Dr. V. Badari Nath, vs The Government Of Andhra Pradesh,
2021 Latest Caselaw 3083 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                       WP.No.20783 of 2020
O R D E R:

This writ petition is filed by the petitioner seeking a writ

of Mandamus questioning the action of the 1st respondent in

issuing G.O.Ms.Nos.734 and 735 dated 09.09.2020, initiating

the departmental actions and sanctioning 75% of the pension

only to the petitioner.

This Court has heard Sri S.Srinivasa Rao, learned

counsel or the petitioner and the learned Government Pleader

for Services-I appearing for the respondents.

Petitioner before this Court has retired as an Assistant

Commissioner of Commercial Taxes on 31.07.2017.

Thereafter, his terminal benefits etc., were not settled. He

agitated separately for settlement of his terminal benefits.

Learned counsel points out that the impugned G.O.s dated

09.09.2020 were issued proposing to hold an enquiry against

the petitioner for certain alleged irregularities that took place

in the year 2008-2009 and sanctioning only 75% of his

pension. Learned counsel submits that the petitioner is not

strictly connected with the 'alleged' issue and that his

recommendations were approved by his superiors and are as

per the existing rules/practice. Apart from that he submits

that the petitioner retired in July, 2017. Thereafter, initiating

a disciplinary enquiry in October, 2020 is contrary to the Rule

9(2) (b) of A.P. Revised Pension Rules, 1980. He also submits

that as the petitioner is a retired employee, the proceedings

are totally incorrect. While stressing on the merits of the

matter, the learned counsel argues that Rule 9(2) (b) of the

A.P. Revised Pension Rules, 1980, which is extracted in the

writ affidavit and the law on the subject is squarely

applicable. The four year period starts from the date of

communication of the proceeding according to him.

Therefore, he submits that the present case is hopelessly

barred by time. Learned counsel for the petitioner also relied

on C.Kishan Rao v. Secretary to Government, Panchayat

Raj and Rural Development Department, Government of

A.P., Hyderabad1 and State of Bihar and others v. Mohd.

Idris Ansari2 in support of his case.

In reply to this, learned Government Pleader for

Services-I argued for the State-respondents. According to

him, the proceedings were initiated by an article of charge

that is issued by the Government of Telangana on

08.06.2017. Therefore, the learned Government Pleader

argues that the Rule 9(2) (b) does not apply. He points out

that the disciplinary proceedings were initiated one month

before the petitioner retired from service. He also argues that

the report was received in January, 2014 and the proceedings

were initiated on 08.06.2017 and hence as per him, it is

within time and before the petitioner's retirement. Learned

2003 (6) ALD 346

1995 supp (3) SCC 56

Government Pleader submits that huge loss of 44.20 lakhs

was caused to the State because of the inaction of the

petitioner and that therefore, the enquiry should be allowed to

go ahead and the proceedings should not be quashed. He

also argues that the incident was noticed by the Government

of Andhra Pradesh on 08.06.2017 and the events from 2017-

2020 which caused the delay are described at page 8 of his

counter affidavit.

Learned counsel argues that because of the division of

the State of Andhra Pradesh into residuary State of Andhra

Pradesh and Telangana, some administrative difficulty arose

and after seeking clarification, the Government of Andhra

Pradesh issued the charge memo on 09.09.2020. Therefore,

learned Government Pleader vehemently argues that since a

huge loss is caused to the State exchequer, the enquiry

should be allowed to go ahead and should not be stalled in

any way.

This Court after hearing both the learned counsel

notices that as the petitioner has retired from service, the

Andhra Pradesh Revised Pension Rules, 1980 are applicable.

The applicability of the Rules is not denied and the relevant

portion of the Rule that falls for consideration is reproduced

in page 11 of the writ. It is as follows:

9(2) (b) The Departmental proceedings, if not instituted while the Government servant was in

service, whether before his retirement or during his re-employment:

(i) shall not be instituted save with the sanction of the Government;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the State Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

It is also not in dispute that (1) the incident for which

the petitioner is being charged took place in the years 2008-

2009. (2) the vigilance and enforcement report on which the

State of Andhra Pradesh relies is dated 03.01.2014. (3) The

petitioner retired on 31.07.2017 and (4) the actual service of

the memos was in June, 2020.

Although the State relied upon G.O.Ms.No.364 dated

08.06.2017, it is very specifically asserted by the petitioner

that this was not served on him at all. A reading of the other

facts and circumstances during the case makes it clear that

this G.O. was never served upon the petitioner. The counter

affidavit also makes it clear that the ultimate service of the

Articles of charge was by the two impugned memos dated

09.06.2020 only (G.O.Ms.Nos.734 and 735). Thus, it is clear

that prior to 09.06.2020, no Article of charge were served on

the petitioner. This is asserted in the writ affidavit also.

A reading of Rule 9(2)(b) of A.P. Revised Pension Rules,

1980, which is extracted earlier, makes it clear that the

departmental proceedings can be instituted after retirement

with Government consent only, (2) shall not be in support of

an event which took place more than four years before that

institution. Sub-rule (6) of Rule 9 is also important. It clearly

states that for the purpose of this rule (a) the departmental

proceedings shall be deemed to have been instituted on the

date on which the statement of charge is issued to the

Government servant or pensioner (emphasis supplied). The

plain language interpretation of this Rule makes it clear that

the proceedings shall be deemed to have been instituted only

on 09.09.2020 in this case. Admittedly, the issue relates to

June, 2009 and the G.Os are served eleven (11) years

thereafter in September, 2020. Therefore, this Court clearly

finds that the same are barred under relevant Rule. The case

law relied upon by the learned counsel includes a Division

Bench judgment in C.Kishan Rao (1 supra), wherein the very

same Rule fell for consideration. The Hon'ble Supreme Court

of India in Mohd. Idris Ansari's case (2 supra) also

considered the similar Rule in the State of Bihar, which is in

pari materia with the current Rule. The Hon'ble Supreme

Court clearly held that the same is barred by time. The

proceedings were held to be wholly incompetent. In this

Courts opinion, both the judgments are applicable to the

current facts.

The explanation given by the State and the effort made

by the Government Pleader for Services-I while arguing are

laudable, but the fact remains that the relevant rule clearly

prescribes the upper time limit within which proceedings

have to be initiated. It may operate harshly sometimes but it

has to be implemented. Taking an analogy from the

Limitation Act, under section-9, once time begins to run, it

does not stop. In addition, the petitioner can only have

knowledge of Articles of charge when they are served on him.

If the proceedings are prepared and kept in the file of the

State, it cannot be said that they are validly served. While

bifurcation, examination of the issue and correspondence

between the Governments etc., may be true, they cannot stop

the march of time which has begun on the date of his

retirement. The law expects swift decisive action and frowns

upon inaction. The inaction or the failure to take action is

clear.

After considering the law, the submissions, the Rule

position and the dates, this Court has to hold that the

petitioner is entitled to the reliefs as prayed for.

Both G.O.Ms.No.734 and consequential G.O.Ms.No.735

dated 09.09.2020 are set aside. The disciplinary,

departmental proceedings are quashed. It is also held that

the petitioner is entitled to pension at the applicable rules

and as per his eligibility. All the terminal benefits of the

petitioner such as full pension, encashment of earned leave,

the retirement gratuity, commuted value of pension etc., are

directed to be paid to the petitioner within four (4) weeks from

the date of receipt of this order. As far as the interest is

concerned, this Court also holds that the petitioner has been

deprived of use of his money for no fault of his. For a retired

Government servant, pension is a major source of income and

sustenance. The benefits that he has to receive are the

benefits of long years of service. Since the reading of the

counter affidavit makes it clear that the petitioner is not at

fault and the delay is only to the department, the petitioner is

also entitled to be paid these amounts on the applicable

interest at 8% per annum from the 30th day of the petitioner's

retirement, till the date of actual payment. Interest is claimed

at 12% but in a recent judgment of the Hon'ble Supreme

Court in State of Andhra Pradesh and another v.

Dinavahi Lakshmi Kameswari3, it was held that interest

cannot be used to penalise the State. Balancing the

submissions, interest is awarded @ 8% per annum as the

record is clear and the State is responsible for the delay.

With these observations, the writ petition is allowed. No

order as to costs. As a sequel, the miscellaneous petitions if

any shall stand dismissed.

                                     ___________________________
                                       D.V.S.S.SOMAYAJULU, J
Date:     .08.2021
KLP


3   2021 SCC Online SC 237