M. Krishna Rao, J.
1. This Full Bench has been constituted in view of the fact that the Division Bench consisting of Narasimham, J., ( as he then was ) and Parthasarathi, J., before whom the above appeal came up for hearing, disagreed with the view expressed by another Division Bench ( Obul Reddy and Madhava Reddy, JJ. ) in Writ Petitions Nos. 1140 and 1141 of 1965 ( Andh Pra ) ( judgment dated 13-10-1969 ).
2. The appellant herein is the petitioner in Writ Petition No. 746 of 1965. The Writ Petition was filed under Art. 226 of the Constitution of India to issue a writ of prohibition restraining the Tribunal for Disciplinary Proceedings from continuing the enquiry against the petitioner in D. E. No. 29 of 1964 on its file and for a consequential order to drop the proceedings.
3. When the appellant was serving as Police Sub-Inspector, he received an order dated 9-5-1964 from the Superintendent of Police placing him under suspension. On 10-7-1964 charges were framed by the Disciplinary Tribunal in D. E. No. 29 of 1964. On 16-7-1964 the Government issued G. O. Ms. No. 233, directing that all those whose services were extended beyond the date of their superannuation for the purpose of continuing proceedings against them , shall be deemed to have retired. The Superintendent of Police no doubt passed an order stating that he would not permit the appellant to retire unless the enquiry was over. The appellant was due to retire on 24-9-1964. It is common ground that the Government did not pass any order extending his service as required by the Fundamental Rules for the purpose of continuing the enquiry. Under these circumstances, the appellant filed the Writ Petition stating that the Tribunal has no jurisdiction to continue the disciplinary proceedings against him beyond the date of his superannuation. The Writ petition came up for hearing before Ekbote, J., as he then was. The learned Judge held that the Tribunal has jurisdiction to continue the enquiry as per the provisions of Art. 351-A of the Pension Code. It was however argued before the learned Judge that the Tribunal acquired jurisdiction only under the provisions of the Andhra Pradesh Civil Services ( Disciplinary Proceedings Tribunal ) Act II of 1960 and that the provisions of Art. 351-A in so far as they seek to confer jurisdiction of the Tribunal, should be recorded as void on the ground that they are repugnant or inconsistent with the provisions of the Act II of 1960. The learned Judge rejected the contention holding that there was no inconsistency or repugnancy between the two provisions and that the Tribunal had jurisdiction to continue the enquiry as per the provisions of Art. 351-A of the Pension Code. In coming to this conclusion the learned Judge relied upon a judgment of his Writ Petition No. 595 of 1965 ( Andh Pra ) which was delivered on the same day. Aggrieved by this judgment the appellant filed the above writ appeal. Justice Parthsarathi on behalf of the Division Bench made an order of reference agreeing with the view of the Ekbote, J., as he then was. But before the Division Bench the appellant relied upon the view expressed by another Division Bench in W. P. Nos. 1140 and 1141 of 1965 ( Andh Pra ) referred the above, wherein it was held that the provisions of Art. 351-A of the Pension Code cannot have the effect of overriding the provisions of Act II of 1960 and do not operate to confer any jurisdiction upon the Tribunal which was constituted under the provisions of the said Act. Justice Parthasarathi who spoke for the Bench did not agree with this view but held that the provisions of Art. 351-A and the provisions of Act II of 1960 should be read as complementary to each other and that there is no specific provision in Act II of 1960 either inconsistent or repugnant to the provisions of Art. 351-A of the Pension Code. In view of this difference of opinion, the above appeal is placed before this Full Bench.
4. The short question for determination before us is whether the provisions of Art. 351-A of the Pension Code are inconsistent with the provisions of Act II of 1960, or whether the said rule under the Pension Code confers authority on the Disciplinary Tribunal to continue the enquiry for the purposes of the Pension Code notwithstanding the retirement of the Government servant.
5. We will first refer to the provisions of Art. 351-A of the Pension Code :
' 351-A :-- The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specific period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.
Provided that :-- (a) Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment shall, after the final retirement of the officer, be deemed to be a proceeding under this Article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. '
( remaining portion is omitted ).
It may be noted that Article 351-A was a rule framed by the Governor under Article 309 of the Constitution of India and that it has got statutory force. The provisions of Act II of 1960 provide for the constitution of a Tribunal to conduct a disciplinary enquiry in matters which are referred to the Tribunal. The procedure to be followed by the Tribunal is governed by certain rules framed under the Act. After the conclusion of the enquiry the Tribunal submits a report to the Government recommending penalties which should be imposed on the Government servant. There is, no specific provision in Act II of 1960 enabling the Tribunal to continue the enquiry after a Government servant against whom an enquiry is pending, attains the age of superannuation during the enquiry. If orders are passed under the Fundamental Rules refusing to retire the Government servant and continuing him in service till the enquiry is over, the Tribunal can certainly proceed with such an enquiry. But in the present case there was no such order passed under the Fundamental Rules. Even in the judgment of the Division Bench in W. P. Nos. 1140 and 1141 of 1965 ( Andh Pra ) it was observed as follows :--
'We may however express here that it is open to the Government to appoint any authority for purpose of taking action under Article 351-A of the Pension Code. '
Instead of appointing another authority for the purpose of Article 351-A of the Pension Code, it is perfectly open to the Government , by virtue of the very same provision, to continue the enquiry. Proviso (a) to Article 351-A serves this purpose as it provides that after the final retirement of the officer, departmental proceedings shall be deemed to be proceedings under this Article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. This provision has the same effect and achieves the same result as an order passed under the Fundamental Rule 56 by which the services of a Government servant are continued after retirement for the purpose of concluding the disciplinary proceedings pending against him. We are, therefore, unable to notice any direct or indirect conflict between the provisions of Article 351-A and the provisions of Act II of 1960. We are in entire agreement with the view expressed by Parthasarathi, J. That the two provisions may be read as complementary to each other as there is nothing inconsistent between them.
6. It was then argued before us by the appellant's learned counsel that under Section 7 of the Act the Tribunal can recommend only penalties which are specified in the Andhra Pradesh Civil Services ( Classification, Control and Appeal ) Rules which cannot be imposed in a case like this. This argument was rejected by Ekbote, J., as he then was in Writ Petition No. 595 of 1965 ( Andh Pra ) referred to above. There is nothing in Act II of 1960 restricting the power of the Tribunal to recommend only one of the penalties mentioned in the C. C. C. A. Rules. The provisions of Section 7 of the Act are general and they empower the Tribunal to recommend penalties which should be imposed on the Government servant. The learned counsel also invited our attention to Rule 7 (5) of the Rules under Act II of 1960 stating that the provisions of the C. C. C.A. Rules shall apply in regard to any matter which no specific provision is made in the rules. This merely relates to the procedure at the enquiry under the Act. Sub-clause (ii) of Rule 7 (5) says that the C. C. C. A. Rules apply to any other matter for which no specific provision is made in these rules. We do not see how these provisions preclude the Tribunal from recommending a penalty under the Pension Code. In the personal context the only penalty which can be imposed under Article 351-A is withholding or withdrawing any pension or any part of it. The imposition of this penalty always rests in the Government and the Tribunal is a mere recommending authority.
7. Another argument advanced before us by the appellant's learned counsel is that the definition of a ' Government servant ' under Section 2 (b) of Act II of 1960 means a person in the civil service of a State and that the provisions of the Act do not apply to Government servants who are not in service. In view of the statutory provision contained in proviso to Art. 351-A, the public servant continues to be in service till the disciplinary enquiry is concluded. Hence the Government servant continues to be such for the purposes of the enquiry before the Tribunal. In any view of the matter, we are unable to see that there is any conflict between the provisions of Act II of 1960 and Article 351-A of the Pension Code. We, therefore, agree with the view expressed by Parthasarathi, J. on behalf of the Division Bench and disagree with due respect with the view expressed by the Division Bench in W. P. Nos. 1140 and 1141 of 1965 ( Andh Pra ). We accordingly hold that the Tribunal has jurisdiction to proceed with the enquiry for the purposes of imposing penalties under the Pension Code.
8. We, therefore, dismiss the appeal, but there will be no order as to costs. Government Pleader's fees is fixed at Rs. 100 /-
9. Appeal dismissed.