradesh Civil Services (Classification,  

Control and Appeal) Rules.  Part-V of the said Rules lay down the procedure  

for imposing penalties.  Indisputably, in the departmental proceedings, it is  

incumbent to draw up the substance of the imputations of misconduct  or  

misbehaviour into definite and distinct articles of charge and a statement of  

the imputations of the misconduct or misbehaviour in support of each article  

of charge containing the details as are specified therein.   

The Administrative Tribunal in its judgment and order dated 2.1.2002  

has held as under :

“It is seen from the records that the charges were  framed  by  the  enquiry  officer  who  is  the  RDO.  RDO is neither the appointment authority nor the  disciplinary  authority  for  the  Dy.  Tahsildars.  According  to  Rules  20  and  21  it  is  only  the  appointing  authority/Disciplinary  authority  who  

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has  to  frame  charges  against  the  applicant  duly  furnishing  him the  documents  prescribed  therein  namely  the  basis  for  the  charges.   List  of  documents and witnesses to be examined etc., this  was not done.  The Collector ought to have framed  the  Charges  and  called  for  the  applicant’s  explanation.  In case he was not satisfied then only  he  ought  to  have  appointed  the  enquiry  officer.  The  very  appointment  of  the  enquiry  officer  straight  way  by  the  Collector  rendered  the  proceedings void as the procedure laid down under  the OCA Rules is a statutory one.”

In view of the aforementioned findings of the Administrative Tribunal  

itself, the State was entitled to initiate a fresh departmental proceeding.  It  

furthermore appears from the records that the appellant himself had admitted  

distribution  of  a  part  of  the  essential  commodities  meant  for  public  

distribution to private persons.  The State by reason of the aforementioned  

acts of omission and commission on the part of the appellant is said to have  

suffered financial loss to the extent of more than Rs.12,00,000/-.   

It has not been disputed before us that in terms of Rules 9(2) of the  

Andhra Pradesh Pension Code the disciplinary proceedings initiated against  

the appellant could continue.

9. Rule 9(2)(a) reads as under :

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“9.  Right  of  Government  to  withhold  or  withdraw pension:—(1)…

(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.

10. Indisputably,  therefore,  the  departmental  proceedings  which  have  

been pending against the appellant do not suffer from any legal infirmity and  

in law would be deemed to have been continuing.

In  State of U.P. & Ors. v.  Harihar Bholenath [(2006) 13 SCC 460],  

this Court stated :

“10. A departmental  proceeding  can  be  initiated  for  recovery  of  amount  suffered  by  the  State  exchequer  owing  to  the  acts  of  omission  or  commission  of  a  delinquent  employee  in  three  different situations:

(i) when a  disciplinary  proceeding is  initiated  and  concluded  against  a  delinquent  

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employee  before  he  reaches  his  age  of  superannuation;

(ii) when  a  proceeding  is  initiated  before  the  delinquent  officer  reached  his  age  of  superannuation  but  the  same  has  not  been  concluded and despite the superannuation of  the  employee,  an order  of  recovery  of  the  amount  from  the  pension  and  gratuity  is  passed; and

(iii) an  enquiry  is  initiated  after  the  delinquent  employee  reaches  his  age  of  superannuation.”

In UCO Bank & Anr. v. Rajinder Lal Capoor [(2007) 6 SCC 694], this  

Court stated :

“21. The  aforementioned  Regulation,  however,  could  be  invoked  only  when  the  disciplinary  proceedings had clearly been initiated prior to the  respondent’s  ceasing  to  be  in  service.  The  terminologies  used  therein  are  of  seminal  importance. Only when a disciplinary proceeding  has  been initiated  against  an officer  of  the  bank  despite his attaining the age of superannuation, can  the disciplinary proceeding be allowed on the basis  of the legal fiction created thereunder i.e. continue  “as if he was in service”. Thus, only when a valid  departmental proceeding is initiated by reason of  the  legal  fiction  raised  in  terms  of  the  said  provision, the delinquent officer would be deemed  to be in service although he has reached his age of  superannuation. The departmental proceeding, it is  trite law, is not initiated merely by issuance of a  show-cause  notice.  It  is  initiated  only  when  a  charge-sheet is issued.”

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11. Mr. Rama Krishna Reddy, however, would urge that having regard to  

the fact that the departmental proceedings were initiated in the year 1992-93,  

this  Court should not direct  continuation of the departmental proceedings  

any further.  Strong reliance in this behalf has been placed on M.V. Bijlani  

v. Nion of India & Anr. [(2006) 5 SCC 88].

12. We have noticed heretobefore that continuation of the departmental  

proceedings is not illegal.  The Pension Code raises a legal fiction in terms  

whereof the departmental proceedings would be deemed to have continued.  

The Tribunal has passed an order in favour of the appellant  on technical  

grounds.  The High Court, therefore, in our opinion, cannot be said to have  

committed any illegality in passing the impugned judgment.   

It may be true that in Bijlani (supra), this Court relying on or on the  

basis of an earlier judgment of this Court in  State of Madhya Pradesh v.  

Bani Singh [1990 Supp. SCC 738], held as under :

“16. So far as the second charge is concerned, it  has not been shown as to what were the duties of  the  appellant  in  terms  of  the  prescribed  rules  or  otherwise.  Furthermore,  it  has  not  been  shown  either by the disciplinary authority or the Appellate  Authority  as  to  how  and  in  what  manner  the  maintenance of ACE-8 Register by way of sheets  which  were  found  attached  to  the  estimate  file  were  not  appropriate  so  as  to  arrive  at  the  culpability  or  otherwise  of  the  appellant.  The  

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Appellate  Authority  in  its  order  stated  that  the  appellant  was  not  required  to  prepare  ACE-8  Register twice. The appellant might have prepared  another set of register presumably keeping in view  the fact that he was asked to account for the same  on the basis of the materials placed on records. The  Tribunal as also the High Court failed to take into  consideration  that  the  disciplinary  proceedings  were  initiated after  six years  and they continued  for a period of seven years and, thus, initiation of  the  disciplinary  proceedings  as  also  continuance  thereof after such a long time evidently prejudiced  the delinquent officer.”

In  that  case,  the  disciplinary  proceedings  were  initiated  five  years  

after the appellant therein had handed over charge.  It was opined that he  

was not having possession of any document.  Seven years’ time was taken to  

complete the enquiry.  Appellate Authority also took five years in disposing  

of the appeal.  None of the authorities had taken into consideration as to  

whether the procedure laid down under the Rules has been followed or not.  

It is in the aforementioned fact situation, such a direction was issued.

13. This case, however, stands on a different footing.  There was no delay  

in  the  matter  of  initiation  of  the  departmental  proceedings.   It  was  also  

concluded within a reasonable time.  The appellant preferred appeals before  

the Collector in the year 1994.  The said appeal was dismissed by an order  

dated 21.10.1994.  In the orders passed by the disciplinary authority as also  

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the Collector, the matter has been dealt with in great details.  Each and every  

aspect  of the matter  including defences raised by the appellant  had been  

taken into consideration.  It has specifically been noticed that various notices  

have been issued to the appellant.   

The  appellant,  however,  filed  the  original  application  before  the  

Tribunal in the year 1997.  It was disposed of by the Tribunal by a judgment  

and order dated 2.1.2002.  The State immediately filed a writ petition before  

the High Court which was disposed of by an order dated 23.11.2004.  It is  

during the pendency of the matter before us, the appellant is said to have  

reached the age of superannuation.  We, therefore, are of the view that delay  

alone in a case of this nature should not be held to be fatal in the matter of  

continuing the departmental proceeding as the charges against the appellant  

are serious in nature and a large sum of money have to be recovered from  

the appellant.  It is, thus, not expedient in the interest of justice that on the  

ground of delay alone, the matter should be given a quietus.  We may place  

on  record  that  a  Division  Bench  of  this  Court  in  U.P.  State  Sugar  

Corporation Ltd. & Ors. v. Kamal Swaroop Tondon [(2008) 2 SCC 41], held  

as under :

“27. In  UCO Bank v.  Sanwar Mal, the Court held  that  two  concepts:  (i)  resignation;  and  (ii)  

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retirement  were  different  and  employed  for  different  purposes  and  in  different  contexts.  Resignation  brings  about  complete  cessation  of  master  and  servant  relationship,  but  retirement  does not do so. In case of retirement, master and  servant  relationship  continues for  grant  of  retiral  benefits.

28. If  it  is  so,  the  appellant  Corporation,  in  our  opinion, is right in submitting that the proceedings  could have been continued after the retirement of  the respondent employee as far as the financial loss  caused to the  Corporation  because  of  negligence  on the part of employee and the benefit claimed by  the respondent workman on his terminal benefits  are concerned.”

14. We respectfully agree with the aforementioned dicta having regard to  

the fact situation obtaining in the instant case.   

15. The  appeal  is,  therefore,  dismissed.   However,  in  the  facts  and  

circumstances of the case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Deepak Verma]

New Delhi; July 27, 2009.

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