IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH 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 NOs:27470 of 2007 & 3428 of 2008 Writ Petition No. 27470 of 2007: Between: 1 The Commissioner, Panchayat Raj & Rural Employement, Urudu Hall Lane, Himayathnagar, Hyderabad. 2 The Government of Andhra Pradesh, Rep. by its Principal Secretary to the Government, Panchayat Raj & Rural Development, A.P. Secretariat, Hyderabad. ..... PETITIONERS AND M. Krishna Veni, Extension Officer PR & RD (Under Dismissal), O/o. Mandal Parishad Development Officer, SALUR, Vizianagaram District. .....RESPONDENT 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 issue a Writ, order or direction more particularly one in the nature of "Writ of Certiorari " calling for the records relating to the orders of the Hon'ble A.P. Admn. Tribunal, Hyderabad passed in O.A.No. 2350/2006 dated 7-9-2007 as being erroneous, illegal and unreasonable and quash the same and pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioners: GP FOR SERVICES II Counsel for the Respondent: Mr. K.Ram Reddy Writ Petition No : 3428 of 2008 Between: 1 The Government of Andhra Pradesh, rep. by its Special Chief Secretary, Revenue (Vigilance V) Dept, Secretariat, Hyderabad. 2. The Commissioner, Prohibition and Excise, Government of Andhra Pradesh, Nampally, Hyderabad. ..... PETITIONERS AND Sk. Khadar Babavalli, working as Prohibition & Excise Inspector, Giddalur, Prakasam district. .....RESPONDENT 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 issue a writ, order or direction more particularly one in the nature of the "Writ of Certiorari" calling for the records relating to the orders of the Hon'ble A.P. Admn. Tribunal, Hyderabad, passed in O.A.No.2857/2005 dated 19.09.2007 as being erroneous, illegal and unreasonable and quash the same and pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioners: GP FOR SERVICES II Counsel for the Respondent: MR.P.V.RAMANA The Court made the following: THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO.27470 OF 2007 AND WRIT PETITION NO.3428 OF 2008 ORAL COMMON ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned Government Pleader for Services-II, appearing for the petitioners in both the writ petitions, Mr.K.Ram Reddy, the learned counsel appearing for the respondent in W.P.No.27470 of 2007, and Mr.P.V.Ramana, the learned counsel appearing for the respondent in W.P.No.3428 of 2008. 2. Since the issue involved in both the writ petitions being same, they are being disposed of by this Common Order. 3. Both the writ of Certioraris are filed, under Article 226 of the Constitution of India, to call for the records pertaining to the orders, dated 07.09.2007 and 19.09.2007, in O.A.Nos.2350 of 2006 and O.A.NO.2857 of 2005, respectively, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for brevity ‘the Tribunal’), and set aside the same as illegal. 4. The petitioners in W.P.Nos.27470 of 2007 and 3428 of 2008 are the respondents and the respondents are the applicants in O.A.Nos.2350 of 2006 and 2857 of 2005, respectively, before the Tribunal. 5. The facts, in brief, leading to the filing of W.P.No.27470 of 2007, are as follows: The respondent, while working as Extension Officer, Panchayat Raj and Rural Development, Salur, Vizianagaram District, was implicated in a trap case by Anti Corruption Bureau (for brevity, ‘A.C.B’) authorities, and she was kept under suspension; that, subsequently, she was reinstated into service; that a case in C.C.No.71 of 2000 was registered before the Special Court for SPE & ACB Cases, Visakhapatnam, against the respondent, she was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2,000/-; that, as against the said conviction and sentence, the respondent had preferred an appeal Criminal appeal No.371 of 2006 before this Court; that, by order, dated 07.03.2006, in Crl.M.P.No.393 of 2006, in the said Criminal Appeal, this Court had suspended the sentence, imposed against the respondent, and that, thereafter, the competent authority i.e., the petitioner No.1 had passed the order in proc.No.11201/CPR &RE/E2.Vig/1999, dated 06.04.2006, dismissing the respondent from service. Challenging the said order, the respondent had approached the Tribunal by way of filing O.A. No.2350 of 2006, which was eventually allowed, by the impugned order. Hence, the present W.P.No.27470 of 2007. 6. The facts, in brief, leading to the filing of W.P.No.3428 of 2008, are as follows: The respondent, while working as Prohibition & Excise Inspector, Giddalur, Prakasam District, was implicated in a trap case by A.C.B. authorities and was kept under suspension; that, subsequently, he was reinstated into service; that a case in C.C.No.13 of 1999 was registered before the Special Court for SPE & ACB Cases, Nellore, against the respondent, he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2,000/-; that, as against the said conviction and sentence, the respondent had preferred an appeal Criminal appeal No.13 of 2005 before this Court; that, by order, dated 18.01.2005, in Crl.A.M.P.No.34 of 2005, in the said appeal, this Court had suspended the sentence, imposed against the respondent and that, thereafter, the competent authority i.e., the petitioner No.1 had passed the order, vide G.O.Ms.No.1112, Revenue (Vigilance.V) Department, dated 08.06.2005, dismissing the respondent from service. Challenging the said order, the respondent had approached the Tribunal by way of filing O.A.No.2857 of 2005, which was eventually allowed by the impugned order. Hence, the present W.P.No.3428 of 2008. 7. The learned Government Pleader for Services-II, appearing for the petitioners, submits that the impugned orders, passed by the Tribunal, are erroneous on the ground that the Tribunal had relied on a judgment of a Division Bench of this Court in W.P.No.16102 of 2007, dated 07.08.2007, contrary to the judgments rendered by the apex Court on this issue. He further submits that mere suspension of sentence, by the appellate Court, shall not debar the competent authority from imposing the punishment commensurate with the misconduct and prays to allow both the Writ Petitions. 8. This issue, in fact, is no longer res integra. Earlier, the same issue had fallen for consideration before this Division Bench, in W.P.No.1961 of 2008, wherein, basing on the judgments of the apex Court in K.C.SAREEN vs. C.B.I., CHANDIGARH[1] and also DY. DIRECTOR OF COLLEGIATE EDUCATION (ADMN.) vs. S.NAGOOR MEERA[2], this Court, order, dated 12.02.2008, it was eventually held that every misconduct cannot be brought under the fold of expression ‘conduct’, as referred to under Article 311 (2) of the Constitution of India as well as Rule 25 (i) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for brevity, ‘the Rules’). This Court also observed that the misconduct shall not necessarily result in dismissal of service in all cases where an employee had been convicted. This Court further observed that, as per Rule 25 of the Rules, the disciplinary authority (emphasis supplied) has got a wider scope and discretionary jurisdiction to impose the punishment or not, including the quantum of punishment. 9. While repelling the submission of the learned Government Pleader for Services-II, appearing for the petitioners, that the incumbent has to be necessarily dismissed from service in view of the proviso to sub-rule (x) of Rule 9 of the Rules, we further made it clear that, in MUNICIPAL CORPORATION OF GUNTUR vs. B.SYAMALA KUMARI[3], a Division Bench of this Court had already taken a view that such a conclusion regarding automatic dismissal from service, pursuant to the conviction in a criminal case, be arrived at only after the enquiry is conducted by the department, as contemplated under Rule 20 and 21 of the Rules. Therefore, basing on the gravity of the offence and keeping in view the other circumstances, this Court had allowed the writ petitions, filed by the Government and the Municipal Corporation of Guntur, setting aside the impugned orders therein, and dismissed the writ petition, filed by the private party, confirming the impugned order therein. 10. The learned counsel appearing for the respondents submits that the judgment of the apex Court in K.C.SAREEN’s case (1 supra), which was relied on by this Court in W.P.No.1961 of 2008, is contrary to the judgment of the Constitutional Bench of the apex Court in UNION OF INDIA vs. TULSIRAM PATEL[4] case. 11. In TULSIRAM PATEL’s case (3 supra), the Constitutional Bench of the apex Court upheld the view taken by the apex Court in the case of THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY vs. T.R.CHELLAPPAN[5]. 12. It is significant to note the observations made by the apex Court in T.R.CHELLAPPAN’s case (4 supra), which are thus: “.. This appears to us to be the scope and ambit of this provision. We must, however, hasten to add that we should not be understood as laying down that the last part of Rule 14 of the Rules of 1968 contains a licence to employees convicted of serious offences to insist on reinstatement. ..” 13. The above observation would imply that the delinquent employee cannot, as a matter of right, ask for reinstatement, and depending upon the facts and circumstances of the case, penalty commensurate with the irregularity or misconduct, as the case may be, can be awarded. Therefore, the view expressed by this Court, in W.P.No.1961 of 2008, is supported by the observations made by the apex Court in T.R.CHELLAPPAN’s case (4 supra). The above observations made by the apex Court and also the observations made by us, in the order, dated 12.02.2008, in W.P.No.1961 of 2008, are the direct answers to the questions raised by the learned counsel appearing for the respondents. 14. The other submission made by the learned counsel appearing for the respondents is that under Rule 25 (i) of the Rules, only the disciplinary authority can pass the order, which is impugned before the Tribunal, but not by any other authority, including the Government. Even this submission has to be rejected at the outset, in the light of Rule 12 of the Rules, which reads thus: “Government’s power to impose penalties on members of State Services:- Notwithstanding anything in Rule 11, the Government may impose any of the penalties specified in Rule 9 on members of the State Services.” 15. Further, it is settled law that any superior officer to that of the appointing authority/disciplinary authority can impose punishment. Therefore, having regard to the statutory position under Rule 12 of the Rules, this submission of the learned counsel appearing for the respondents cannot be countenanced. 16. On other aspects, we need not reiterate the observations made by us in the order, dated 12.02.2008, in W.P.No.1961 of 2008, or the observations made by another Division Bench of this Court, in B.SYAMALA KUMARI’s (3 supra), basing on the judgments of the apex Court, which have been referred to above. 17. In view of the aforesaid discussion, the impugned orders, dated 07.09.2007 and 19.09.2007, in O.A.Nos.2350 of 2006 and 2857 of 2005, respectively, passed by the Tribunal, are liable to be set aside. 18. In the result, both the Writ Petitions are allowed, setting aside the impugned orders, dated 07.09.2007 and 19.09.2007, in O.A.Nos.2350 of 2006 and 2857 of 2005, respectively, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad. However, there shall be no order as to costs. ---------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU 26TH FEBRUARY 2008 DRK Copy to: Two CD copies. [1] 2001 AIR SCW 3339 [2] AIR 1995 SC 1364 [3] 2006 (6) ALD 500 (D.B) [4] AIR 1985 Supreme Court 1416 [5] AIR 1975 Supreme Court 2216