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Y. Panduranga Swamy Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No 4667 of 1968
Judge
Reported inAIR1971AP234
ActsAndhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 - Sections 7; Constitution of India - Articles 20(1) and 311; Presentation of Corruption Act; Prevention of Corruption Act, 1947 - Sections 5(1); Andhra Pradesh Civil Services (Conduct) Rules, 1964 - Rules 9(7) and 28; Andhra Pradesh Government Servant's Conduct Rules, 1958
AppellantY. Panduranga Swamy
RespondentThe State of Andhra Pradesh and anr.
Appellant AdvocateB. Bheema Raju, Adv.
Respondent AdvocateS. Ramachandra Reddy, Adv. for ;Govt. Pleader
Excerpt:
service - dismissal of employee - section 7 of andhra pradesh civil services (disciplinary proceedings tribunal) act, 1960, articles 20 (1) and 311 of constitution of india and section 5 (1) of prevention of corruption act, 1947 - allegations of misconduct against petitioner - copy of report by tribunal imposing punishment upon petitioner not furnished to him - such failure contravenes provisions of article 311 denying reasonable opportunity to delinquent officer to make representation - held, order of dismissal passed against petitioner quashed - government at liberty to proceed against petitioner on ground of other charges. - - 1 in the name of his wife and children and being a government servant failed to submit a full and complete statement of movable and immovable properties.....vaidya, j.1. the petitioner joined service in the co-operative department in the year 1953 as senior inspector at eluru. he was promoted as sub registrar of co-operative societies in february 1961 and was the business manager of the west godavari district co-operative marketing federation. eluru from 9-12-61. while he was discharging his duties, according to the petitioner, honestly to the satisfaction of his superiors, the state of andhra pradesh respondent no. 1 on 29-8-1966 referred to the tribunal for disciplinary proceedings. government of andhra pradesh respondent no. 2 for enquiry and report under section 4 of the a. p. civil services (disciplinary proceedings tribunal) act. 1960, (hereinafter referred to as the disciplinary tribunals act) certain allegations of misconduct against.....
Judgment:

Vaidya, J.

1. The petitioner joined service in the Co-operative Department in the year 1953 as Senior Inspector at Eluru. He was promoted as Sub Registrar of Co-operative Societies in February 1961 and was the business Manager of the West Godavari District Co-operative Marketing Federation. Eluru from 9-12-61. While he was discharging his duties, according to the petitioner, honestly to the satisfaction of his superiors, the State of Andhra Pradesh respondent No. 1 on 29-8-1966 referred to the Tribunal for Disciplinary proceedings. Government of Andhra Pradesh respondent No. 2 for enquiry and report under Section 4 of the A. P. Civil Services (Disciplinary Proceedings Tribunal) Act. 1960, (hereinafter referred to as the Disciplinary Tribunals Act) certain allegations of misconduct against the petitioner. The 2nd respondent on 18-9-1966 framed three charges against the petitioner. Those charges are:

'That the charged officer while working as Co-operative Sub-Registrar Business Manager of the Co-operative Marketing Federation, West Godavari District Eluru from 9-12-1961 to 29-3-1964 acquired properties in all valued about Rs. 16, 000/- in the names of his wife, father and children which are disproportionate to his known sources of income and thereby he is guilty of misconduct within the meaning of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunals) Act, 1960 and the Rules framed thereunder.

Charge No 2: That the charged officer while working in the same capacity as mentioned in charge No. 1 had purchased properties referred to in items 1 and 2 mentioned in the allegation given under charge No. 1, in the name of his wife, within the local limits of his authority without the prior sanction of the Government and thus violated Rule 10 of the Government Servant's Conduct Rules, 1958 and thereby he is guilty of misconduct within the meaning of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and the rules framed thereunder.

Charge No 3: - That the charged officer while working in the capacity as mentioned in charge No. 1 acquired three items of properties as mentioned in the allegations made under charge No. 1 in the name of his wife and children and being a Government servant failed to submit a full and complete statement of movable and immovable properties held or acquired by him or by any member of his family annually and he failed to do so even when he was directed by the Registrar of Co-operative Societies and thus violated sub-rules (7) and (8) of Rule 9 of Andhra Pradesh Civil Services (Conduct) Rules 1964 and thereby he is guilty of misconduct within the meaning of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and the Rules framed ther support of his contention he examined D. Ws. 1 to . the 2nd respondent rejecting the contention of the petitioner, held him guilty of all three charges solely on the ground according to the petitioner that he failed to establish that the properties in question were acquired by his wife and his father with their own resources and earnings. The 2nd respondent then submitted its report to the 1st respondent and the 1st respondent acting upon the said report ordered the dismissal of the petitioner from service by G. O. Ms. No. 1182 dated 8th September 1968. This order of dismissal is challenged before us in this writ Petition.

3. The learned Counsel argued that from a reading of the Tribunals report, it is evident that the Tribunal has found him guilty of the first charge because he failed to establish that the properties acquired by his wife and his father were with their own resources and earnings. This conclusion has been reached by the Tribunal by application of Section 5(1)(e) of the Prevention of Corruption Act 1947. This clause (e) of sub-section (1) of Section 5 of the aforesaid Act came into force on 19-12-1964 and as the acquisitions of which the petitioner is charged, relate to a period between 9-12-1961 and 29-3-1964 he could not have been convicted by applying the provisions of convicted by applying the provisions of Section 5(1)(e) of the Prevention of Corruption Act, 1947. In support of his argument he relies upon the provisions of Article 20(1) of the Constitution. he also contends that a statute or a Rule should contends that a statute or a Rule should contends that a statute or a Rule should not be so construed as to create new disabilities or obligation or impose new duties in respect of transactions which had been completed before the Statute or Rule came into force. He also contended that if Section 5(1)(e) of the Prevention of Corruption Act is not applicable, there is no evidence on the basis of which the petitioner could have been held guilty of the first charge made against him. As regards charges 2 and 3 his contention is that they depend upon the proof of charge No. 1. If it is held that charge No. 1 is not proved, the petitioner has also to be exonerated on charges 2 and 3.

4. In order to appreciate the arguments advanced on behalf of the petitioner, it is necessary to consider the provisions of the Disciplinary Tribunals Act, the Rules made thereunder and the Provisions of Section 5(1)(e) of the Prevention of Corruption Act. The Disciplinary Tribunals Act by Section 4 provides for the reference to the Tribunal for enquiry and report such cases as may be prescribed of allegations of misconduct on the part of the Govt. Servants. Section 10 empowers the Government to make rules under the provisions of the Act. The word 'prescribed' occurring in Section 4 has been defined by Section 2(c) of the Act to mean prescribed under the Rules made under this Act. Rule 2 (b) of the Rule made under the Act before its amendment on 6th May 1966 read:

'Corruption shall have the same meaning as Criminal misconduct in the discharge of official duties under Section 5(1)(e) of the Prevention of Corruption Act, 1947 (Central Act 2 of 1947).'

At the time when the rules were enacted in the year 1961, Section 5(1)(e) of the Prevention of Corruption Act contained only clauses (a) to (d). The said Act was amended and clause (e) was added on 19th December 1964 which reads as follows:

'5 (1) A public servant is said to commit criminal misconduct: (e) if he or any person on his behalf is in possession or has, at any time during the period of his office been in possess in, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.'

The Rules aforesaid were amended by G.O. Ms. No. 780 dated 6th May 1966. The word 'corruption' occurred in the rules, it shall be substituted by the word 'misconduct.' Rule 2 (b) was amended to read as follows:

'Misconduct shall have the same meaning as criminal misconduct in the discharge of official duties under Section 5(1)(e) of the Prevention of Corruption Act, 1947 (Central Act 2 of 1947).'

5. As Rule 2 (b) was amended on 6th May 1966, the Disciplinary Tribunal when the case was referred to it, on 24th August 1966 was competent to consider whether the petitioner was guilty of misconduct as defined in Rule 2 (b) of the Rules. The argument therefore of the learned counsel that when the matter was referred to the Tribunal, it was not competent to apply Section 5(1)(e) of the Prevention of Corruption Act, cannot be accepted.

6. The main argument in regard to the application of Section 5(1)(e) of the Prevention of Corruption Act is based upon the provisions of Article 20(1) of the Constitution. This Article reads:

'No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.'

The argument is that the worked 'offence' has not been defined in the Constitution and by virtue of the provisions of Article 367(1) of the Constitution, the General Clauses Act, 1897 shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. The expression 'offence' has been defined in Section 3 clause (38) of the General Clauses Act to mean 'any act or omission made punishable by any law for the time being in force.' On the basis of this, it is argued that the mis-conduct for which a public servant is held guilty, is also an offence as it is an act or omission on his part which is made punishable by the A. P. Civil Services (Control, Classification and Appeal) Rules (hereinafter referred to as the C. C. C. A. Rules). The words 'conviction' and offence need not necessarily mean, it is contended that there should be a criminal trial under the Criminal Procedure Code and any punishment imposed under the Indian Penal Code what is necessary for the application of this Article is holding an enquiry by a judicial Tribunal and a punishment inflicted on the finding given by that tribunal. Reliance is placed on a decision of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, : 1954CriLJ1480 . While interpreting the provisions of Article 20(1) of the Constitution, their Lordships in para 8 observed:

'This Article in its broad import has been enacted to prohibit convictions and sentences under 'ex post facto' laws.'

Their Lordships further held in para 9 that:

'What is prohibited under Art. 20(1) is only conviction or sentence under an 'expost facto' law and not the trial thereof.' It is argued that as the charge against the petitioner is with respect to the acquisition of property during the period prior to the enforcement of Section 5(1)(e) of the Prevention of Corruption Act or to the amendment of the Disciplinary Tribunal Rules introducing Section 5(1)(e) in Rule 2 (b) of the Rules, the conviction of the petitioner under the amended Rule 2 (b) would amount to his conviction under 'ex post facto' law.

7. In order to interpret the provisions of Article 20(1) of the Constitution it is also necessary to see the provisions of sub articles (2) and (3). These sub-article provided:

'(2) No person shall be prosecuted and punished for the same offence more that once.

(3) No person accused of any offence shall be compelled to be a witness against himself.'

The provisions of Article 20(1) of the Constitution came up for consideration before their Lordships of the Supreme Court in Maqbool Hussain v. State of Bombay, : 1983ECR1598D(SC) . Their Lordships observed:

'The very wording of Art. 20(1) and the words used therein: 'Convicted', 'Commission of the Act charged as an offence' 'be subjected to a penalty' 'Commission of the offence', 'prosecuted and punished'. 'accused of any offence', would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the Statute which creates the offence and regulates the procedure.'

The tests of judicial tribunal were laid down in the case of Bharat Bank Ltd. Delhi v. Employees of the Bharat Bank Ltd., Delhi : (1950)NULLLLJ921SC were reiterated.

8. The observations of their Lordships of the Supreme Court extracted above, apply not only to the interpretation of article 20(1) of the Constitution which was before them, but also generally to the interpretation of Article 20(1) of the Constitution. The words 'convicted' 'commission of an act charged as an offence' 'be subjected to penalty; 'commission of the offence' are the words occurring in sub-article (1) and not in sub-article (2). These expressions and also the expression 'prosecuted and punished' occurring in sub-article (2) and 'accused of any offence' occurring in sub-article (3) have been taken into consideration and Article 20(1) of the Constitution interpreted to mean that these expressions indicate that the proceedings contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal.

9. It is argued by the learned counsel for the petitioner that the Disciplinary Tribunal constituted under the Disciplinary Tribunals Act is a judicial tribunal as it conforms to the tests laid down in Bharat Bank's Case. : (1950)NULLLLJ921SC . The procedure prescribed for enquiry by the judicial tribunal satisfies the conditions (1) presentations of the case by the parties to the dispute (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence. (3) If the dispute between them is a question of law, the submission of legal argument by the parties. It is true that the proceedings before the Disciplinary tribunal satisfied the aforesaid three tests but the fourth test laid in that decision viz. a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law, is not satisfied.

10. In order to determine whether the fourth condition is satisfied or not it is necessary to consider some of the provisions of the Disciplinary Tribunals Act. Section 7 of the Act enjoins upon the Tribunals, on the conclusion of the enquiry, to report its findings to the Government and where it finds that the Government servant has been guilty of misconduct, it has to recommend the penalty which should be imposed on such Government servant. But the finding of the Tribunal has not been made final and is not binding on the Government. Section 8 of the Act says that the Government shall consider the report of the Tribunal in the prescribed manner and pass such orders thereon as they think fit. The prescribed manner has been laid down in Rule 7 of the Rules made under the Act. Sub-rule (2) (iii) provides that the Government after considering the report of the Tribunal and having arrived at provisional conclusions in regard to the penalty to be imposed, shall supply the Government servant with a copy of the report of the Tribunal and he shall be called upon the to show cause within a reasonable time, against the particular penalty proposed to be imposed. Further by virtue of the proviso to this clause, it provides that the Government clause, it provides that the Government shall consult the Andhra Pradesh Vigilance Commission before it arrives at a provisional conclusion in regard to the penalty to be imposed and also after the receipt of any representation of the Government servant charged, against the particular penalty proposed to be imposed but before the actual imposition of the penalty. The second proviso to this clause says that where the Government disagreed within the whole or any part of the Tribunal's findings, the point or points of such disagreement together with a brief statement of the grounds thereof shall, in case where it affects the Government servant charged adversely or prejudicially be communicated to such Government servant. Any representation in this behalf submitted by the Government servant charged shall be duly taken into consideration by the Government before final orders are passed.

11. The provisions of the Rules referred to above, very clearly show that the Government is not bound to accept the findings given by the tribunal and can come to its won independent conclusion as to the guilt of the delinquent officer. These provisions make it very clear that the Disciplinary Tribunal is only a fact finding tribunal whose decision is neither final nor binding on the Government. The Tribunal therefore though it has some of the trappings of judicial tribunal, is not such a tribunal. This aspect came up for consideration before the Supreme Court in S. A. Venkataraman v. Union of India, : 1954CriLJ993 . The petitioner before their Lordships was a member of the India Civil Service and was charged with corruption. His case was referred to for enquiry to the Commissioner appointed under the Public Servants (Inquiries) Act 1850. The inquiry proceeded in the manner laid down in the said Act. Evidence was adduced both by the prosecutor and the defence and witnesses on both sides were examined on oath, cross-examined and re-examined in the usual manner. The Commissioner found on a consideration f the evidence that four of the charges under the various sub-heads were proved against the petitioner and submitted a report to that effect to the Government. The Government after consideration of the report came to a provisional conclusion and an opportunity was given to the petitioner in terms of Article 311(1) of the Constitution to show cause against the action proposed to be taken in regard him. After considering the representations made by the petitioner, the President finally decided to impose a penalty of dismissal upon the petitioner. After the final order of dismissal, the police submitted a charge sheet against the petitioner, charging him with offences under Sections 161/165 I. P. C. and section 5(1)(e) of the Prevention of Corruption Act. it is the legality of this proceeding before the Court which was challenged in the writ petition before the Supreme Court under Article 20(1) of the Constitution. The acts alleged to have been committed by the petitioner in the case before their Lordships on the basis of which charges have been framed against him, did come within the definition of offences described in Sections 161/165 I. P. C. and Section 5(1)(e) of the Prevention of Corruption Act. In regard to the inquiry under the Public Servants (Inquiries) Act, their Lordships observed:

'The Public Servants (Inquiries) Act, does not itself create any offence nor does it provide any punishment for it. Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain penalties upon public servants for good penalties upon public servants for good and sufficient reasons. The rule does not mention any particular offence and obviously can create none. It is to enable the Government to come to the conclusion as t whether good and sufficient reasons exist within the meaning of Rule 49 of the Civil Services Rules, for imposing the penalties of removal, dismissal or reduction in rank upon a public servant that an enquiry may be directed under Act XXXVII of 1850. A Commissioner appointed under this Act has o duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject matter of investigation by him is the truth or otherwise of the imputation of misbehavior made against a public servant and it is only as instances of f misbehavior that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word 'prosecution' has been used would not make the proceedings before the Commissioner, one for prosecution of an offence. As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceedings anything mere than a mere fact finding enquiry. This is conclusively established by the provisions of Ss. 21 and 22 of the Act. At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government under Sec. 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion..........

Then again neither Section 21 nor Section 22 of the Act says anything abut punishment. There is no power in the Commissioner even to express any opinion about punishment and section 22 only contemplates such order as the Government can pass in its capacity as employer in respect to servants employed by it. AS has been said already, an order of dismissal of a servant cannot be regarded as a punishment for an offence punishable under particular sections of the Indian Penal Code or of the Prevention of Corruption Act ......

In our opinion, therefore, in an enquiry under the public Servants (Inquiries) Act of 1850, there is neither any question of investigating of an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes that act or omission an offence.'

It is true that the aforesaid observations have been made in the context of Article 20(1) of the Constitution but they equally apply to Article 20(1) of the Constitution. The report of the Disciplinary Tribunal as already stated, lacks both 'finality and authorititiveness which are essential tests of judicial pronouncement.' The Disciplinary Tribunal therefore cannot be considered to be a judicial Tribunal. In addition to that, the Disciplinary Tribunal has no duty to investigate any offence, which is punishable under the Indian Penal Code or the Prevention of Corruption Act and it has absolutely no jurisdiction to do so. Further the Disciplinary Tribunal Act says nothing about the punishment. It is true that the Disciplinary Tribunal has to express an opinion about punishment, but that opinion again is not binding on the Government. The order made by the Government punishing the delinquent Officer is in its capacity as employer in respect of servants employed by it. The order of dismissal therefore of a delinquent Officer cannot be regarded as a punishment for an offence. In the enquiry under the Disciplinary Tribunal Act there is neither any question of investigation of an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by law which makes that act or omission an offence. The first contention of the learned counsel that by virtue of the provisions of Article 20(1) of the Constitution the Tribunal should not have taken into consideration the provisions of Section 5(1)(e) of the Prevention of Corruption Act made applicable by the definition of 'misconduct' in Rule 2(b) of the Rules, fails.

12. The learned counsel for the petitioner argued that Section 5(1)(e) of the Prevention of Corruption Act which has been made applicable by amendment of Rule 2 (b) of the Rules defining' misconduct' cannot be given retrospective effect. His contention is that the acts of acquisition referred to are before the amendment of the Rule 2(b) of the Rule making Section 5(1)(e) of the Prevention of Corruption Act applicable. We do not think it necessary to enter into this question in the view we are taking of charges No. 1 framed against the petitioner. According to the provisions of Section 5(1)(e) of the Prevention of Corruption Act applicable. We do not think it necessary to enter into this question in the view we are taking of charge No. 1 framed against the petitioner. According to the provisions of Section 5(1)(e) of the Prevention of Corruption Act it is the possession of property disproportionate to the known sources of income for which a public servant cannot satisfactorily account, has been made an offence of misconduct. The necessary ingredient of this section therefore is the possession of property and not the acquisition of traced does not in any manner speak of possession of the property by the delinquent officer at the date when the petitioner was charged with misconduct. It is argued by the learned Government pleader that even though it has not been stated in Charge No. 1 that the petitioner is in possession of the property acquired during 9-1-1961 and 29-3-1964 but as there is not statement by the petitioner that he is not in possession of the property, it cannot be said that the charge has not been framed properly so as not to take in Section 5(1)(e) of the Prevention of Corruption Act. it is further argued that the reference in charge No. 1 to the property being 'disproportionate to his known sources of income' clearly indicates that the charge is none contemplated by Section 5(1)(e) of the Prevention of Corruption Act. Be that as it may the fact remains that the delinquent officer was not called upon to meet the charge of possession of property at the date when the charge was laid against him. It will be against all principles of natural justice if a person who has not been charged with the specific offence created by a particular Section or Rule, is punished for the same. We are therefore of the opinion that the petitioner cannot be held guilty of misconduct under Section 5(1)(e) of the Prevention of Corruption Act.

13. It was then argued by the learned Government pleader that the Disciplinary Tribunal has held him guilty also under the other provisions of Section 5(1)(e) of the Prevention of Corruption Act. We do not accept this contention. None of the sub-sections (a) to (d) are attracted in the instant case. Further from a reading of the Disciplinary Tribunal's finding, it is evident that the Tribunal has held him guilty of misconduct because the petitioner was not able to establish that the properties in question were purchases by his wife and his father from their own resources of income. It is evident that the Disciplinary Tribunal has cast the burden of proving that the properties were purchased by the petitioner's wife were purchased by the petitioner's wife and father from their own resources of income, on the petitioner. This can only be done under the provisions of Section 5(1)(e) of the Prevention of Corruption Act. There the possession of property disproportionate to the known sources of income is a misconduct, unless a public servant satisfactorily accounts for possession of such property. In view of what we have stated above, charge No. 1 laid against the petitioner fails.

14. Charges Nos. 2 and 3 respectively relate to the petitioner's failure to obtain sanction of the Government prior to the purchase of properties by his wife and his failure to submit a full and complete statement of movable and immovable properties held or acquired by him or by any member of his family. Charge No. 2 speaks of violation of Rule 10 of the Government Servant's Conduct Rules, 1958. Charge No. 3 speaks of violation of sub-rues (7) and (8) of Rule 9 of the A. P. Civil Services (Conduct) Rules of 1964.

15. It is argued by the learned counsel for the petitioner that the aforesaid two charges fail, once the conclusion is reached that the Government has not proved that the properties mentioned in Charge No. 1 were purchased by the petitioner. He further contended that the Disciplinary Tribunal also proceeded on this assumption and while considering the charges observed that of the three charges, the first charge was the main charge and charges 2 and 3 'which are technical in nature. in my opinion, are dependent more on the establishment of the first charge.' Be that as it may, the Disciplinary Tribunal while considering charges 2 and 3 has found that the petitioner is guilty of the same irrespective of the fact whether charge No. 1 is true or not.

16. The main argument of the learned counsel for the petitioner in regard to charges 2 and 3 is that A. P. Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the Conduct Rules 1964) while repealing Government Servant's Conduct Rules of 1958 (hereinafter referred to as the Conduct Rules of 1958) does not provide for prosecution for acts done under the Conduct Rules of 1958. The Conduct Rules of 1964 were published on 30-4-1964 and came into force from that date. The petitioner cannot be charged under the Conduct Rules of 1964 for acts done by him prior to the application of those Rules. The petitioner cannot also be charged under the Conduct Rules of 2958 as those Rules had been repealed when the charges were laid against him and inquiry started. In order to appreciate the argument of the learned counsel in this behalf, it is necessary to read the provisions of Rule 28 of the Conduct Rules 1964.

'Repeal: The Government Servant's Conduct Rules 1958 are hereby repealed; Provided that such repeal shall not affect the previous operation of any action taken or orders or instruction issued thereunder and subject thereto, anything done or any action taken under the rules so repealed shall be deemed to have been done or taken under these rules.'

It is contended by the learned counsel for the petitioner that the repeal of the Conduct Rules, 1958 will not affect the previous operation of any actin taken or orders or instructions issued thereunder. This clearly refers to the action taken or orders or instructions issued by the Government. Anything done or any action taken under the Conduct Rules 1958 shall be deemed to have been done or taken under these Rules, does not take in any thing done by a public servant. In the context in which the above expression appears, it only refers to anything done by the Government and not by the public servant. On the contrary the contention of the learned Government Pleader is that the context can apply to the acts of the public servant because nothing can be done by the Government as such under the Conduct Rules 1958. These Rules only prescribe the mode of conduct which the public servant has to observe during his service. If there is any contravention of these rules, any action taken or anything done by the Government is not under the provisions of the Conduct Rules, but under the provisions of the other Rules like C.C.C. A Rules. He also contended that the expression 'anything done' cannot be confined to administrative action. In support of his contention he relied upon a decision of the Supreme Court in Indira Sohanlal v. Custodian of E. P. : [1955]2SCR1117 . Their Lordships were considering the provisions of Section 58 of the Administration of Evacuee Property Act (Central Act 31 of 1950). This Section provided for the repeal of the Administration of Evacuee Property Ordinance 1949. Sub-section (3) reads:

'The repeal by this Act of the Administration of Evacuee Property Ordinance 1949 (XXVII of 1949) ......... shall not affect the previous operation of that Ordinance, Regulation or corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance, Regulation or corresponding Law, shall be deemed to have been done or taken in the exercise of the powered conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.'

It was argued before their Lordships that the provision 'anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act were in force on the day in which such thing was done or action was taken' apply only to administrative matters. After considering the scheme of the repealed Ordinance, their Lordships Observed:-

'If Section 58 of Central Act 31 of 1950 which repelled the prior Ordinance is under stood with reference to the above scheme, there is not reason to confine the operation of the second portion of S. 58 to administrative action as suggested by learned Counsel for the appellant.

Broadly speaking, the second portion of Section 58 refers to the whole range of things that may be done, or action that may be taken, under the previous Ordinance and the rules framed thereunder, while the first portion of Section s58 relates to the legal consequences resulting under the Ordinance or the rules from certain facts or from completed acts or things done thereunder.'

17. Reliance was also placed on Sivarama Krishnayya v. Khuddus (1965 2 Andh WR 375). Our attention was drawn to the observations made in respect drawn to the observations made in respect of Section 8 of the Madras General Clauses Act on page 382. After referring to clause (a) of Section 8 of the Madras General Clauses Act, the learned Judges observed:

'The words 'anything done' there just include the whole range of things and actions.'

18. On the basis of the above said two decisions it is argued that no limited construction can be put on the expression 'anything done' occurring in Rule 28 of the Conduct Rules of 1964. The whole scheme of the Conduct Rules of 1958 which were repealed by Conduct Rules 1964 will have to be taken into consideration and it, will have to be determined whether the expression 'anything done' refers only to administrative actions or acts of the public servant.

19. Conduct Rules 1958 are Rules to regulate the conduct of Government servants. There are number of Rules which provide that the Government servant can do a particular act after obtaining the previous permission of the State Government such as acceptance of gifts (R. 4 ); acceptance of any decoration etc; (Rule 5) acceptance of trowels etc. at ceremonial functions (rule 7) participation in raising of subscriptions (Rule 8); lending moneys (Rule 9) buying and selling of houses (Rule 10) holding or acquiring immovable property (Rule 11) taking part in promotion or management of Companies (Rule 15) engaging in any private trade or employment (Rule 16) owning or conducting or participating in the editing or management of any Newspaper (Rule 19) giving evidence before committees (Rule 22) vindicating his official acts or character from defamatory attacks (Rule 24) employment in private firms of the sons or daughters etc. of the public servant (Rule 27) contracting bigamous marriage (Rule 30) and broad-casting any talks been empowered to issue general or special orders in regard to public demonstrations (Rule 6) control over immovable property (Rule 12) movable and immovable property (Rule 13) and communication of official documents or information (Rule 18).

The State Government has also been empowered by Rule 2 to declare any authority subordinate to it to be the State Government for all or any provisions of the Rules. The Rules also provide that in several disputed matters, the Government has to give its decision. A review of the Rules thus shows that the Government has to pass certain orders in individual cases, given certain decisions and also to pass general or special orders. All these orders and decisions of the Government will be within the first part of the proviso to Rule 28 i.e. within the ambit of 'any action taken or orders or instructions issued thereunder.' The expression therefore 'anything done under the Rule' refers to things done in addition to the orders, decisions and instructions issued under the Conduct Rules 1958. Of course anything done under the Conduct Rules, 1958 will be subject to the action taken or orders and instructions issued under the said Rules. In the context therefore, the expression 'anything done' cannot be restricted only to the administrative action or orders or instructions issued by the Government under the said Rules from time to time, but will also take in, any contravention of the Rules by the Government servant. The proviso to Rule 28 of the Conduct Rules, 1964 provides that anything done under the repealed Rules shall be deemed to have been done under 1964, Rules. This proviso creates a fiction that thought the conduct Rules, 1958 have been repealed, anything ]done under these rules will be considered to have been done under the 1964 Rules. In other words the provisions of 1964 Rules will be applicable to anything done when the Conduct Rules, 1958 were in force. It is because of this fiction that it was not thought necessary to provide that action can be taken or prosecution launched for any contravention of the Conduct Rules 1958. It was not the intention while enacting 1964 Rules that the conduct of a Government servant contrary to the Conduct, Rules 1958 should go unpunished. In this, view of the matter the contention of the learned counsel for the petitioner that as the acts complained of were of a period prior to the enforcement of the Conduct Rules, 1964, the petitioner could not have been prosecuted, fails.

20. in charge No. 2 reference has been made to Rule 10 of the Conduct Rules, 1958. it is argued that when the matter was referred to Disciplinary Tribunal, Conduct Rules, 1958 had been repealed, no reference could have been made to the said Rules, and such a reference would vitiate the proceeding. We do not find any force in this contention. it is settled law that the incorrect reference to a provision of law would not vitiate the proceedings. The provisions of Rule 9 of the Conduct Rules, 1964 are in pari materia with the provisions of Rule 10 of the Conduct Rules 1958. By virtue of the provisions of the proviso of Rule 28 of the Conduct Rules, 1964 the conduct of the delinquent officer will have to be considered under the provisions of Rule 9 of the Conduct Rules of 1964. Rule 9 specifically provides:

'No Government employee shall, except after previous intimation to Government acquire or dispose of, or permit any member of his family to acquire or dispose of any immovable property by exchange, purchase, sale gift or otherwise either by himself or though others.

Provided that any such transaction conducted otherwise than through a regular or reputed dealer shall be within the previous sanction of Government.'

'Member of the family' has been defined in Clause (v) of Rule 2 to include spouse, son, daughter, stepson or step daughter of an employee, whether residing with such employee or not. The provisions of Rule 9(1) read with Rule 2(v) put an embargo on acquisition of property by a member of family. Such an acquisition can be made with the previous sanction of the Government. In the instant case the acquisition of items 1 and 2 of the property mentioned in charge No. 1 are by the wife of the petitioner. It is not pleaded that those properties were acquired through regular or reputed dealer or with the previous sanction of the Government. The Disciplinary Tribunal has held that the petitioner is guilty of contravention of Rule 10 of the Conduct Rules 1958 even assuming that he is not guilty of charge No. 1. We do not find any reason to disagree with this conclusion of the Disciplinary Tribunal.

21. Charge No. 3 refers to sub-rules (7) and (8) of R.9 of Conduct Rules, 1964. Under sub-rule (7) a Government employee has to make a declaration of all immovable property owned, acquired or inherited by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person. This sub-rule contemplates that the property which is held in the name of any member of his family, should be the property belonging to him. The provisions of this sub-Rule do not apply unless it is held that the Govt. employee has purchased properties benami in the name of a member of his family. In the instant case, as we have held that charge No. 1 has not been proved, it cannot be held that the properties standing in the name of the petitioner's wife had in the name of the petitioner's wife had been acquired by him benami in the name of his wife. The contravention of sub-rule (7) therefore cannot be held to have been established.

22. Sub-rule (8) of Rule 9 of Conduct Rules 1964 enjoins upon a Government employee to submit a full and complete statement of all immoveable property and movable property of the specified value held or acquired by him or any member of his family. This sub-rule is applicable even in cases where the property is held by member of his family in his own right. Admittedly the petitioner did not give a full and complete statement of all immovable property inasmuch as in the statement submitted by him, he did not mention the property held by his wife. The finding of the Disciplinary Tribunal therefore that the petitioner is guilty of sub-rule (8) of Rule 9 of the Conduct Rules, 1964 cannot be interfered with.

23. It was sought to be argued by the learned counsel for the petitioner that the Disciplinary Tribunal had no jurisdiction to enquire about the contravention of the Conduct Rules 1964. The argument is that Rule 2 (b) of the Disciplinary Tribunal Rules was amended by G. O. Ms. 1543 dated 26-12-1966 to include 'with full contravention of A. P. Civil Services (Conduct) Rule, 1964' Prior to that, the definition of 'misconduct' did not include any contravention of the Conduct Rules. The date on which the matter was referred to the Tribunal for inquiry, it could only inquire in relation to the misconduct defined as 'criminal misconduct in the discharge of official duties' under Section 5(1)(e) of the Prevention of Corruption Act.

24. In order to determine this contention it is necessary to see the provision of the Disciplinary Tribunal's Act and the Rules made thereunder, Section 4 of the Disciplinary Tribunals' Act enjoins upon the Government to refer to the Tribunal for inquiry and report such case a as may be prescribed of allegations of misconduct on the part of Government servants. As already stated the term 'prescribed' has been defined in Section 2(c) of the said Act as 'prescribed by the rules made under the Act' Rule 3 of the Disciplinary Tribunal Rules reads:

'3 (1) The Government shall subject to the provisions of Rule 4 refer to the Tribunal for enquiry and report under Section 4 of the Act: (a) cases relating to Government servants on a monthly salary of Rs. 180/- and above in respect of matters involving misconduct: (2) The Government may subject to the provisions of Rule 4, also refer to the Tribunal any other case of misconduct which they consider should be inquired into by the Tribunal.'

A reading of Rule 3 shows that clause 1(a) is applicable in cases of misconduct as defined in Rule 2(b) of the Rules. Sub-rule (2) of Rule 3 refers to misconduct other than defined in Rule 2(b) which is evident from the wording 'any other case of misconduct'. The term 'misconduct' appearing in clause (a) of sub-rule (1) and sub-rule (2) cannot be given the same meaning because sub-rule (2) specifically provides for 'any other cases of misconduct' which would be a misconduct other than defined in Rule 2(b) of the Rules. the argument therefore that charges 2 and 3 which deal with contravention of R. 9 and sub-rules (7) and (8) of Rule 9 of the Conduct Rules, 1964 could not have been referred to the Disciplinary Tribunal, fails.

25. Having held that charge No. 1 and a part of charge No. 3 have not been established, it remains to be considered whether this Court has jurisdiction to quash the order of dismissal. Reliance is placed by the learned Government Pleader on State of Orissa v. Bidvabhushan Mohapatra, : (1963)ILLJ239SC and Railway Board, New Delhi v. Niranjan Singh, : (1969)IILLJ743SC and it is argued that even if the court comes to the conclusion that a particular charge has failed, it has no jurisdiction to quash the order of dismissal. The learned counsel for the petitioner argues that the Supreme Court cases deal with cases where the charges held to be proved are by themselves substantial. In the instant case charges No. 2 and 3 are merely technical and are not substantial like charge No. 1. The decisions of the Supreme Court therefore, it is argued, are not applicable and this Court has jurisdiction to quash the order of dismissal.

26. It is not necessary for us to enter into a discussion of this aspect of the case as the order of dismissal is liable to be quashed on other grounds. Admittedly while furnishing the petitioner with a copy of the report of the Tribunal, the recommendation made by the Tribunal in regard to the punishment to be imposed upon the petitioner, was not supplied to him. The Supreme Court has held that failure to supply the copy of the recommendation made by the Enquiring Authority to the delinquent officer contravenes the provisions of the Art. 311 of the Constitution inasmuch as such a failure would not afford reasonable opportunity to the delinquent officer to make his representation. We have taken the same view in two writ petns. Nos. 117 of 1966 D/- 8-6-1970 (Andh Pra). In both these writ petitions the enquiring Authority was the Disciplinary Tribunal and according to the recommendation made by the Tribunal in regard to the punishment to be imposed on the delinquent officer was not furnished to the said officer. We have taken the view that even in such cases there is a denial of reasonable opportunity to the delinquent Officer to make his representation on the Penalty proposed. We therefore quash the order of dismissal passed against the petitioner. This would not preclude the Government from proceeding against the petition in accordance with law subject to our decision on charge No. 1 and part of charge No. 3 from the stage of show cause notice if they so chose. The writ petition is allowed with costs. Advocate's fee Rs. 100/-.

27. Petition allowed.


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