IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SIXTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION No: 7188 of 2010 Between: R.Surya Prakasha Rao ..... PETITIONER(S) AND Government of Andhra Pradesh, rep. by its Principal Secretary to Government, Roads and Buildings Department, J Block, 5th Floor, A.P. Secretariat, Hyderabad and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION No: 7188 of 2010 ORDER: (per HON'BLE SRI JUSTICE GHULAM MOHAMMED) This writ petition is filed seeking to quash the order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A.No.1043 of 2009 dated 02.02.2010 as illegal and arbitrary. 2. The facts, in brief, of the case are as follows: The petitioner had worked as an Assistant Executive Engineer in Roads and Buildings Department. While he was working in the National High Way Investigation Division, Visakhapatnam, on the ground of unauthorized absence from 01.05.1992 to 23.05.1996, the respondents initiated disciplinary proceedings against him under Rule-20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereinafter referred to as – ‘the Rules’), and, consequently, by order of the Government in G.O.Ms.No.9 Transport, Roads and Buildings (S.I) Department, dated 29.01.2004, dismissed him from service with effect from 01.05.1992. Aggrieved thereby, the petitioner filed O.A.No.2914 of 2004 before the Tribunal and, by order dated 21.02.2006, the Tribunal set aside the G.O.Ms.No.9 dated 29.01.2004 on technical grounds giving liberty to the respondents to proceed against the petitioner for the alleged misconduct in accordance with the provisions of the Rules and directed the period of absence to be treated in accordance with the rules. Aggrieved thereby, the respondents filed W.P.No.2011 of 2007 and the same was dismissed by order of this Court dated 10.07.2008 upholding the decision of the Tribunal. Meanwhile, in December 2007, the petitioner retired from service. The respondents issued G.O.Rt.No.1742 Transport Roads & Buildings (Ser.II) Department dated 04.12.2008 appointing an inquiry officer to inquire into the charges framed against the petitioner. The petitioner filed O.A.No.1043 of 2009 before the Tribunal challenging the said G.O. on the ground that the alleged misconduct relates to the years 1992 to 1996 and in as much as by the date of issuance of such G.O. he stood retired from service the respondents cannot again conduct inquiry after a long time in a stale allegation. In the said O.A., the respondents contended that the impugned G.O. was issued in furtherance of the earlier directions given by the Tribunal and so the same is not illegal. The Tribunal dismissed the said O.A. holding that the action of the respondents is in accordance with the earlier orders passed by it as confirmed by the High Court. Questioning the same, the present Writ Petition is filed seeking to quash the order of the Tribunal in O.A.No.1043 of 2009 dated 02.02.2010 on the ground that his retirement in 2007 detached the contractual obligations of Master and Servant between the respondents and him; in as much as he had retired from service, the respondents cannot have the authority to conduct second inquiry against him; and, in any event, the punishment imposed on him is highly unjustifiable. 3. The learned counsel for the petitioner contended that conducting a second inquiry after lapse of 18 years is nothing but to shield the ineffective functioning of the respondents for not taking timely action as per the Rules and since the petitioner has retired from service, holding a second inquiry not contemplated by the Rules is illegal. In support of his contention the learned counsel placed reliance on STATE OF ASSAM vs. J.N.ROY BISWAS[1]. 4. The learned Government Pleader for Services contended that the charge framed against the petitioner is much prior to his retirement and since earlier, the Tribunal, on noticing the procedural flaw, had set aside the inquiry conducted against him giving liberty to conduct an inquiry afresh in accordance with the Rules and the same was upheld by this Court and so conducting of inquiry afresh amounts to only continuation of proceedings but not a second inquiry and so the same is not illegal and his retirement in the interregnum is not a bar to conduct inquiry afresh. 5. The contention of the learned counsel for the petitioner that in as much as the petitioner stood retired from service the respondents cannot now initiate a second inquiry in a stale allegation and so the action of the respondents in issuing G.O.Rt.No.1742 dated 04.12.2008 is illegal, does not merit acceptance. In fact, the charge against the petitioner was framed even before his retirement and on completion of the departmental proceedings he was dismissed from service, but the Tribunal has set aside the same on technical grounds giving liberty to the respondents to proceed against the petitioner for the alleged misconduct in accordance with the Rules. Here it is pertinent to look into Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980, which reads as under: “The departmental proceedings referred to in sub-rule (1), 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 this rule 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.” In view of Rule 9(2)(a) extracted above, the proceedings proposed to be initiated against the petitioner under G.O.Rt.No.1742 dated 04.12.2008, as per the orders of the Tribunal, shall be deemed to be proceedings under the Rules which shall be continued and concluded by the authority as if he had continued in service and his retirement in the interregnum is not a bar to continue the proceedings. Therefore, issuance of G.O.Rt.No.1742 dated 04.12.2008 is not illegal. 6. Moreover, the judgment of the Apex Court in J.N.ROY BISWAS case (1 supra) relied on by the learned counsel for the petitioner goes against his case. The relevant portion reads as hereunder: “3. ……… No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the disciplinary authority after the delinquent had once been absolved. ……… 4. We may however make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first inquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; ………” It is clear from the above extract that the proceedings in question cannot be understood as a second inquiry, but shall be deemed to be proceedings of a continuous nature. 7. In view of the facts and circumstances of the case, the writ petition fails and the same is dismissed. However, in the circumstances of the case, without costs. ___________________________ GHULAM MOHAMMED, J. _________________________ G.BHAVANI PRASAD, J. 6th April 2010 CVRK [1] (1976) 1 SUPREME COURT CASES 234