1. This Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari or any other appropriate Writ or direction calling for the records connected with G.O.Ms. No 638 dated 13-4-1964 as confirmed by the proceedings of the First respondent. Government of Andhra Pradesh, in Memo. No. 3081/U-64-5 dated 19-5-1965 and quash the same or pass such other orders as may be deemed fit and necessary.
2. The facts leading to this Writ Petition are the following: The petitioner is the Sub-Registrar in the Registration Department of Andhra Pradesh. Allegations of corruption and collection of amounts for National Savings Certificates and misappropriating those funds were made against him in a petition dated 22-6-1959 sent to the second respondent, the Inspector General of Registration. The Inspector General of Registration directed the District Registrar, West Godavari to conduct a preliminary enquiry and on the basis of the report submitted by the District Registrar, the Second respondent the Inspector General of Registration framed charges against the petitioner in proceeding No. 13493 dated 3-12-1959
Thereafter, a regular enquiry was conducted. 11 witnesses were examined for the prosecution and 4 witnesses were examined in defence by the petitioner. After issuing him a show cause notice, the Inspector General dismissed him from service and the petitioner preferred an appeal against the order of dismissal passed by the Inspector General of Registration, to the Government and the Government in G.O.Ms. 2111--Revenue dated 13-12-1963 modified the punishment imposed by the Inspector General of Registration and directed the petitioner to approach the Inspector General for necessary orders. The Government converted the punishment of dismissal into one of reduction in pay by three stages for three years and asked the Inspector General of Registration to reinstate him in service. Accordingly, the petitioner was reinstated by the proceedings of the Inspector General of Registration dated 19-12-1963 informing him of the punishment imposed by the Government.
Subsequently, the second respondent asked for a clarification of the orders of the Government in G.O.Ms. 2111 dated 13-12-1963. The clarification asked for by the second respondent was whether the reduction will or will not operate as to postponing the increments of the petitioner and there was also, no specified order regarding pay and allowances to be paid to the petitioner for the period of his absence and whether the period of absence should be treated as period spent on duty. The Government then Issued another G.O.Ms. 638 dated 13-4-1964, clarifying the points raised by the second respondent. The clarification is to the effect that the period from the date of dismissal of the petitioner to the date of reinstatement should be treated as leave to which he was eligible and the reduction of pay ordered in the previous G.O. 2111 Revenue dated 13-12-1963 will have the effect to postpone the future increments of the petitioner. It is this G.O. that is now challenged by the petitioner as enhancing the punishment ordered in the earlier G.O., G.O.Ms. 2111 dated 13-12-1963.
3. Mr. Kondapi, the learned counsel appearing for the petitioner argued that the Government by way of clarification of G.O. Ms. 2111 cannot enhance the punishment as to affect his future increments and this is in violation of the principles of natural justice and without affording him an opportunity to defend himself. The learned counsel Mr. Kondapi argued that the evidence placed before the Enquiry Officer will not justify the findings of the Enquiry Officer on the basis of which the petitioner was originally dismissed and later the punishment modified by the Government, and even otherwise the order of the Government in G.O.Ms. No. 638 Revenue dated 13-4-1964 imposes a fresh punishment not contemplated under G.O. Miscellaneous 2111 and hence he was deprived of the constitutional protection guaranteed to him under Article 311(2) of the Constitution.
4. Therefore, the main question that arises for determination is whether the clarification given by the Government is a variation of the punishment imposed upon the petitioner resulting to his disadvantage and if so, whether the petitioner was entitled to a fresh notice to enable him to offer his explanation. In this connection, it may be relevant to notice the relevant Fundamental Rules governing this case. Under F.R. 52, the pay and allowances of the Government Servant who is dismissed or removed from service cease from the date of such dismissal or removal. Under F.R 53, a Government servant under suspension is entitled to subsistence allowance and the Andhra Pradesh Leave Rules also provided for the payment of subsistence allowance. Under F.R. when a Government servant who has been dismissed or suspended is reinstated, the authority competent to order reinstatement has to make a specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and whether or not the said period should he treated as a period spent on duty. Under Sub-clause (3) ot Rule 54, a Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe, Under Sub-clause (5) of Rule 54, in a case falling under Clause (3) the period of absence from duty shall not be treated at a period spent oh duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose.
The other relevant Rule, Rule 29, which deals With the effect on increments. Rule 29(1) is to the following effect: 'If a Government servant is reduced, as a measure of penalty, to a lower stage in his time-scale, the Authority ordering such reduction shall state the period for which it shall be effective and whether on restoration it shall operate to postpone future increments and. if GO to what extent' Rule 29(2): 'If a Government servant is reduced, as a measure of penalty to a lower grade or post, the authority, ordering the reduction mav or may not specify the period for which the reduction shall be effective but where the period is specified that authority shall also state whether on restoration the period of reduction shall operate to postpone future increments and if so to what extent' It Is having regard to this rule that the second respondent addressed the Government for clarification. The first G.O., G.O.Ms 2111 by which he was referred to the Inspector General of Registration for orders on his appeal was not furnished in full to him as the information in paragraphs 1 and 2 of the G.O. are withheld When he asked for a copy of the G.O. he was informed that there was no need to furnish him with a copy of the G.O. as the Government themselves despatched a copy of the G.O. direct to him. The G.O. despatched direct to him did not contain paragraphs 1 and 2 but only the last paragraph which referred him to the Inspector General of Registration However, the Government informed him in reply to his request for a copy of the G.O. that the Government had ordered for his reinstatement modifying the punishment of dismissal ordered by the Inspector General as that of reduction by three stages in his pay in the time scale for three years.
The petitioner again requested the Inspector General of Registration, with a copy to the Secretary to the Government Revenue Department for a full copy of G.O.Ms 2111 dated 13-12-1963 under which he has been reinstated. In this he made a complaint that he had not received his last pay certificate, nor was any interim arrangement made for payment of his salary for about a year and that he may at least be paid the minimum salary payable to a Sub-Registrar. The Inspector General of Registration informed him by his order dated 10-7-1964 that a full copy of G.O.Ms 2111 dated 13-12-1963 cannot be furnished to him. It is during this period when the petitioner was not even paid the minimum salary that the Inspector General of Registration asked fot clarification of G. O. Ms. 2111 having regard to F.R 34 and FR. 29. It is therefore clear that at no time the petitioner was furnished with a full copy of GO. Ms 2111 dated 13-12-1963 except para 3, which states that the appellant is referred to the Inspector General of Registration and Stamps for orders on his appeal read above' He knew only by the proceedings of the Inspector General of Registration dated 2-3-1964 the punishment Inflicted on him. Para 2 of the order reads:-
''at regards the punishment, he is Informed that in proceedings No X 1-16342-63 dated 19-12-1963 he was already Informed, that the Government had ordered for his reinstatement modifying the punishment of dismissal ordered by the Inspector General as that of reduction by three stages In his pay in the time scale for three years'.
This only shows that there was reduction by three stages in his pay in the time scale for three years
The impugned G.O. which clarified the earlier G.O. Ms. 2111 reade:-
'In continuation of the orders issued in the G.O.. read above, the Government directed that the period of absence from duty of Sri G.Section George, former Sub-Registrar of Draksharama i.e from the date of his relief in the Deportment pursuant to his dismissal from service to the date of his reinstatement in the Department, be treated as leave to which he is eligible for purposes of continuity of MP service
2. They also direct that the reduction of Sri G.S. George in his time scale of pay for a period of three year? ordered in the G.O. read above all shall have effect to postpone his future increments' This G.O. clearly inflicts upon him a punishment which was not contemplated in G.O Ms. 2111 While the former G.O. had the effect of reduction in the time scale of pav only for a period of three years this G.O. has debarred Mm from naming future increments. This is certainly a variation of the punishment which has the effect of postponing his future increments for ever
5. There is no doubt that when the first G.O. (G.O.Ms 2111 was passed, the constitutional requirements of Article 311(2) have been satisfied. But if it had rested with that and a subsequent G. 0. had not been issued by way of clarification, which has the effect of postponing his future increments, the question of the competent authority depriving the petitioner of a reasonable opportunity would not have arisen. When the punishment imposed in G.O.Ms. 2111 is not the same as the punishment imposed in G.O.Ms. (538 it amounts to visiting him with evil consequences which were not contemplated earlier. Therefore an opportunity should have been afforded to the petitioner to explain the defence that there are no fresh circumstances arising after G.O.Ms. 2111 was passed to vary or modify the unishment so as to affect his future increments. The punishment that was limited for three years in the earlier G.O. which was the result of the disciplinary proceedings instituted against him has now been enhanced so as to affect his future services.
Article 311(2) contemplated reasonable opportunities to meet the charges framed against a public servant. The first opportunity should be provided at the stage of the enquiry after the charges are made available to him and the second stage is by giving him a notice why a particular punishment should not be imposed on him. If these two opportunities are provided and a final order is made, then there will be no question of denying a Government servant of protection under Article 311(2). In this case, proper opportunities at both stages were afforded to the petitioner and in the first instance he was dismissed by the second respondent and on representation or appeal by the petitioner to the State Government, the State Government modified or altered the punishment as embodied in G.O.Ms. 2111 and reinstated him as Sub-Registrar in the Registration Department and the reinstatement had only the effect of reduction in his pay in the time scale for three years. This G.O. is dated 13th December, 1963 and the impugned G.O. dated 13th April 1964 lays down that the reduction in the time scale of pay for a period of three years shall have the effect to postpone his future increments. This certainly is not the punishment that was finally imposed by the Government on the petitioner as a result of the enquiry. It is a punishment which is not the outcome of the enquiry as embodied in G.O. Ms. 2111.
The Government in its Memorandum No. 460/62-2 General Administration (Services C) Department dated 3rd July 1962 has clearly clarified the position relating to the procedure to be followed in cases of minor punishments. It reads:-
'It is hereby clarified that before imposing a minor penalty, an opportunity of making a representation, against the imposition of the particular penalty proposed must be given to the delinquent Government Servant, if such particular penalty has not already been indicated in the memorandum of charges Even in cases where the original proposal of imposing a major penalty is replaced in the course of proceedings by a proposal to impose a minor penalty the delinquent officer must be given an opportunity of making a representation against the particular penalty proposed as the proceedings already taken in pursuance of the proposal to impose major penalty are of no consequence in view of its abandonment'.
Therefore in view of the fact that the punishment imposed in G.O.Ms. 2111 has been abandoned by the Government andanother punishment, in an enhanced formwas proposed the petitioner was entitled tothe protection under Article 311(2) of theConstitution and he has been denied of anopportunity to defend himself against thepunishment imposed in G.O.Ms. 638 dated13-4-1964. G.O.Ms. 638 dated 13-4-1964 istherefore quashed, sustaining G.O.Ms. 2111dated 13th December, 1963. Petition allowed with costs. Advocate's fee Rs. 100.