Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Sri J.Ganesh, on 1 March, 2023
HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
Writ Petition No.20898 of 2020
ORDER: (per Hon'ble Justice M.Ganga Rao)
The State of Andhra Pradesh represented by its authorities filed
this writ petition being aggrieved by the order of the Andhra Pradesh
Administrative Tribunal dated 17.07.2018 in O.A.No.3045 of 2017
wherein and whereby the Tribunal allowed the OA setting aside
G.O.Ms.No.72 dated 03.11.2017 whereby, in exercise of the powers
conferred under Clause (x) of Rule 9 read with sub-Rule (i) of Rule 25 of
A.P.Civil Services (CC&A) Rules, 1991 read with G.O.Ms.No.2 dated
04.01.1999, the respondent was dismissed from service on the ground
that he was sentenced to suffer Rigorous Imprisonment for five years and
to pay a fine of Rs.1,00,000/- in default to suffer simple imprisonment
for one year for the offence under Section 13(1) (3) read with 13 (2) of
Prevention of Corruption Act vide judgment dated 15.05.2015 in
C.C.No.21 of 2006 by the Special Judge for SPE & ACB Cases,
Visakhapatnam.
2. Brief facts of the case are that the respondent was initially
appointed as Forest Range Officer on 08.11.1993 and thereafter, reached
the position of Assistant Conservator of Forests on 08.06.2014. During
the year 2002 while he was working as Forest Range Officer, the ACB
personnel conducted raid and found that the respondent was in
possession of the assets disproportionate to the known sources of income
and registered a case in Cr.No.5/RC-WLR/2002 U/s 13 (2)a r/w 13 (1) (e)
of the Prevention of Corruption Act. The Government vide G.O.Ms.No.13
dated 27.1.2006 accorded permission for prosecution of the respondent
in court of law. It appears that pending trial, the Government vide
G.O.Ms.No.104 dated 10.10.2007 deleted the expenditure, income and
assets of the family members and others. The Accused Officer's
expenditure during the check period was arrived at Rs.94,44,640.02 ps
and his total income for the said period was arrived at Rs.33,55,121/-.
The excess expenditure of the Accused Officer was worked out to
Rs.60,88,519.02 ps. and disproportionate assets of the Accused Officer
was arrived at Rs.1,65,20,480.34 ps. Having examined the
recommendations, the Government accorded permission to the Director
General, ACB for prosecution of the accused officer according to law.
Based on G.O.Ms.No.104 dated 10.10.2007, the Government vide Memo
No.5447/FOR.IV(1)/2002-9 dated 25.01.2018 requested the Director
General, ACB to take necessary further action in the matter. When the
1st respondent was not continued in service, he filed O.A.No.2703 of 2016
before the Tribunal to allow him to continue in service as the sentence of
imposition of punishment is suspended in Crl.MP.No.721 of 2015 in
Crl.Appeal No.473 of 2015 dated 21.5.2015. The said OA was closed on
16.9.2016 as the Government has taken a decision in
Lr.No.5547/For.IV/A1/2002 dated 31.5.2016 to continue the applicant
in service till the disposal of the Criminal Appeal. The Government vide
G.O.Ms.No.156 dated 28.11.2008 cancelled the orders issued in favour of
the respondent in G.O.Ms.No.104 dated 10.10.2007. Being aggrieved by
the same, the respondent approached the Tribunal by filing O.A.No.7373
of 2010. The said OA was allowed on 4.4.2013 along with VMA.No.1619
of 2012 setting aside G.O.Ms.No.156 dated 28.11.2008 on the ground
that the said GO is issued without notice to the respondent and liberty is
given to the authorities to issue notice and take further action. The
Government vide G.O.Ms.No.72 dated 3.11.2017 exercising the power
conferred under Clause (x) of Rule 9 read with Sub-rule (i) of Rule 25 of
APCS (CC&A) Rules, 1991 read with G.O.Ms.No.2 dated 04.01.1999
imposed a punishment of dismissal from service on the respondent as he
was found guilty of the charges and convicted by the Special Judge for
SPE&ACB Cases, Visakhapatnam vide judgment dated 15.5.2015 in
C.C.No.21 of 2006. The said GO was set aside by the APAT by allowing
the impugned OA.No.3045 of 2017 directing the authorities to continue
the respondent in terms of letter No.5547/For.IV/A1/2002 dated
31.5.2016 and the question of consequential benefits for the period he is
out of service will be decided only based on the outcome of the Criminal
Appeal. Being aggrieved by the same, the State Government approached
this Court by filing the present writ petition.
3. Learned Special Government Pleader appearing for learned
Advocate General submits that the Government after careful
consideration of the matter and judgment in C.C.No.21 of 2006 dated
15.5.2015 passed by the Special Court for SPE&ACB Cases,
Visakhapatnam and also the interim order passed in Criminal Appeal
No.473 of 2015 issued G.O.Ms.No.72 dated 3.11.2017 dismissing the
respondent from service exercising the powers conferred under Clause (x)
of Rule 9 read with Sub-rule (i) of Rule 25 of APCS (CC&A) Rules, 1991
read with G.O.Ms.No.2 dated 04.01.19999. He relied upon the judgment
of the Apex Court in Deputy Director of Collegiate Education
(Administration), Madras Vs. S. Nagoor Meera1, wherein it is observed
thus:
"What is really relevant thus is the conduct of the government
servant which has led to his conviction on a criminal charge. Now, in
this case, the respondent has been found guilty of corruption by a
criminal court. Until the said conviction is set aside bythe appellate
or other higher court, it may not be advisable to retain such person in
service. As stated above, if he succeeds in appeal or other
proceedings, the matter can always be reviewed in such a manner
that he suffers no prejudice."
In K.C.Sareen Vs. CBI, Chandigarh2, the Apex Court held thus:
11. The legal position, therefore, is this : Though the power to
suspend an order of conviction, apart from the order of sentence, is
not alien to Section 389(1) of the Code, its exercise should be limited
to very exceptional cases. Merely because the convictional person files
an appeal in challenge of the conviction the court should not suspend
the operation of the order of conviction. The court has a duty to look
at tall aspects including the ramifications of keeping such conviction
in abeyance. It is in the light of the above legal position that we have
to examine the question as to what should be the position when a
public servant is conviction of an offence under the PC Act. No doubt
when the appellate Court admits the appeal filed in challenge of the
conviction and sentence for the offence under the PC Act, the
superior Court should normally suspend the sentence of
imprisonment until disposal of the appeal, because refusal thereof
would render the very appeal otiose unless such appeal could be
heard soon after the filing of the appeal. But suspension of conviction
of the offence under the PC Act, de hors the sentence of
imprisonment as a sequel thereto, is different matter.
12. Corruption by public servants has now reached a monstrous
(1995) 3 SCC 377
(2001) 6 SCC 584
dimension in India. Its tentacles have started grappling even the
institutions created for the protection of the republic. Unless those
tentacles are intercepted and impeded from gripping the normal and
orderly functions of the public and impeded from gripping the normal
and orderly functions of the public offices, through strong legislative,
executive as well as judicial exercises the corrupt public servants
could even paralyse the functioning of such institutions and thereby
hinder the democratic policy. Profit ration of corrupt public servants
could garner momentums to cripple the social order of such men are
allowed to continue to manage and operate public institutions. When
a public servant was found guilty of corruption after a judicial when a
adjudicatory process conducted by a court of law, judiciousness
demands that he should be treated as corrupt until he is exonerated
by a superior Court. The mere fact that an appellate Court or
revisional forum has decided to entertain his challenge and to go into
the issues and findings made against such public servants once
again should not even temporarily absolve him from such findings. If
such a public servant becomes entitled to hold public office and to
continue to do official acts until he is judicially absolved from such
findings by reason of suspension of the order of conviction it is public
interest which suffers and sometimes even irreparably. When a public
servant who is convicted of corruption is allowed to continue to hold
public office it would impair the morale of the other persons manning
such office, and consequently that would erode the already shrunk
confidence of the people in such public institutions besides
demoralising the other honest public servants who would either be
the colleagues or subordinates of the convicted person. If honest
public servants are compelled to take orders from proclaimed corrupt
officers on account of the suspension of the conviction the fall out
would be one of shaking the system itself. Hence it is necessary that
the court should not aid the public servant who stands convicted for
corruption charges to hold only public office until he is exonerated
after conducting a judicial adjudication at the appellate or revisional
level. It is a different matter if a corrupt public officer could continue
to hold such public office even without the help of a court order
suspending the conviction.
13. The above policy can be acknowledged as necessary for the
efficacy and proper functioning of public offices. If so, the legal
position can be laid down that when conviction is on a corruption
charge against a public servant the appellate Court or the revisional
court should not suspend the order of conviction during the
pendency of the appeal even if the sentence of imprisonment of
suspended. It would be a sublime public policy that the convicted
public servant is kept under disability of the conviction in spite of
keeping the sentence of imprisonment in abeyance till the disposal of
the appeal or revision.
14. We are fortified in holding so by two other decisions of this
Court. One is Deputy Director of Collegiate Education v. S. Nagoor
Meera. The following observations of this Court are apposite now :-
" The more appropriate course in all such cases is to take action
under clause (a) of the second proviso to Article 311(2) once a
government servant is convicted of a criminal charge and not to wait
for the appeal or revision, as the case may be. If, however, the
Government servant-accused is acquitted on appeal or other
proceeding, the order can always be revised and if the Government
servant is reinstated, he will be entitled to all the benefits to which he
would have been entitled to, had he continued in service. The other
course suggested, viz., to wait till the appeal, revision and other
remedies are over, would not be advisable since it would mean
continuing in service a person who has been convicted of a serious
offence by a criminal court."
4. The Learned Special Government Pleader would further contend
that the Tribunal on erroneous consideration of the issue came to the
conclusion that the impugned G.O.Ms.No.72 is passed in arbitrary
manner without considering the earlier G.O.Ms.No.4 dated 10.10.2007
directing to continue the petitioner in service. The Tribunal has not
taken into consideration that G.O.Ms.No.156 dated 28.11.2008 was
issued cancelling G.O.Ms.No.104 dated 10.10.2007 and the matter is
remanded for fresh consideration. G.O.Ms.No.104 is merged in
G.O.Ms.No.156 and that GO is set aside by the Tribunal. But by setting
aside the said GO, the earlier G.O.Ms.No.104 won't be revived. However,
G.O.Ms.No.104 dated 10.10.2007 is passed only for reducing the
expenditure and letter No.5547/For.IV/A1/2002 dated 31.5.2016 was
issued not by the competent authority exercising powers under the
relevant provisions of the CCA Rules. Hence, it is no authority under the
eye of law to be considered. Based on the said letter, continuation of the
respondent in service is illegal. Based on the letters issued by the
incompetent authority, G.O.Ms.No.72 dated 3.11.2007 could not be said
to be illegal, arbitrary. It is not a sound reasoning by the Tribunal to set
aside G.O.Ms.No.72 wherein the respondent is dismissed from service.
5. Sri S.S.Prasad, learned Senior Counsel appearing for Smt C.
Sindhu Kumari, Advocate on Record appearing for the Respondent,
would contend that the ACB personnel conducted raid and found that
the respondent is in possession of the assets disproportionate to the
known sources of income to a tune of Rs.12,65,20,480.34 ps and
registered a case in Cr.No.5/RC-WLR/2002 U/s 13 (2)a r/w 13 (1) (e) of
the Prevention of Corruption Act. The Government vide G.O.Ms.No.13
dated 27.1.2006 accorded permission for prosecution of the respondent
in court of law. The respondent while enclosing the orders of the Income
Tax Appellate Tribunal, Visakhapatnam in ITA.Nos.129/Vizag/2005,
397/Vi;zag/2006 & 395/2006 dated 02.12.2009, filed Review petition
before the Government requesting to delete the assets, expenditure,
income possessed by his father, wife and his famly members and others
and to withdraw the prosecution orders sanctioned against him and
accordingly, the Government issued G.O.Ms.No.104 dated 10.10.2007
deleting the expenditure, income and assets of the family members and
others. However, the Government issued G.O.Ms.No.156 dated
28.11.2008 cancelling G.O.Ms.No.104 dated 10.10.2007, which was
challenged before the Tribunal in O.A.No.7373 of 2010. The said OA was
allowed by the Tribunal and it has become final. The Special Court for
SPE&ACB Cases, Visakhapatnam without taking all these into
consideration convicted the respondent in C.C.No.21 of 2006 dated
15.5.2015. Assailing the said order, the respondent filed Crl.Appeal
No.473 of 2015 before the High Court. The High Court by interim order
dated 21.5.2015 suspended the sentence against the respondent.
However, the Government issued letter dated 31.5.2016 deciding to
continue the respondent in service till final decision of the High Court in
Crl.Appeal No.473 of 2015 is taken and the said decision is in exercise of
its power which is traceable to the power conferred under Rule 25 of the
APCS (CC&A) Rules, 1991 and merely because the said decision was not
in the form of GO, it cannot be contended that it was not the decision of
the Government. The action of the State Government in issuing
G.O.Ms.No.72 dated 03.11.2017 is illegal and unjust inasmuch as the
Government is expected to exercise its discretion under Rule 25 of the
APCS(CC&A) Rules, 1991 and dismissal of an employee on conviction in
criminal case is not automatic. The Government cannot exercise power
under Rule 27 once again, once it has exercised its power under Rule 25,
it becomes functus officio and has no power to review its own order
passed under Rule 25 of the CCA Rules. There are absolutely no valid
and tenable grounds raised in the writ petition warranting interference
with the order of the Tribunal and it is perfectly legal and justifiable. He
would further contend that the writ petition is also liable to be dismissed
on the ground of latches.
6. Having considered the facts and circumstances of the case,
submissions of the counsel and perused the record, this Court found that
the ACB personnel conducted raid and found that the respondent is in
possession of the assets disproportionate to the known sources of income
and registered a case in Cr.No.5/RC-WLR/2002 U/s 13 (2)a r/w 13 (1) (e)
of the Prevention of Corruption Act. Pending trial, the respondent was
suspended from service. During the trial, the Government issued
G.O.Ms.No.104 dated 10.10.2007 deleting the expenditure, income and
assets claimed by the family members and others at their own risk out of
their own sources of income and responsibility and the same cannot be
tagged to the income of the respondent. Based on the said GO,
prosecution has not taken any decision to modify the charges before the
SPE&ACB cases, Visakhapatnam. It is for the court to accept the
petition of the prosecution to modify or alter the charge sheet filed by the
prosecution under the provisions of Cr.P.C based on the investigation
against the Accused Officer. Based on the said GO, the Government
issued Letter No. No.5547/For.IV/A1/2002 dated 31.5.2016, which is
found to be without any statutory power conferred on the officers hence,
the same could not be countenanced. However, the 2nd petitioner is
acting upon the said letter and reinstated the respondent and continued
him in service. The Tribunal in O.A.No.7373 of 2010 with VMA.No.1619
of 2012 having not considered that G.O.Ms.No.156 dated 28.11.2008 was
issued cancelling the earlier G.O.Ms.No.104 dated 10.10.2007, set aside
the same and remanded the matter for fresh consideration. The
Government exercising the powers conferred under Clause (x) of Rule 9
read with Sub-rule (i) of Rule 25 of APCS (CC&A) Rules, 1991 read with
G.O.Ms.No.2 dated 04.01.19999 has issued G.O.Ms.No.72 dated
03.11.2027 imposing a punishment of dismissal from service as he was
found guilty of the charges and convicted by the Special Judger for
SPE&ACB Cases, Visakhapatnam vide judgment dated 15.5.2015 in
C.C.No.21 of 2006. The respondent having been convicted by the
competent Criminal Court in C.C.No.21 of 2006 dated 15.5.2015, if
reinstated and continued in service, would sent wrong signals to the
society that with the money power and political power all the things could
be changed in the Government level and even if such persons could also
be continued in service on the ground of violation of technicalities, it
cannot be found to be justified. For the reasons stated above, the
impugned order is liable to be set aside.
7. Accordingly, the Writ Petition is allowed, setting aside the order
passed by the Tribunal dated 17.07.2018 in O.A.No.3045 of 2017. No
costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall
stand closed.
____________________
M. GANGA RAO, J
____________________
V. SRINIVAS, J
Date: .03.2023
CSR
HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
W.P.No.20898 OF 2020
DT: .03.2023
CSR
