IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 27665 of 2007 Between: Municipal Corporation of Guntur, Rep. by its Commissioner, Guntur. ..... PETITIONER AND 1 Smt. B. Syamala Kumari, Muncipal Corporation of Guntur, Guntur District. 2 The Government of Andhra Pradesh, Rep. by its Secretary Municipal Corporation of Urban Development Department, Secretariat, Hyderabad. 3 The Government of Andhra Pradesh, Rep. by its Secretary General Administration Department, (Ser.C) Department, Secretariat, Hyderabad. .....RESPONDENTS 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 in the nature of Certiorari calling for the records relating to the order dated 12-9-2007 in O.A.No 7442 of 2006 passed by the A.P. Administrative Tribunal, Hyderabad, as unjust and improper and deemed fit as erroneous and quash the same and pass Counsel for the Petitioner:MR.B.VENKATARATNAM Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following ORDER: THE HON’BLE MR. JUSTICE D.S.R.VARMA AND THE HON’BLE MR. JUSTICE K.C.BHANU WRIT PETITION NO.27665 OF 2007 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned Standing Counsel appearing for the petitioner, the learned counsel appearing for the respondent No.1 and the learned counsel appearing for the respondent Nos.2 and 3. 2. This Writ of Certiorari is filed, under Article 226 of the Constitution of India, seeking to quash the order, dated 12.09.2007, passed by the Andhra Pradesh Administrative Tribunal (for brevity “the Tribunal”), in O.A.No.7442 of 2006, by declaring it as unjust and improper. 3. Petitioner is respondent No.1, respondent No.1 is the applicant and respondent Nos.2 and 3 are respondent Nos.2 and 3, in the O.P., before the Tribunal. 4. For the sake of convenience, in this order, the petitioner, respondent No.1 and respondent Nos.2 and 3 will be referred to as “the Corporation”, “the applicant”, and “the Government”, respectively. 5. The facts of the case, in brief, are that the applicant, while working as Junior Assistant in the Corporation, was trapped by the Anti Corruption Bureau (for brevity “ACB”) authorities on 08.11.1999; that, subsequently, she was placed under suspension and was prosecuted before the Special Judge for SPE and ACB cases, Vijayawada, Krishna district in C.C.No.40 of 2000 and, by judgment, dated 04.03.2006, she was convicted and sentenced to undergo imprisonment for one year and to pay a fine of Rs.1000/- and that against the said conviction, the applicant had preferred an appeal Criminal Appeal No.390 of 2006 and this Court, by order, in interlocutory application, dated 20.03.2006, suspended the sentence only. Meanwhile, the Government, by Memo No.2935/Vig.IV-2/2001-3, dated 18.03.2006, directed the Corporation to dismiss the applicant from service by quoting G.O.Ms.No.2, General Administration (Ser.C) Department, dated 04.01.1999. The applicant had challenged the same by filing O.A.No.2414 of 2006 before the Tribunal. In the said O.A., an interim order was granted directing the Corporation not to dismiss the applicant from service. Against the said order, the Corporation has preferred W.P.No.13421 of 2006 and Batch, which was allowed by a Division Bench of this Court, (Hon’ble Sri Justice B.Prakash Rao and Hon’ble Sri Justice Ramesh Ranganathan), by a common order, dated 27.09.2006, setting aside the interim order, passed by the Tribunal. Following the common order, dated 27.09.2006, in W.P.No.13421 of 2006 and Batch, the Corporation has issued proceedings in Roc.No.14332/1999/C1, dated 29.09.2006, dismissing the applicant from service. Aggrieved thereby, the applicant had filed O.A.No.7442 of 2006, which was allowed by the Tribunal, by order, dated 12.09.2007, setting aside the proceedings, dated 29.09.2007. Challenging the same, the Corporation has filed the present writ petition. 6. The learned Standing Counsel appearing for the Corporation submits that the Government, which is the competent and superior authority over the Corporation, has issued directions as per the rules and in accordance with law for dismissal of the applicant from service; that there is no necessity to conduct an enquiry, as it is a clear case of moral turpitude and that an employee on being convicted in a criminal case, is automatically liable to be dismissed from service and mere suspension of the sentence, pending criminal appeal, would neither entitle him to be continued in service nor to be placed under suspension. He further submits that on conviction of an employee in a criminal case, he/she is deemed to be under suspension under Rule 8 (2) (b) only till the order of dismissal is passed, and that no employee is entitled to contend that he/she should be continued under suspension till the disposal of the criminal appeal or that he/she should not be dismissed from service till then. He also submits that the Division Bench of this Court, in W.P.Nos.13421 of 2006 and Batch, in which, the applicant is also one of the petitioners in the said batch, and also another Division Bench of this Court in W.P.No.1961 of 2008 (to which we are members), had exhaustively discussed the similar issue and held that dismissal of an employee from service on the ground of conduct, which led to conviction on a criminal charge, does not call for any interference. 7. Sri P.V.Ramana, the learned Counsel appearing for the applicant submits that mere conviction in a criminal case would not justify automatic dismissal from service of a government servant. He further submits that interference by issuing instructions or suggestions or directions to the disciplinary authority by the higher authorities for taking action in a particular manner is nothing but usurpation of the powers of the disciplinary authority and the same is impermissible under law. In support of his contentions, he placed reliance on the judgments of the apex Court i n B.RAJAGOPALA NAIDU vs. THE STATE TRANSPORT APPELLATE TRIBUNAL [1] , and, ORIENT PAPER MILLS LTD vs. UNION OF INDIA[2] . 8. All these contentions raised by the learned Counsel appearing for both the parties had already been considered by the Division Bench of this Court in W.P.No.13421 of 2006 and Batch, by a common order, dated 27.09.2006, and another Division Bench, by order, dated 12.02.2008, in W.P.No.1961 of 2008, in detail. 9. Notwithstanding the rule position contemplated under the Rules, the Tribunal has allowed the O.A., placing reliance on the order of another Division Bench of this Court (Hon’ble Smt. Justice T.Meena Kumari and Hon’ble Sri Justice G.Chandraiah), dated 07.08.2007, in W.P.No.16102 of 2007, whereunder and whereby, in similar circumstances, the order of dismissal was set aside, on the ground that the same is hit by the principle of sub judice. 10. The said order, dated 07.08.2007, of the Division Bench of this Court, in W.P.No.16102 of 2007, was placed before us, from which we could see that reliance was placed on Rule 25 of the Rules. 11. For the sake of convenience and ready reference, it is apt to extract Rule 25 of the Rules, which is thus: “Rule 25. Special procedure in certain cases:--Notwithstanding anything contained in Rule 20 to Rule 24— (i) where penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders as it deems fit: Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule. [Provided further that no such consultation with the Commission is necessary before any orders are made under clause (i)of this rule.]” 12. Sub-rules (ii) and (iii) of Rule 25 of the Rules deal with the circumstances where the enquiry is reasonably found to be impracticable or in the interest of the security of the State, it is not expedient to hold any enquiry. But, as per sub-rule (i), the disciplinary authority, notwithstanding anything contained in Rules 20 to 24 of the Rules, can consider the over all circumstances of the case and make appropriate orders as deems fit. 13. From the above, it is obvious that the disciplinary authority, depending upon the facts and circumstances mentioned in sub-rules (i), (ii) and (iii) of Rule 25 of the Rules, can exercise its discretionary jurisdiction to some extent and pass appropriate orders. The expression “appropriate orders” would include imposition of penalty, without conducting any enquiry. Basing on the said rule position, it was further held, in W.P.No.16102 of 2007, as under: “Thus, the above provisions makes it clear that in case of conviction in a criminal proceedings, the disciplinary authority may consider the circumstances of the case and make such orders as it deems fit. But, at this juncture, it is not out of place to mention that on the conviction and sentence imposed against the applicant by the A.C.B., Court, the applicant has preferred an appeal before this Court in Crl.A.371 of 2007 wherein the sentence imposed by the A.C.B., Court has been suspended and the said appeal is pending adjudication. At this stage, the G.O., in question has been issued by the 1st respondent dismissing the applicant. In this regard, it needless to observe that in view of the pendency of the criminal appeal as well as the suspension of the sentence imposed by the A.C.B., Court, the judgment passed by the A.C.B., Court has not become final. Therefore, passing of G.O.Ms.No.91, at this stage, amounts to violation of the special procedure as laid down under Rule 25 of the Rules and thereby, the same is hit by the principle of subjudice.” 14. In the order, dated 27.09.2006, rendered by another Division Bench of this Court in W.P.No.13421 of 2006 and batch, in which, the entire gamut of the controversy on the present issue was discussed, including the effect of suspension of sentence by the appellate Court, it was held as under: “……While the damage suffered by the delinquent government servant can be adequately compensated later, when final orders are passed setting aside an illegal order of dismissal, an interim order, pending disposal of the O.A., directing that such a government servant be continued in service would seriously impair the integrity and efficiency of Public Service and demoralize other honest government servants. The incalculable harm which such orders can cause, if eventually the O.A. was to be dismissed, cannot be over-emphasized. The Tribunal must exercise caution while passing interlocutory orders of this nature.” 15. The said Division Bench further discussed the aspect of Rule 25 (i) of the Rules and as per the observations of the said Division Bench the expression “conduct” has different connotations, depending upon the facts and circumstances of each case. Any conduct can be brought into the fold of sub-rule (i) of Rule 25 of the Rules, for the purpose of imposing punishment, without conducting any enquiry. However, the punishment shall commensurate with the gravity of misconduct. 16. The said Division Bench, while relying on a judgment of the apex Court in MANAGING DIRECTOR ECIL, HYDERABAD vs. B.KARUNAKAR[3], illustratively pointed out that if somebody is imposed with some penalty for traffic violation, such imposition of penalty, though can be brought into the fold of the expression “conduct”, as referred to under Article 311 (2) of the Constitution of India as well as Rule 25 (i) of the Rules, a simple punishment can be imposed, basing on the alleged misconduct. In other words, it need not necessarily result in dismissal of service in all cases where an employee has been convicted. 17. It was further pointed out by the said Division Bench that Rule 20 (1) of the Rules prohibits imposition of penalties, specified in clauses (vi) to (x) of Rule 9 of the Rules, except after an enquiry is held in the manner specified under Rules 20 and 21 of the Rules. 18. Though the learned Government Pleader for Services-I submits that in view of the proviso to sub-rule (x) of Rule 9 of the Rules, the incumbent has to be necessarily dismissed from service, it is to be remembered that in the light of the observations made by the Division Bench of this Court, in W.P.No.13421 of 2006 and batch, dated 27.09.2006, such a conclusion can be arrived at only after the enquiry is conducted by the Department, as contemplated under Rules 20 and 21 of the Rules. 19. Therefore, the above submission of the learned Government Pleader for Services-I cannot be sustained. In fact, as per Rule 25 of the Rules, the disciplinary authority has got wider scope and discretionary jurisdiction to impose the punishment or not, including the quantum of punishment. This situation has been made clear in the judgment of the apex Court, as was observed by the Division Bench, in the above said batch of writ petitions, in K.C. SAREEN vs. C.B.I., CHANDIGARH[4]. 20. However, a word of caution has been added by the said Division Bench, following the observations made by the apex Court in DY. DIRECTOR OF COLLEGIATE EDUCATION (ADMN.) vs. S. NAGOOR MEERA[5], to the effect that the power conferred under Rule 25 (i) of the Rules has to be exercised fairly, justly and reasonably. In other words, the disciplinary authority has to necessarily take into account the entire conduct of the delinquent officer and the gravity of the misconduct and also as to whether such misconduct would have any impact on the administration. 21. In this context, we feel it apposite to extract the observations made by the Division Bench in W.P.No.13421 of 2006 and batch, dated 27.09.2006, while dealing with the scope of Rules 25 and 25 (i) of the Rules, which are as under: “Under the 1st proviso to Rule 9 of the A.P.C.S. (C.C. & A) Rules, 1991, in every case in which the charge of acceptance from any person of any gratification, other than the legal remuneration, as a motive or reward for providing or forbearing to provide any official acts, is established the penalty of removal or dismissal is required to be imposed. Under Rule 20 (1) all major penalties, including the punishment of removal or dismissal under Rule 9, can only be imposed after an enquiry is held. The first proviso to Rule 9 was substituted by G.O.Ms.No.205, dated 05-06-1998. The very fact that such a proviso was inserted in Rule 9, and not in Rule 25, can only mean that the discretion conferred on the disciplinary authority under Rule 25 (i), to consider the facts and circumstances of the case and make such orders thereon as it deems fit, is not circumscribed by the limitation prescribed under the first proviso to Rule 9.” 22. Therefore, the law is well settled that mere suspension of sentence shall not necessarily lead to any kind of penalty as enumerated under clauses (vi) to (x) of Rule 9 of the Rules. Of course, in Service Law Jurisprudence, it has been reiterated that the suspension of conviction and sentence together is totally alien to the Service jurisdiction. But, it was made very clear that such jurisdiction of suspending the conviction shall be in rarest or exceptional cases, depending upon the facts and circumstances of each case. But, the suspension of sentence, by itself, does not confer any right to interfere with any penalty imposed by the disciplinary authority, exercising its jurisdiction under Rule 25 (i) of the Rules. 23. In the present case, it is on record that the applicant was charge sheeted for receiving illegal gratification and the conviction, imposed by the trial Court, in the criminal case registered against her, is not suspended. So long as the conviction is not suspended, the same shall be deemed to be in operation and the effect of the said conviction does not cease. 24. From the above facts and circumstances, particularly keeping in view the nature of charges levelled against the applicant and the consequential conviction and sentence, recorded by the trial Court, inasmuch as, only the sentence has been suspended by this Court, we are of the view that the order of dismissal of the applicant from service, passed by the disciplinary authority, exercising the jurisdiction under Rule 25 (i) of the Rules, does not warrant any interference by this Court. 25. From the order, dated 07.08.2007, in W.P.No.16102 of 2007, we could see the observations of the Division Bench, the relevant portion of which is extracted hereunder: “……So the respondents have power to keep the public servant out of service after the conviction till the conviction became final to pass appropriate orders in accordance with Rule 25 of the A.P.C.S. (CC&A) Rules viz., after the conviction becomes final, the orders can be passed under Rule 25 of A.P.C.S. (CC&A) Rules. Till then, it is always open for them to exercise powers under Rule 8 (2)(b) of the A.P.C.S. (CC&A) Rules, 1991 to keep the convicted Government servant out of service or employment, pending finalisation or confirmation of the conviction by the appellate/revisional courts and passing orders under Rule 25 of A.P.C.S. (CC&A) Rules, 1991.” 26. The above observations of the said Division Bench appear to be contrary to the settled legal proposition laid down by the apex Court. 27. From a perusal of the order of the Division Bench, dated 07.08.2007, in W.P.No.16102 of 2007, relied upon by the Tribunal, it is obvious that none of the judgments of the apex Court as well as another Division Bench of this Court in W.P.No.13421 of 2006 and batch, dated 27.09.2006, were brought to the notice of the said Division Bench. We are of the view that had the observations and the judgments of the apex Court, including the judgment in SAREEN’s case (4 supra), been brought to the notice of the said Division Bench of this Court, we are of the view that the judgment of the said Division Bench would have been otherwise. 28. However, in the present case, though the common order of the Division Bench of this Court, in W.P.No.13421 of 2006 and Batch, and the judgments of the apex Court, referred to supra, were brought to the notice of the Tribunal, no reasons have been assigned by the Tribunal, in the order impugned, in not applying the principle laid down in those judgments. On the other hand, it only made a reference, in the impugned order, and set aside the dismissal order holding that they are hit by the principle of sub judice in view of the order in W.P.No.16102 of 2007, passed by the Division Bench of this Court. 29. The learned Counsel appearing for the applicant submits that notwithstanding the legal position, the order of dismissal, which was impugned before the Tribunal, was passed by the disciplinary authority, at the instance of the Government. In other words, it is his contention that upon the direction issued by the Government, the disciplinary authority, without proper application of mind, has passed the dismissal order. 30. At the outset, the said submission of the learned Counsel appearing for the applicant cannot be sustained, inasmuch as, Rule 12 of the APCS (CC & A) Rules contemplates that the Government, which is the superior authority, has power to pass orders. 31. Here, it is an admitted case that the Government has directed the disciplinary authority to pass the order of dismissal against the applicant. On such order, it is implied that it is an order originated from the Government, more so, an order passed by the Government itself, and, the disciplinary authority simply followed the direction of the Government. Therefore, it should be understood that as if the Government has passed the order of dismissal, but not the disciplinary authority. In such a case, the question of application of mind by the disciplinary authority does not arise. 32. Though the learned Counsel appearing for the applicant has placed reliance on various judgments of the apex Court, referred to supra, to substantiate his contention that the jurisdiction of the disciplinary authority cannot be usurped by the Government, but, those judgments were to the effect that the Government cannot pass orders directing the disciplinary authority to comply its directions. 33. It is to be noted that Rule 12 of the said Rules provides that the Government can pass orders. But, in the instant case, the Government instead of passing orders directly, it directed the disciplinary authority to pass the dismissal order. That does not mean that the Government has usurped the jurisdiction of the disciplinary authority. 34. We are of the further view that the observations of the Tribunal are totally in conflict with the clear intent of Rule 25 (i) of the Rules and the object thereof. Therefore, we are of the firm view that the Tribunal had totally misread the scope of Rule 25 (i) of the Rules, while making the above observations, contrary to the principles laid down by the apex Court in SAREEN’s case (4 supra). 35. Therefore, following the judgments of the apex Court in SAREEN’s case (4 supra) and NAGOOR MEERA’s case (5 supra), since the same are binding on this Court, the impugned order is liable to be set aside. 36. In the result, the writ petition is allowed, at the stage of admission, setting aside the order, dated 12.09.2007, passed by the Tribunal, in O.A.No.7442 of 2007. However, there shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA ______________________ JUSTICE K.C.BHANU 29TH FEBRUARY 2008 MSNR [1] AIR 1964 SC 1573 [2] AIR 1970 SC 1498 [3] 1993 (4) SCC 727 [4] 2001 AIR SCW 3339 [5] AIR 1995 SC 1364