IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 997 of 2000 Between: V.Ramachandra Reddy S/o.Kotireddy N.S.C.Sub Division-I, Miryalguda, Nalgoda District, R/o. Miryalguda. ..... PETITIONER AND 1 The Secretary to Government, Irrigation and C.A.D Department Secretariat Buildings, Hyderabad. 2 The Engineer-in-Chief, Irrigation and CAD Department, (Admn.Wing), Errum Manzil, Hyderabad. 3 D.Rajendra Kumar H.No.1-7-1073, RTC X Roads, Opp.Sapthagiri Theatre, Musheerabad, Hyderabad. 4 The Superintending Engineer, Irrigation Circle Red Hills, Hyderabad. 5 The Superintending Engineer, Irrigation S1.B.C. Circle No.3 Miryalguda, Nalgonda District. 6 The Executive Engineer, Irrigation Department I.B.Division Nalgonda. 7 The Executive Engineer, I&CAD., N.S.Canals Division Miryalguda, Nalgonda District. 8 The Registrar, A.P. Administrative Tribunal Puranahaveli, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, order or direction more in the natire of Certiorari calling for the records relating to impugned Govt.Memo.No.51226/Ser.I- 1/94-8, dated 29-12-95 and its connected proceedings in Rc.No.S3/3715/86, dated 2-3-1996 issued by the 2nd Respondent and its consequential Memo.No.EC/E3/96/858 M, dt.31-5-96 issued by the Executive Engineer Irrigation Department IB Division, Nalgonda together with the records rertaing to judgement in O.A.No.3294 of 1996, dated 31- 12-98 and struck down the same and pass such other and further orders as this Hon'ble Court may deem fit and proper. Counsel for the Petitioner:MR.D.LINGA RAO Counsel for the Respondent No.: GP FOR IRRIGATION & COMM AREA DEV. The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.997 OF 2000 ORDER: (Per GM,J) This writ petition is filed seeking a writ of certiorari calling for the records relating to Govt. Memo No.51226/Ser.I-1/94-8 dated 29.12.1995, its connected proceedings in Rc.No.S3/3715/86 dated 02.03.1996 issued by the second respondent and the consequential Memo No.EC/E3/96/858M dated 31.05.1996 issued by the sixth respondent together with the records pertaining to Judgment dated 31.12.1998 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, (for brevity, ‘the Tribunal’) in O.A.No.3294 of 1996 and to quash the same and issue consequential directions to the respondents to release the pensionary benefits to the petitioner. The brief facts of the case are as follows: The petitioner was initially appointed as Supervisor in 1961 and later, after due selection by the Andhra Pradesh Public Service Commission, he was appointed as Supervisor on regular basis in the year 1965 and continued as such till his retirement on attaining the age of superannuation on 31.05.1997. While he was in service, he was transferred on 01.10.1985 from Miryalaguda Section to Gurrampode Section in I.B.Division Nalgonda. Aggrieved thereby, he filed Representation Petition No.1681 of 1985 before the Tribunal. However, the said petition was dismissed by the Tribunal on 05.08.1986. Immediately thereafter he filed Review Application in R.M.P.No.1070 of 1986 seeking review of the order passed by the Tribunal on 05.08.1986. The Review Application was also dismissed by the Tribunal on 26.07.1989. During the pendency of R.P.No.1681 of 1985, the second respondent appointed the Superintending Engineer, Irrigation Circle, Warangal, as Enquiry Officer by his proceedings Rc.ENC.S#/3715/86 dated 24.01.1986 for conducting a departmental enquiry against the petitioner along with another. Thereafter, the fourth respondent placed the petitioner and another under suspension vide his proceedings O.O.No.E2/85-26/363 dated 14.02.1986. The Enquiry Officer issued Charge Memo dated 06.02.1987 framing two charges against the petitioner. The petitioner submitted his explanation to the said charge memo on 10.03.1987. After completing the enquiry, the Enquiry Officer submitted his report on 06.04.1988 holding that the two charges levelled against the petitioner were held not proved. The Enquiry Officer observed that according to the guidelines issued by the Government in Memo NO.3170/Ser.II-1/82-1 dated 11.10.1982 the important requirement is that the relieving officer and relieved officer have to come to a mutual agreement regarding the date of handing over of their charges. Thereafter, the Government issued G.O.Rt.No.569 on 11.07.1988, ratifying the suspension of the petitioner and continuing the same beyond 16.08.1988 in public interest until further orders. Later, the petitioner was reinstated in service by the Chief Engineer without giving posting orders by Proceedings dated 26.09.1988. While the matter stood thus, the fourth respondent herein issued Show Cause Notice dated 10.11.1988 to the petitioner calling for his explanation as to why the provisional punishment mentioned in para-4 thereof namely (1) to treat the period of suspension as dies non, (2) to stop four increments with cumulative effect and (3) to recover Rs.2,55,517.80 towards the cost of non-accounted cement, should not be imposed upon him. The petitioner submitted his explanation on 12.01.1989 to the said Show Cause Notice informing that the provisional decision of the then Engineer-in-Chief arrived at behind his back ignoring the detailed report of the Enquiry Officer and relying upon the report dated 26.09.1988 of the fourth respondent is illegal and arbitrary and therefore requested to drop further action in view of the report of the Enquiry Officer. Subsequently, the second respondent issued Proceedings No.Rc.ENC/3715/86 dated 11.08.1989 making absolute the provisional decision without considering the enquiry report submitted by the Enquiry Officer. Aggrieved thereby, the petitioner filed a Representation Petition No.24383/89 before the Tribunal. The Tribunal disposed of the said R.P. at the stage of admission directing the petitioner to avail the remedy of appeal. Thereafter, the petitioner preferred an appeal on 13.09.1989 before the Government against the order dated 11.08.1989 passed by the second respondent. However, the Government ratified the order dated 11.08.1989 in its Memo No.51226/Ser-I-1/94-8 dated 29.12.1995 without any reference to the appeal preferred by the petitioner. As a consequence thereof, the second respondent issued Proceedings Rc.No.S3/3715/86 dated 02.03.1996 instructing the Superintendent Engineer and other respondents to take immediate action to recover the amounts allegedly due from the petitioner. Accordingly, the fourth respondent issued Memo No.EC.E3/96/ 858-M dated 31.05.1996 proposing recovery of the alleged loss of Rs.2,55,517.80 from the salary of the petitioner at the rate of Rs.2,045/- per month upto 31.05.1977 i.e. till the date of retirement of the petitioner and the balance amount of Rs.2,30,977.80 from his pensionary benefits. Aggrieved thereby, the petitioner filed O.A.No.3294 of 1996 before the Tribunal and the Tribunal on 31.12.1998 while disposing of the O.A., remitted the matter to the competent authority to examine the matter afresh taking into consideration the observations made by it and pass appropriate orders as expeditiously as possible and at best within a period of three months from the date of submission of papers by the petitioner. It is relevant to note that during the pendency of the said O.A. the petitioner retired from service on 31.05.1997 and the respondents implemented the order of punishment and withheld four increments and also stopped increment during the period of suspension apart from effecting recovery of alleged loss of Rs.2,55,517.80 from his pensionary benefits and thereafter released the pension on that basis. This exercise made by the respondents, according to the petitioner, is in contravention of the A.P.C.S. (CC&A) Rules. Subsequent to the directions given by the Tribunal on 31.12.1998 in O.A.No.3294 of 1996, the respondents had not taken any action and instead the pensionary benefits of the petitioner were not released on the pretext of the order of the Tribunal. Aggrieved thereby, the petitioner straight away filed the present writ petition challenging the action of the respondents in not considering the directions given by the Tribunal in O.A.No.3294 of 1996 and also not releasing his pensionary benefits. Heard Sri D.Linga Rao, learned counsel for the petitioner and the learned Government Pleader for Services-II appearing for the respondents. The learned counsel for the petitioner submitted that in view of the directions given by the Tribunal in its order dated 31.12.1998 passed in O.A.No.3294 of 1996, the second respondent had only dropped one charge out of the three charges levelled against the petitioner and confirmed the other two charges by way of his proceedings dated 29.09.2001 which were issued during the pendency of the instant writ petition and that the second respondent should have considered the directions given by the Tribunal in its true letter and spirit and dropped all the three charges levelled against the petitioner and ordered release of the full pension to the petitioner. He, therefore, prayed that the writ petition be allowed and necessary consequential directions be issued to the respondents. Per contra, the learned Government Pleader for Services-II appearing for the respondents submitted that the respondents having considered the directions given by the Tribunal in its order dated 31.12.1998 passed in O.A.No.3294 of 1996, dropped one charge pertaining to stoppage of four increment with cumulative effect while confirming the other two charges, namely, treating the period of suspension as “dies non” and recovery of an amount of Rs.2,55,517.80 towards loss caused to the Government for non-accounted cement, by way of the proceedings No.Rc/ENC/S3/ 3715/86 dated 29.09.2001 issued by the second respondent. On facts, he submitted that if the petitioner is aggrieved by either the withholding of his pensionary benefits by the respondents or the proceedings dated 29.09.2001 issued by the second respondent during the pendency of the present writ petition, the remedy for the petitioner is to approach the Tribunal in the first instance and he cannot straight away invoke the jurisdiction of this Court under Article 226 of the Constitution. He therefore prayed that the writ petition be dismissed as not maintainable. We have perused the entire record including the order dated 31.12.1998 passed by the Tribunal in O.A.No.3294 of 1996 and the proceedings dated 29.09.2001 which were issued by the second respondent during the pendency of the present writ petition. We are unable to understand as to how the present writ petition is maintainable. If the petitioner is aggrieved by the action of the respondents in not releasing his pensionary benefits or it is his case that the respondents have not considered the directions given by the Tribunal in O.A.No.3294 of 1996 and that the proceedings dated 29.09.2001 issued by the second respondent are not in consonance with the directions given by the Tribunal, his remedy is to approach the Tribunal in the first instance and without availing that remedy the petitioner cannot straight away approach this Court invoking the Jurisdiction of this Court under Article 226 of the Constitution of India. It is apposite here to refer to the Judgment of the Supreme Court in L.CHANDRA KUMAR v. UNION OF INDIA AND OTHERS[1] wherein it was held inter alia thus: “93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” [Emphasis supplied] In view of the facts and circumstances of the case and having due regard to the Judgment of the Supreme Court in L.CHANDRA KUMAR’s case, we are not inclined to entertain the writ petition on the ground of maintainability. However, it is open to the petitioner to approach the Tribunal, if he is so advised, within a period of four weeks from the date of receipt of a copy of this order, in which event, the Tribunal without reference to the delay in the filing of the O.A. in view of the time taken in prosecuting the instant writ petition, may consider and dispose of the same in accordance with law as expeditiously as possible. With the above observations, the writ petition is dismissed. In the circumstances, there shall be no order as to costs. ___________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 19th February, 2009. PGS / VGSR [1] AIR 1997 SC 1125