THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.23363 OF 2005 ORDER: {Per the Hon’ble Sri Justice Ghulam Mohammed} This Writ Petition is filed for a Writ of Certiorari to call for the records relating to G.O.Rt.No.1668 Revenue (Vigilance III) Department, dated 04.09.2003 on the file of the first respondent, as confirmed by order dated 08.08.2005 passed by the Andhra Pradesh Administrative Tribunal, in O.A.No.9289 of 2002 and to quash the same, and for a consequential direction to the first respondent to release full pension to the petitioner. Brief facts of the case are that the petitioner was appointed as Typist on 04.11.1963 in the Office of the Director of Mines and Geology and later he was transferred to Revenue Department. He was promoted as Mandal Revenue Officer in 1978, and further promoted as Deputy Collector in 1997 and retired as such on 31.07.1997 on attaining the age of superannuation. The first respondent has issued a charge memo dt.30.7.1997 to the petitioner on the date of his retirement for certain alleged irregularities said to have been committed by him in the year 1989 while he was working as Mandal Revenue Officer at Uppal. The petitioner has submitted his explanation on 24.07.1998 denying the charges levelled against him. The first respondent by order dt.26.09.2000 appointed third respondent as Enquiry Officer to conduct enquiry into the irregularities alleged against the petitioner. The third respondent issued a fresh charge memo dt.02.01.2001 and called upon the petitioner to submit explanation, for which he submitted explanation on 07.03.2001 questioning the power and authority of the third respondent to issue a fresh charge memo. The petitioner was called upon by the third respondent to attend an enquiry on 13.07.2001 and the petitioner has attended the enquiry and submitted his written statement denying the charges levelled against him. Thereafter no enquiry report was submitted by the third respondent and retirement benefits of the petitioner were also not settled on the ground of pendency of disciplinary proceedings. As the disciplinary proceedings were delayed and pensionary benefits were not settled, the petitioner filed O.A.No.7173 of 2001 before the Andhra Pradesh Administrative Tribunal, Hyderabad, questioning the power and authority of the third respondent to issue a fresh charge memo dt.02.01.2001 in respect of the lapses which relate to more than four years before his retirement from service. The Tribunal disposed of the said O.A. directing the respondents to finalize the enquiry against the petitioner and pass orders within a period of three months from the date of receipt of the order failing which the respondents are directed to release the entire pensionary benefits, including gratuity, due to the petitioner. Later the third respondent submitted the enquiry report to the first respondent along with a letter dt.09.03.2002 basing on which the first respondent issued a notice dt.02.05.2002 proposing to impose a penalty of 10% cut in the pension permanently. Aggrieved by the same, he filed O.A.No.9289 of 2002 before the Tribunal. When the same was pending before the Tribunal, the first respondent issued proceedings in G.O.Rt.No.1668 dated 04.09.2003 imposing punishment of 10% cut in pension permanently. The petitioner, therefore, filed an application to amend the prayer in O.A.No.9289 of 2002 and questioned the said G.O. dt.04.09.2003. By order dt.08.08.2005 the Tribunal dismissed O.A.No.9289 of 2002. Hence, the Writ Petition. According to the petitioner is that on a similar charge, a charge memo was issued to one Sri A. Gurudayal, a retired Deputy Collector, is almost identical to charge No.2 in the charge memo given to the petitioner, the second respondent vide his letters dt.31.01.1993 and 11.02.1998 addressed to the first respondent recommended for dropping of disciplinary action against the petitioner and said Gurudayal and that the first respondent on the basis of the recommendations of the second respondent issued an order dt.31.10.1998 dropping further disciplinary action against said Gurudayal, but no such orders are passed in the case of the petitioner. The petitioner contends that there is an inordinate delay on the part of the respondents in issuing charge memo, conducting of enquiry and in submitting the enquiry report. The main grievance of the petitioner is that even though the third respondent submitted a report recommending to the first respondent to take a lenient view in the matter in view of the fact that the petitioner has already retired from service and is suffering from health problems, but the first respondent issued notice dt.02.05.2002 proposing to impose a penalty of 10% cut in the pension permanently, and after filing O.A. before the Tribunal by the petitioner the first respondent issued G.O. Rt. No.1668 dt.04.09.2003 imposing the said punishment. The petitioner further contends that the punishment imposed is disproportionate to the charges leveled against him viz., that they would not amount to grave misconduct or gross negligence. The Tribunal has not considered the various grounds raised by the petitioner and failed to exercise jurisdiction vested in it. While opposing the writ petition, the respondents have filed a counter affidavit wherein it is stated that the petitioner while working as Mandal Revenue Officer, Uppal, has indulged in issuing order for correction of entries recorded in the pahanies by deleting the word INAM and by incorporating the word PATTA against survey No.9 without verifying the record, which is in violation of Rules. Charges were framed calling for petitioner’s explanation on 30.07.1997 for which the petitioner has submitted his explanation on 24.07.1998. Since no satisfactory explanation was offered by the petitioner, the matter was entrusted to the Joint Collector, Ranga Reddy District, by appointing him as Enquiry Officer and while conducting disciplinary enquiry the required procedure has been followed. After submission of the enquiry report, Government decided to impose punishment of 10% cut in pension of the petitioner. After receipt of necessary concurrence of the Service Commission, final orders were issued and the delay in issuing final order is not intentional but due to administrative reasons. The petitioner cannot compare his case with that of Sri Gurudayal, retired Deputy Collector, as the nature of the offence is different. The Tribunal, on considering the entire material on record, rightly dismissed the O.A. preferred by the petitioner and hence the impugned order does not require any interference and the writ petition is liable to be dismissed. A reply affidavit is filed by the petitioner denying charges leveled against him and stating that the charge memo dated 31.07.1997 was given to him in respect of the irregularities alleged to have been committed in the year 1989 and that the respondents have no power or authority to hold enquiry after lapse of more than four years. The enquiry officer was appointed after a lapse of more than two years after submitting petitioner’s explanation to the charge memo. Learned counsel for the petitioner submitted that as per Rule 9(2) (b) of the Andhra Pradesh Revised Pension Rules, 1980 (for short, ‘the Rules’) departmental proceedings can be initiated only with the prior sanction of the Government and that too in respect of any event which took place not more than four years before such institution and in the instant case, since the enquiry officer has issued charge memo on 02.01.2001 in respect of an event which occurred in the year 1989 and continuance of such proceedings is contrary to the Rule 9(2)(b) of the Rules. He further contended that the respondents have pre- determined to impose punishment against the petitioner. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in D.V. Kapoor v. Union of India[1] in support of this contention. Learned Government Pleader for Services-I appearing for the respondents, on the other hand, submitted that the charge memo dated 30.7.1997 was issued to the petitioner while he was in service and hence the embargo under Rule 9(2)(b)(ii) of the Rules, that the departmental proceedings if not instituted while the government servant was in service shall not be instituted in respect of any event took place more than four years before such institution, will not come in the way of the respondents to take action against the petitioner. Further, in view of the order of the Tribunal dt.18.10.2001 in O.A. No.7173 of 2001, whereby it directed the respondents to finalize the enquiry against the petitioner and issue orders, the petitioner cannot contend that the charges relate to the year 1989 cannot be proceeded with after his retirement. In view of the fact that the petitioner has issued an irregular order for correction of entries recorded in the pahanies by deleting the word ‘inam’ and by incorporating the word ‘patta’ against survey No.9 without verifying the record and as it is a grave error committed by the petitioner deliberately, charges were framed against him and as the disciplinary proceedings initiated against the petitioner are pending as on the date of his retirement, pensionary benefits were not settled. Subsequently, the Government passed final order imposing the punishment of 10% cut in pension. The Tribunal has considered the matter in detail and passed order dismissing O.A.No.9289 of 2002. First, it is to be seen that whether the embargo placed under Rule 9(2)(b)(ii) of the Rules will come in the way of the respondents for initiation of action against the petitioner. The said rule reads as under. Rule 9(2)(b)(ii) of the Rules reads as under: “(2)(b) The Departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his 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.” There is no dispute about the fact that the petitioner retired from service as Deputy Collector on 31.07.1997 on attaining the age of superannuation. The charge memo dt.30.7.1997 was admittedly served on him on 31.07.1997 i.e., on the date of his retirement. In view of the fact that the Departmental proceedings were instituted against the petitioner while he was in service, the contention of the petitioner that no action can be initiated against the petitioner for the alleged irregularities committed in 1989, cannot be sustained. In the decision relied on by the learned counsel for the petitioner in D.V. Kapoor’s case (supra) it was held that the exercise of power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge and in the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment. But, the facts in the case on hand are altogether different. In the present case, the enquiry officer in his report dt.09.03.2002 clearly held that the charges are proved and after careful examination of the matter the firsts respondent imposed the punishment of cut in pension. Therefore the decision relied on by the learned counsel for the petitioner has no application to the case on hand. With regard to the next contention of the petitioner that in case of one A. Gurudayal, a retired Deputy Collector, against whom an identical charge as in charge No.2 referred to above was levelled, disciplinary proceedings were dropped is concerned, in view of the categorical assertion of the respondents in their counter affidavit that charges levelled against the petitioner are independent and disciplinary action has been initiated against the petitioner basing on the gravity of the irregularities committed by the petitioner, the said contention cannot be sustained. Merely because disciplinary proceedings were dropped against an officer, in respect of a similar charge, that cannot be a ground to drop the proceedings initiated against the petitioner. The Tribunal has also considered the matter in detail including the decision relied on by the learned counsel for the petitioner in D.V. Kapoor’s case (supra) and rightly dismissed the O.A. by observing that this is not a case to interfere with the order of punishment. We do not find any reason to interfere with the impugned order. Having regard to the facts and circumstances of the case and having perused the material on record, we are of the view that the punishment imposed against the petitioner is just and proper and needs no interference. For the above reasons, the Writ Petition is liable to be dismissed and is accordingly dismissed. No costs. _____________________ (GHULAM MOHAMMED,J) ________________ (G.CHANDRAIAH,J) 21st July 2010 RRB [1] AIR 1990 SC 1923