THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.25392 of 2011 September 13, 2011 Between: The Government of Andhra Pradesh, represented by Secretary to Government, Irrigation and CAD Department, Secretariat, Hyderabad And another ... Petitioners And N.Viswanatham, S/o.N.Peraiah And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.25392 of 2011 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The Government of Andhra Pradesh in Irrigation and CAD Department and their Engineering-in-Chief (AW) filed the instant writ petition aggrieved by the order dated 15.3.2011 in O.A. No.3512 of 2008 passed by the Andhra Pradesh Administrative Tribunal. By the said order, the learned Tribunal, while confirming the finding of guilt of the charge recorded by the Government, modified the punishment reducing 100% cut in pension to 50% cut. The brief fact of the matter, to the extent necessary, is that the first respondent (hereafter called, the applicant) joined the Irrigation department in as Junior Engineer in 1975. For the period from 1980 till 15.11.1996 statedly he was on leave. His absence was reported by E-in-C to the Government, who ordered enquiry. The enquiry resulted in the punishment of stoppage of one increment with cumulative effect for the misconduct under Rule 9 of the Andhra Pradesh Civil Services (Classification, Control & Appeal) Rules, 1991 (the Rules) besides treating the period of unauthorized absence as “Dies-Non” under Fundamental Rule 18. Yet another enquiry was initiated into the following charges on 22.5.2004. Charge No.1 You have been involved in running private companies and acted as Managing Director of M/s.Thirumala Vinyl Products Private Limited located in Thirumalapur Village of Mahabubnagar District while workingin the Department and thus violated Rule 5.2.1 of A.P.C.S. (Conduct) Rules, 1964. Charge No.2 You have neither informed the concerned authorities of your association nor obtained any prior permission for running private companies. You have obtained huge loans from various financial institutions for removing the company and thus violated Rules 5.2.2, Rule 8 of A.P.C.S. (Conduct) Rules, 1964. Charge No.3 You have made several financial transactions and required and disposed of several assets while in service which amounts to misconduct and violated Rule 5.2.5 & Rule 9 of A.P.C.S. (Conduct) Rules, 1964. Charge No.4 You have been associated with M/s.Srinivasa Industries, Chandrayanagutta, Hyderabad and actively engaged in private trade business and investment. The Enquiry Officer submitted report on 23.5.2005 following necessary procedure under Rule 20 of the Rules. A final show cause notice was issued proposing dismissal of the applicant from service. In his explanation he prayed for lenient view. The advice of the Andhra Pradesh Public Service Commission was obtained and having regard to the fact that the applicant retired on 31.3.2007 after attaining the age of superannuation, the Government vide their orders being G.O.Ms.No.9, dated 31.1.2008 decided to impose penalty of 100% cut in pension and gratuity in stead of dismissal from service. In the O.A. filed assailing the G.O., inter alia it was contended that after imposing the punishment of stoppage of one increment, second disciplinary enquiry is not permissible; there is inordinate delay in initiating second disciplinary enquiry; the procedure under the Rules was not followed and that there was no evidence before the enquiry officer to record finding of guilt. The learned Tribunal rejected the contention that the plea of second enquiry into the same charges observing that the allegations in the first charge memo are entirely different from the second charge memo and that there was proper enquiry. The learned Tribunal also did not find it necessary to disagree with the finding that the applicant was running a private company and acted as Managing Director in violation of Rule 8 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964. Considering the plea of disproportionate punishment, the learned Tribunal exercised its discretion and came to the conclusion that, “the ends of justice would be met if the punishment of 100% cut in pension is reduced to 50% cut in pension”. The Government Pleader for Services-II submits that the exercise of discretion by the Tribunal is not proper. According to him, having agreed with the findings of Enquiry Officer holding that the charges are proved, the learned Tribunal ought not to have interfered with the punishment. It is well settled that the punishment imposed by the competent authority pursuant to the disciplinary proceedings ordinarily cannot be interfered with. But if the punishment imposed is disproportionate to the charge or indictment that it shocks the conscience of the Court, it is not precluded from interfering with the punishment and modify the same. There is no universal formula to decide which punishment is disproportionate and which punishment shocks the conscience of the Court. It depends on facts and circumstances of each case. The gravity of the charge, the elements of moral turpitude, unbecoming conduct of public servant, the context and circumstances in which misconduct is committed are all matters which need to be considered. The important aspect which cannot be ignored is the delay in initiating, completing and giving finality to the enquiry proceedings. There is no dispute that the applicant was permitted to join service on 15.11.1996 whereafter he was promoted as Deputy Executive Engineer. The unauthorized absence from 11.11.1980 to 15.11.1996 was meted with prompt enquiry and punishment of stoppage of one increment with cumulative effect treating the period of unauthorized absence as “Dies-Non”. This happened in April, 1999. Nothing prevented the Government or E-in-C to initiate enquiry with regard to the charges framed subsequently. It was only after lapse of about eight (8) years that the articles of charges were framed on 22.5.2004 into the allegations that the applicant was engaged in the business during the unauthorized absence. This is certainly a mitigating factor, which cannot be ignored. After obtaining explanation to the show cause notice proposing punishment of dismissal, the Government did not consider this aspect of the matter. A perusal of G.O.Ms.No.9, dated 31.1.2008 would show that except referring the history of the case of the applicant, there is no application of mind at all. The learned Tribunal, on the contrary, considered the matter in detail and “with a view to meet the ends of justice”, modified the punishment. The exercise of discretion, in the background of this case, in our considered opinion, is sound and does not warrant any interference. The writ petition fails and is, accordingly, dismissed. No costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) September 13, 2011 YS