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Supreme Court of India
K.S. RADHAKRISHNAN & DIPAK MISRA, JJ.
The Government of Andhra Pradesh & Others – Appellants
Versus
Ch. Gandhi – Respondent
Civil Appeal No. 1428 of 2013 (Arising out of S.L.P. (C) Nos. 24224-24225 of 2008)
Decided On : 19-02-2013
(1993) 3 SCC 196; (1991) 4 SCC 109; (2007) 6 SCC 704; (2007) 9 SCC 625 - Relied upon
(b) Constitution of India - Article 309 Proviso - Service Rules made thereunder - Amendment - Restrospectivity - Permissible but must be stated expressly. (Paras 21 and 22)
(2007) 6 SCC 220; (2007) 11 SCC 522 - Relied upon
(c) Interpretation of statutes - Presumption against retrospective operation of statutes - Retrospectivity, if at all, is limited to the language of the statute - Notification using the phraseology "shall be substituted" - Indicates that the amended Rule is prospective. (Paras 25 and 33)
(1994) 4 SCC 602; AIR 1988 SC 740; (1989) 3 SCC 448; (2008) 8 SCC 205; (2005) 7 SCC 396 - Relied upon
(d) Service Law - Conditions of service - Employee has no vested right in regard to the terms of his service - Service Rules under Article 309 being legislative in character, can be given retrospective effect - However, accrued rights of an employee cannot be taken away by amending the Rules (Paras 35, 38)
AIR 1967 SC 1889; AIR 1975 SC 1116; AIR 1972 SC 1487; (1984) 3 SCC 281; (1983) 2 SCC 33 - Relied upon
(e) Service Law - Penalty - Major penalty - Reduction to a lower time scale of pay - Reduction to a lower stage in the time scale of pay - Reduction in rank - All three are distinct and different from others and have different impact. (Para 41)
(1997) 6 SCC 623 - Relied upon
AIR 1967 SC 1889; AIR 1969 SC 118; (1983) 2 SCC 33; (1984) 3 SCC 281; (1985) 1 SCC 523; (1987) 3 SCC 622; 1994 Supp (1) SCC 44; (1971) 2 SCC 330; (1983) 1 SCC 305; (1991) 2 SCC 104 - Referred
(f) Service Law - Rules - Amendment of - Delinquencies and Penalties varying - Penalty as per amended Rule cannot be imposed for delinquency before amendment. (Para 43)
(1989) 3 SCC 448 - Relied upon
(g) Constitution of India - Article 20(1) - Double jeopardy - Principle of double jeopardy is not applicable to service law - A particular penalty in un-amended rule split into two in amended rules: one being harsher than the other - Even then the two parts taken together lesser than other severe penalties of compulsory retirement, removal and dismissal - Awarding of the two split penalties instead of the one un-amended penalty - Cannot be termed double jeopardy. (Para 50)
AIR 1960 SC 266; AIR 1986 SC 293; AIR 1975 SC 902 - Referred
(h) Service Law - Departmental proceeding - Penalty - Proceeding initiated for imposing major penalty - Both parts of split penalty under amended rules imposed - Not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate - It does not affect any vested or accrued right - It also does not violate any Constitutional protection. (Para 50)
Facts of the case:
1. A Senior Accountant in the Office of the Sub Treasury, Nakrekal was charged with acts of commission and omission and after enquiry was reverted in rank with stipulation that there would be postponement of future increments.
2. The O.A. was dismissed by the Administrative Tribunal.
3. The High Court held that the penalty imposed by the disciplinary authority did amount to imposition of two penalties and, accordingly, set aside the punishment and clarified that this would not preclude the authorities to pass appropriate orders pertaining to punishment keeping in view the provisions of the Rules.
Finding of the Court:
The amended Rule despite having been substituted has no retrospective effect.
An ex post facto law may be retrospective.
Result : Appeals allowed.
Judgment :-
Dipak Misra, J.
Leave granted.
2. The present appeals by special leave are directed against the judgment and order dated 14.6.2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 12177 of 2007 and the order dated 8.2.2008 passed in Review WPMP (SR) No. 126152 of 2007 arising from the said writ petition whereby the Division Bench overturned the order dated 16.5.2007 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short “the Tribunal”) in O.A. No. 923 of 2006 on the ground that the disciplinary authority had imposed two major penalties. Be it noted, the High Court granted liberty to the department to pass appropriate orders keeping in view the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short “the Rules”).
3. The facts which are imperative to be adumbrated are that a disciplinary proceeding under Rule 5 of the Rules was initiated against the respondent, a Senior Accountant in the Office of the Sub Treasury, Nakrekal, on the charges that while functioning as the senior most Accountant in the said office and in-charge of the strong room keys, at the time of surprise check by the Deputy Director, District Treasury, Nalgonda, he was absent and had not signed the attendance register in token of his having attended the office and also not maintained the movement register as required under the Rules; that he had failed to keep the currency chest book in the currency chest and not endorsed every transaction; that he had passed the bills, cheques and challans in token of approval of the payment/receipts without signing them; that he had not properly maintained the strong entrants’ register which was found outside the strong room and further the entries were not recorded and signed by him; that he had failed to remain present at the time of depositing money or withdrawing money from the currency chest and allowed others to operate the currency chest by using the keys of joint custodian; and that he had failed to submit the currency chest slip to R.B.I. on 15.4.2003 in respect of the currency chest transactions of 15.4.2003 and also failed to submit the daily sheets of 15.4.2003 and 16.4.2003.
4. An Enquiry Officer was appointed to enquire into the charges and he submitted the report that the charges were proven. On the basis of the enquiry report, the disciplinary authority, after following the requisite procedure, imposed the penalty of reversion to the post of Junior Accountant for two years with the stipulation that there would be postponement of future increments.
5. Aggrieved by the said punishment, the respondent approached the Tribunal in O.A. No. 923 of 2006 and raised various points assailing the validity of the initiation of the proceeding, the manner in which the enquiry was conducted and lastly, that the punishment imposed was disproportionate to the misconduct. The Tribunal referred to the Rule position and came to hold that there was no illegality or irregularity in the initiation of the disciplinary proceeding, framing of charge or conduct of the enquiry and further, regard being had to the gravity of the charge, the punishment could not be treated to be disproportionate. Being of this view, the Tribunal dismissed the original application.
6. The failure before the Tribunal compelled the respondent to invoke the jurisdiction of the High Court which, after adverting to the facts in detail and the competence of the person who had initiated the proceeding by issuing the memorandum of charges, came to hold that the findings recorded by the Tribunal on the said scores were absolutely defensible and did not warrant any interference. As far as the imposition of punishment was concerned, a contention was advanced that he had been imposed two major penalties which were not in consonance with the Rules. The High Court referred to the order of punishment, Rule 9 of the Rules that deals with major penalties and sub-Rule 27 of Rule
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