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K. Krishna Murthy Vs. State of Andhra (Now Andhra Pradesh) Represented by District Prohibition Officer, East Godavari at Kakinada - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 645 of 1955
Judge
Reported inAIR1960AP29
ActsConstitution of India - Article 311(1)
AppellantK. Krishna Murthy
RespondentState of Andhra (Now Andhra Pradesh) Represented by District Prohibition Officer, East Godavari at K
Appellant AdvocateC. Appa Rao, ;N. Chandramouli, ;Y. Narayanamurthy and ;N. Adinarayanamurthy, Advs.
Respondent AdvocateM.S. Ramachandra Rao, Govt. Pleader
DispositionPetition allowed
Excerpt:
service - compulsory retirement - article 311 (1) of constitution of india - writ petition challenging legality of order of compulsorily retiring petitioner - petitioner appointed by commissioner of excise - dismissal ordered by district prohibition officer acting as assistant excise commissioner - dismissal can be made either by appointing authority of officer co-ordinate to commissioner of excise - held, dismissal not valid. - - having made every attempt to serve the petitioner and failed, the enquiring officer submitted his findings on the charges framed. ' an appeal was preferred to the deputy commissioner of excise by the petitioner but unsuccessfully......was directed to submit his written statement within one month from the date of the receipt of the memo of charges.the memo of charges was sent by registered post and it was received on 29-12-1952 by the petitioner's son, who acknowledged receipt. no written statement was filed as directed in that memo within the time in spite of several reminders. thereafter the petitioner sent a reply stating that he was sick, unbalanced in mind and wag not in r fit condition to offer his explanation and peruse the record. on receipt of this, a requisition was issued by the respondent to the civil assistant surgeon, amalapuram for report whether the petitioner was in a condition to appear in the departmental enquiry. after examining the petitioner, the doctor sent a report that the petitioner was fit.....
Judgment:

P. Chandra Reddy, C.J.

1. In this Writ Petition the legality of the order compulsorily retiring the petitioner is assailed.

2. The petitioner was appointed Sub-Inspector of Excise on 23-4-1928 by the Commissioner of Excise. He was promoted as Assistant Commercial Tax Officer in December 1941 and he was reverted as Sub-Inspector in April 1945. In or about the year 1946, he was transferred to the Prohibition Department as Sub-Inspector by the Board of Revenue and was confirmed in that office on 10th November, 1951. He seems to have been guilty of several irregularities and laches which led to the framing of six charges in 1952. The charges were communicated to the petitioner and he was directed to submit his written statement within one month from the date of the receipt of the memo of charges.

The memo of charges was sent by registered post and it was received on 29-12-1952 by the petitioner's son, who acknowledged receipt. No written statement was filed as directed in that memo within the time in spite of several reminders. Thereafter the petitioner sent a reply stating that he was sick, unbalanced in mind and wag not in R fit condition to offer his explanation and peruse the record. On receipt of this, a requisition was issued by the Respondent to the Civil Assistant Surgeon, Amalapuram for report whether the petitioner was in a condition to appear in the departmental enquiry. After examining the petitioner, the Doctor sent a report that the petitioner was fit to attend the departmental enquiry.

Thereupon, the department asked the petitioner to file this written statement within ten days of the receipt of the memo. This was sent by registered post with acknowledgment due, but the notice was evaded under some pretext or other. Having made every attempt to serve the petitioner and failed, the enquiring officer submitted his findings on the charges framed. Taking into consideration the findings, the concerned officer required the petitioner to submit his further representation against the proposed punishment of dismissal within seven days of the receipt of the memo. Although the said memo was received by the petitioner's son no further representation was received from the petitioner in spite of several reminders.

3. Having waited for some time, the respondent proceeded to Annavaram and recorded a statement from the petitioner on 25-9-1953. In this statement the petitioner expressed a desire to peruse certain records and he was allowed all facilities to look into whatever records he wanted. The final representation was made by the peti-tioner on 30th October, 1953, Once again, the provisional findings which were reached on a consideration of all the material, were forwarded to the petitioner and he was called upon to submit his final representation.

It was done on 15-5-1954. In addition to the charges and enquiry above mentioned, two more charges were framed in regard to his work at Annavaram and he was asked to submit an explanation. The petitioner adopted the same attitude as before, namely, evading service of summons, with the result that the department had no option but to give its findings on those charges also.

4. These findings were sent to the petitioner and he was directed to submit his final representation but no such thing was done by him. After considering all the charges and the findings thereon, the respondent passed orders in the course of which it was observed thus:

'Though the Sub-Inspector deserves the punishment of dismissal as indicated. I take a lenient view considering his long service of more than 26 years and he being on the verge of retirement. However, I consider that continuance of this type of Sub-Inspector any further in service is to breed inefficiency and indiscipline in the department. I therefore, order his compulsory retirement from service from the date of relief.'

An appeal was preferred to the Deputy Commissioner of Excise by the petitioner but unsuccessfully. Thereafter, he took the matter in revision to the Government but before final orders were passed, he moved this court under Article 226 of the Constitution.

5. The only point urged in support of this petition is that since the petitioner was appointed originally by the Board of Revenue, it was not competent for the District Prohibition Officer to inflict any punishment. There is substance in this argument. Article 311(1) of the Constitution, which is relevant for the purpose of this enquiry reads:

'No person who is a member of a civil service of the Union or an All-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by any authority subordinate to that by which he was appointed.'

The effect of this Article is that a Government servant cannot be punished by any authority subordinate to that which had actually appointed him. It is no doubt true that this article does not require that the dismissal must be by the very same officer who appointed him. The 'competent authority' can be either the officer who initially made the appointment or any other officer who is coordinate in rank to him. That is the purport of the clause 'dismissed or removed by any authority subordinate to that by which he was appointed.' By reason of this Article, no subordinate onicer has jurisdiction to inflict any of the punishments contemplated by the Madras Civil Services (Classification, Control and Appeal) Rules.

Since admittedly the order of compulsory retirement was passed in this case by the District Prohibition Officer who is said to hold the rank of an Excise Assistant Commissioner, it does not satisfy the requirements of Article 311(1) as the petitioner is shown to have been appointed by the Commissioner of Excise. It follows that the order in question should be vacated. This does not preclude the Department from proceeding with the enquiry from the stage at which the findings were submitted by the Deputy Prohibition Officer. It is open to the Commissioner of Excise or the Prohibition Officer, as the case may be, to take further proceedings and pass such orders as he deems fit.

6. In the result, the order of compulsory retirement is set aside. No costs.


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