* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.21597 of 2011 % 30.8.2011 # K.Venkateswara Rao, S/o.Laxmaiah ... Petitioner VERSUS $ State of Andhra Pradesh represented by its Chief Secretary to Government, Secretariat Buildings, Hyderabad And others ... Respondent < GIST: > HEAD NOTE: ! Counsel for Petitioner: Mr.P.V.Krishnaiah ^Counsel for Respondents: The Government Pleader for Services-II ? Cases referred 1) AIR 1967 SC 1386 2) (1992) 3 SCC 1 : AIR 1992 SC 1439 3) (1997) 5 SCC 772 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.21597 of 2011 August 30, 2011 Between: K.Venkateswara Rao, S/o.Laxmaiah ... Petitioners And State of Andhra Pradesh represented by its Chief Secretary to Government, Secretariat Buildings, Hyderabad And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.21597 of 2011 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The petitioner while working as Tahsildar of Kothapatnam in Prakasam District, on a request made by Peram Ramu, the Sarpanch of Alluru Gram Panchayat, furnished certain information about the alienation of land admeasuring Acs.20.55 in Alluru Village in favour of Ongole Municipality for establishing dumping of transit point. It appears the said Ramu filed W.P.No.32702 of 2010 assailing the proceedings of the District Collector alienating the land to Ongole Municipality. In that writ petition, he had relied on the information furnished by the petitioner. For the reason that after gathering the information from the Village Revenue Officer and Surveyor, the petitioner furnished information to Ramu under the provisions of the Right to Information Act, 2005 (the RTI Act), he was ordered to be placed under suspension by proceedings dated 05.4.2011 of the District Collector. Curiously the said order nowhere mentions about any negligent conduct or malfeasance or misfeasance or financial abuse on the part of the petitioner. Be that as it may, being aggrieved by the order of suspension dated 05.4.2011, the petitioner filed O.A.No.3061 of 2011 in May, 2011. The learned Tribunal appears to have directed the Government Pleader to obtain instructions. Subsequently on 18.5.2011, the learned Tribunal passed the following order. Admit. Issue notice to the respondents, returnable in four weeks. As the applicant furnished information under the provisions of the Right to Information Act, being the concerned officer, which was not liked by his superior authorities, he is kept under suspension. In these circumstances, as there is no misappropriation or misuse of the funds, the impugned proceedings Rc.No.A1/811/2011, dated 05.4.2011 issued by the 1st respondent, keeping the applicant under suspension, is suspended, and the respondents are directed to reinstate the applicant into service as Tahsildar, Kothapatnam, Prakasam District, immediately. The said order was not implemented. The petitioner was not reinstated in spite of clear direction by the learned Tribunal. Therefore, the petitioner filed the instant writ petition for directions to the Government of Andhra Pradesh to take appropriate action against the fourth respondent for not implementing the orders of the learned Tribunal passed on 18.5.2011; for immediate reinstatement of the petitioner; and for payment of salary from May, 2011 onwards. This writ petition was filed on 27.7.2011. The same was listed before this Bench on 01.8.2011. By that time, the petitioner was superannuated on 31.7.2011. However, having regard to the prayer and allegations of negligence and abdication of duties on the part of the District Collector, we directed the District Collector to file affidavit. The District Collector filed affidavit stating that the copy of the order dated 18.5.2011 of the Tribunal was received by him on 21.5.2011 along with the representation of the petitioner; and an application for vacating the ex parte order being VMA No.1047 of 2011 was filed on 29.5.2011, which is pending. Though the Collector also refers to the background of the case including the allotment/alienation of land to Ongole Municipality for establishing dumping of transit point, it is not necessary for the purpose of this case to refer to the same. Except stating that a vacate stay application was moved, nothing substantial in justification of non-implementation of the order of the Tribunal is averred in the counter affidavit. This Court heard the Counsel for the petitioner and the Government Pleader for Services-II. In paragraph-9 of the affidavit accompanying the writ petition, the petitioner made an allegation that the fourth respondent – the District Collector – abdicated his functions to the sixth respondent i.e., the Hon’ble Minister of Municipal Administration, and was bent upon not implementing the orders of the Tribunal. It would be indeed most sorry state of affairs, if District Magistrates and Collectors discharge their enormous powers under various statutes, to the dictates of the elected representatives even if they are Ministers. The requirement of acting impartially is as much necessary in the case of administrative functionaries as in the case of judicial officers, “Justice should not only be done but seen to have been done”, is an edict which applies even to administrative authorities exercising quasi-judicial functions. Any disciplinary proceeding – there is no gainsaying – is a quasi-judicial. The petitioner was suspended on an allegation that he supplied the material under the RTI Act. Whether or not such an order is justified is not the subject matter here. When the learned Tribunal gave direction to reinstate the petitioner, the order was not complied with in spite of the petitioner approaching with a copy of the order. Though we may - for want of evidence; not record a clear finding with regard to allegation in paragraph-9 of the writ affidavit referred herein above, we are certainly compelled to conclude that ‘there is something which does not meet the eye’ in the whole episode in which the petitioner appears to have been made an unwilling victim. For the lapses on the part of the district collectorate, the order passed by the Tribunal cannot be rendered a cipher. There is no dispute that the petitioner retired on 31.7.2011. In respect of an event which took place prior to retirement of a Government employee can there be a disciplinary enquiry? Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980 (the Rules) contemplates that the departmental proceedings 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 Rule 9 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. For any act of misfeasance or malfeasance done by a Government servant, if the departmental proceedings were not instituted while he was in service, under Rule 9(2)(b) necessary authorization shall be obtained from the Government, to initiate such proceedings after his retirement. Rule 9(6)(a) of the Rules is to the effect that 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 of suspension. This is relevant and has same significance in this case. There is conceptual difference between the order of suspension and the order of stay granted by a competent Court or Tribunal exercising appellate/review jurisdiction. When an order of suspension is passed, temporarily the order is wiped out and does not exist in the eye of law. If the order of suspension is interlocutory in nature, its survival depends on the final adjudication. If such order is reversed or set aside, it would be ineffective from the date when it was suspended as an interim measure. In case the adjudication is one of confirmation, the order which is suspended, though inoperative during the period of operation of the order of suspension passed by the Court, would stand revived only from the date of the final order of the Court affirming the same. The order of stay only means the order which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the order has been wiped out from existence. An order of stay granted pending disposal of a writ petition or other proceeding, comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court (Mulraj v Murti Raghunathji[1], Shree Chamundi Mopeds Ltd v Church of South India Trust Assn[2] and Kanoria Chemicals and Industries Ltd. v U.P. State Electricity Board[3]). If the order of suspension impugned before the Tribunal, which was suspended by it, is treated as non-existent as on the date of 31.7.2011 by reason of the interim order of suspension passed by the Tribunal, then the disciplinary authority is required to obtain sanction of the Government under Rule 9(2)(b) of the Rules. In that view of the matter, we are not able to countenance the submission of the learned Government Pleader that the O.A. itself has become infructuous. In this case, the Tribunal has suspended the order on 18.5.2011. Hence it does not exist as on 31.7.2011 when the petitioner retired. Therefore, if any disciplinary action has to be taken necessarily the District Collector has to obtain prior sanction of the Government under Rule 9(2)(b) of the Rules. Keeping these aspects in view, we dispose of the writ petition in the following manner. 1) The petitioner shall be paid the entire salary upto 31.7.2011 because even the paragraph 8 of the order of suspension dated 05.4.2011 to the effect that the petitioner shall be entitled to for payment of subsistence allowance under Fundamental Rule 53(1)(ii)(a) shall be deemed to have been suspended; 2) The Government may issue necessary instructions to all the Head of the Departments and moffussil officers to implement all the orders passed by the Tribunals/Courts; 3) The Tribunal may dispose of the O.A. expeditiously in the light of the above observations. The writ petition, with the above observations and directions, is accordingly disposed of. No costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) August 30, 2011 NOTE: L.R. Copy be marked. (By order) YS [1] AIR 1967 SC 1386 [2] (1992) 3 SCC 1 : AIR 1992 SC 1439 [3] (1997) 5 SCC 772