S.Chandrasekhar Reddy vs The State Of Telangana And Another
2023 Latest Caselaw 1776 Tel

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 13401 of 2020

Between:

S.Chandra Sekhar Reddy
                                                 ... Petitioner
And

The State of Telangana and others
                                            ... Respondents


        JUDGMENT PRONOUNCED ON: 25.04.2023


      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

1. Whether Reporters of Local newspapers    :        yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?         :       yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?            :   yes



                                        __________________
                                         SUREPALLI NANDA, J
                                                        WP_13401_2020
                              2




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                 W.P. No. 13401 of 2020
% 25.04.2023

Between:

# S.Chandra Sekhar Reddy
                                                ..... Petitioner
                             And


$ The State of Telangana and others
                                           .....Respondents


< Gist:
> Head Note:


! Senior Counsel for the Petitioners: Sri S.Satyanarayana Rao
^ Standing Counsel for Respondents : G.P. for Services II




? Cases Referred:
  1. (2007) 13 SCC 270
  2. (2006) 12 SCC 33
  3. 2008 (3) SCC 44
                                                                  WP_13401_2020
                                   3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                     W.P. No. 13401 of 2020

ORDER:

Heard learned counsel for the petitioner and

learned Government Pleader for Services II.

2. This Writ Petition is filed to issue an appropriate writ

order or direction more particularly one in the nature of writ

of Mandamus by declaring the entire action of the

respondents, particularly the entire action of the 1st

respondent, in issuing present impugned order vide

G.O.Rt.No.83, Scheduled Caste Development (Vig.)

Department, dated 25.06.2020, wherein withdrawing the

earlier punishment orders issued vide G.O.Rt.No.85, SCD

(Ser.A2) Department, dated 17.04.2019 by way of review by

invoking Rule 40 of TS (CC&A) Rules, 1991 and thereon

issuing memo No.5008/SCD.Vig./2012, dated 25.06.2020,

(communicated on 12.08.2020) wherein imposition of 100%

cut in pension besides withholding entire gratuity and

recovery of misappropriated amount is as highly illegal,

arbitrary and violative of all principles of natural justice, to

that of Rule 40 of TS (CC&A) Rules, 1991, the petitioner being WP_13401_2020

pensioner is impermissible and set aside both the impugned

orders and consequently direct the respondents to forthwith

release his pension and other retiral benefits of the petitioner

with penal interest from the date of issuing earlier punishment

orders in G.O.Rt.No.85 SCD (Ser.) Department, dated

17.04.2019 of the 1st respondent till actual payment is made

@ 24 per annum for unnecessary delay caused by the

respondents without reference to the present impugned

orders dated 25.06.2020 of the 1st respondent.

3. The case of the petitioner, in brief, is as follows:

a) The petitioner was initially appointed as Typist w.e.f

12.04.1983 in the BC Welfare Department and subsequently

promoted as Senior Assistant during the year 1986 and

further promoted as Superintendent in the year 2005. Later

the petitioner services were transferred to respondent

organization. The petitioner retired on 31.03.2014 on

attaining the age of superannuation.

b) While the petitioner was working in the office of Deputy

Director (SW) Nalgonda District, he was placed under

suspension vide proceedings dated 18.04.2012 by the 2nd

respondent. Subsequently, departmental proceedings were WP_13401_2020

initiated vide proceedings dated 29.10.2012. The petitioner

submitted explanations on 21.01.2013 and 23.06.2016

denying the alleged charges and ultimately requested to drop

further action.

c) The 1st respondent issued orders vide G.O.Rt.No.212,

dated 31.03.2016 for inaction of common departmental

proceedings against nine individuals. As per G.O.Rt.No.213,

dated 13.04.2016 one Smt Uma Devi, Joint Director was

appointed to conduct regular enquiry and one Sri

P.Rajasekhar was appointed as presenting officer. The

enquiry officer submitted report vide letter dated 03.12.2016.

The 2nd respondent requested the Government to issue

necessary orders against the individuals.

d) The Government vide memo dated 12.12.2018

enclosing report of the enquiry officer issued show cause

notice to the petitioner proposing to impose penalty of 5% cut

in pension for a period of three years and called for

explanation. As such the petitioner submitted explanation on

20.12.2018 requesting to reconsider the issue and drop

proceedings. Without considering the said request, final order

vide G.O.Rt.No.85, dated 17.04.2019 had been issued.

WP_13401_2020

e) Thereafter, the petitioner made a representation dated

24.04.2019 to the Minister concerned, to set aside the penalty

imposed against him. On receipt of the representation of the

petitioner with their endorsement of Minister was forwarded to

the Government. The Government vide its memo No.

729/SCD.Ser.A2/2019-1, dated 31.05.2019, requested the

2ndrespondent to furnish a detailed report in the manner of

remarks on the appeal of the petitioner made to the Minister.

The 2ndrespondent vide his letter Rc.No.A1/1993/2012, dated

to 02.11.2019 furnished detailed report to the 1st respondent

with regard to appeal of the petitioner requesting the

Government to take lenient view on the appeal petition of the

petitioner.

f) In the meanwhile,the Petitioner made another

representation to the 2nd respondent on 19.12.2019

requesting to regularise the suspension and to enable him to

draw his pension and other retiral benefits on the ground that

he and his family members are suffering due to delay in

settling the appeal and the same was forwarded to the

1strespondent for necessary orders.

WP_13401_2020

g) while matters stood thus, the first respondent issued

impugned GO.Rt.No. 83 dated 25.06.2020 where in the

earlier penalty orders were withdrawn by mentioning rule 40

of TS (CC&A) Rules 1991 stating that the Government

reviewed the said orders the same was communicated to the

petitioner on 30.07.2020 contrary to rule 40 of TS (CC&A)

rules 1991.

h) On 25.06.2020 vide Memo No. 5008/SCD.Vig./2012 the

first respondent issued consequential show cause notice by

invoking rule 9 of TS Revised Pension rules 1980 indicating a

penalty of 100% cut in pension besides withholding of entire

gratuity and recovery of misappropriated amount and further

calling explanation from the Petitioner. A bare perusal of the

show cause noticeshows that the first respondent was

predetermined and issued the show cause notice as an empty

formality.

i) The Government already imposed punishment against

the petitioner by invoking power under Rule 9 of TS Revised

Pension Rules, 1980 and therefore, invoking power of review

under Rule 40 of TS(CC&A) Rules, 1991 against a pensioner

does not arise as the said rule is applicable only in case of a WP_13401_2020

Government servant serving in the department. Further, the

government has already imposed a punishment of 5% cut in

pension for a period of three years. The retired government

employees are governed by the revised pension rules and

Rule 9 will operate and therefore, there is no power under

said rule to enhance 100% cut in pension and hence, he

showing the show cause notice to enhance the punishment is

impermissible and without jurisdiction as, the punishment

imposed under Rule 9 of CCA Rules can be revised or

reviewed under Rules 40 & 41 of CCA Rules only in respect of

government servant who is in service.

j) Since the petitioner had already retired from the

service, Government cannot enhance the penalty by invoking

revision under Rule 40 of TS CCA Rules especially when the

said rules don't speak of action on the retired person making

the proposed revision contrary to the law and the same is

without jurisdiction, illegal and as per Rule 41 of CCA

government has to give reasonable opportunity of making

representation against the proposed penalty to the

Government servant and cannot withdraw the earlier order

and it should issue show cause notice proposing punishment WP_13401_2020

of 100% cut in pension as the same is not mentioned under

Rule 41.

J) The petitioner retired from service with effect from

31.03.2014 on attaining the age of superannuation and the

1st respondent issued punishment orders vide GO.Rt.No.85

dated 17.04.2019, withholding his pension and other retiral

benefits even after imposing penalty is certainly bad in law

and the petitioner is entitled for interest over the retiral

benefits at the rate of 24% per annum from the date of

imposing the above punishment till actual payment is made.

k) Hence the action of the 1st respondent in withdrawing

the earlier punishment orders dated 17.04.2019 by invoking

Rule 40 and issuing the impugned orders vide GO.Rt.No. 83,

dated 25.06.2020 is bad in law and the consequential show

cause notice for enhancement of punishment to 100% cut in

pension besides holding entire gratuity and recovery of

misappropriate amount is unsustainable in the eye of law and

illegal. Hence the writ petition.

4. The case of the Respondents, in brief, is as

follows:

WP_13401_2020

a) On noticing certain irregularities in purchase of material

and supplies during the year 2010 - 2012 in the office of

Deputy Director of Social Welfare, Nalgonda District, a

enquiry report was obtained. Grave irregularities such as

misappropriation of funds in purchase and irregular

promotions were revealed in the said preliminary enquiry

report and accordingly, Commissioner placed Deputy Director

and others under suspension and the petitioner was one

among them.

b) Disciplinary action was initiated on nine delinquent

officers including the petitioner by framing charges. The

charges framed against the petitioner are misappropriation of

materials, misappropriation of transport charges and

misappropriation of stitching charges and the procedural

lapse in affecting promotions etc.

c) As more than two Government servants of different

services were involved in this case Government in exercise of

the powers conferred under sub-Rule one and two of Rule 24

of AP Civil Service Rules CCA 1991 vide GO.Rt.No.212

Scheduled Caste Development (Ser.A2) Department dated WP_13401_2020

13.04.2016 ordered disciplinary action on all the delinquent

officers in a common proceeding.

d) After examining the report of the enquiry officer and

after following due procedure issued in GO.Rt.No.85 Schedule

Caste Development dated 17.04.2019 under rule 9 of

Telangana State Revised Pension Rules 1980 a penalty of 5%

cut in pension for a period of three years was imposed against

the petitioner.

e) Under Sub-Rule 9(X) of Rule 9 of A.P. Civil Services

(CCA) Rules, 1991, in all proved cases of misappropriation

and bribery, bigamy and corruption, the penalty of dismissal

from service shall be imposed and as per sub-Rule 3 of Rule 9

of Telangana Revised Pension Rules, 1981 withholding the

entire pension and gratuity or both can be imposed against

the retired Government servant upon being found guilty for

the offence of grave charges of misappropriation, bribery,

bigamy, corruption, moral turpitude and misconduct.

f) The report submitted by enquiring authority against the

charge of misappropriation of Government funds was proved

against the petitioner and the government accordingly, after

considering the entire case found that the penalty imposed WP_13401_2020

was not in accordance with the Government orders and

revised the penalty thereon.

g) As per Rule 40 of AP State Civil Services (CCA) Rules,

1991 Government is empowered to revise the orders and

confirm modify reduce enhance or set aside the proposed

order and that no order imposing or enhancing penalty shall

be made unless Government servant concerned has been

given a reasonable opportunity of making a representation

against the proposed penalty.

h) As per the powers vested on the Government, the

Government took a decision to withdraw the orders and to

enhance the penalty as per the prevailing rules and also a

notice was shared to the petitioner calling for his explanation

on the proposed penalty of hundred percent cut in pension

besides withholding of entire gratuity and recovery of

misappropriated amount and thus, the action of the 1st

respondent is within the powers conferred under relevant

rules.

i) The petitioner retired from service on 31.03.2014 on

attaining the age of superannuation and as such any penalty

shall be as per the Telangana Revised Pension Rules, 1980 WP_13401_2020

only, but the procedure laid down in AP Civil Services CCA

Rules 1991 shall be followed before imposition of such penalty

and moreover, Rule 9 of Telangana Revised Pension Rules,

1980 specifies procedure to be followed for taking up

departmental action against retired government employees

and imposition of penalties.

j) As per Rule 9(2)(a), the departmental proceedings if

instituted while government servant was in service whether

before his retirement or during his reemployment shall, after

the final retirement of the government servant be deemed to

proceed under this rule and shall be continued and concluded

by the authority in the manner as if the government servant

had continued in the service and the disciplinary action

against the petitioner is initiated while he is in service and

hence, any action on disciplinary case pending against the

petitioner shall be taken in the same manner as if he has

continued in service.

k) Hence, the action of the first respondent hearing

reviewing the earlier order vide Rule 40 of AP civil services

rules 1991 is within powers. Hence as the writ petition is

devoid of merits the same is liable to be dismissed and the WP_13401_2020

interim orders passed by this honourable court in IA.1 of

2020 in writ petition 13401 of 2020 be vacated as well.

PERUSED THE RECORD

5. The impugned order vide G.O.Rt.No.83 Schedule

Caste Development (VIG.) Department dated

25.06.2020 reads as under:

In the reference read above, orders were issued imposing penalty of 5% cut in pension for a period of three (3) years on Sri S.Chandrasekhar Reddy, Superintendent (Retired) O/o the Deputy Director (SW), Nalgonda District on the proved charges of mis- appropriation of funds in purchase of materials and supplies, while he was working as Superintendent O/o the Deputy Director (SW), Nalgonda District.

2. Now, Government after review the penalty imposed in the G.O. read above under powers conferred under rule 40 of TS (CC & A) Rules, 1991 hereby decided to withdraw and to enhance the penalty as per rules in force.

3. Accordingly, Government hereby has withdrawn the penalty imposed in G.O.Rt.No.85, SCD (Ser.A2) Dept., Dt.17.4.2019 on Sri S.Chandrasekhar Reddy, Superintendent (Retired) and to order to follow further action as per rules in force.

WP_13401_2020

6. Memo No.5008/SCD.Vig./2012, dated 25.06.2020

issued by the Scheduled Castes Development

Department, Government of Telangana, reads as under:

The Commissioner of Social Welfare, Hyderabad initiated disciplinary action against Sri S.Chandrashekar Reddy, Superintendent (Retired), O/o the Deputy Director (SCD), Nalgonda District, on the alleged irregularities said to have been committed by him in purchase of Material and Supplies and misappropriation of Government funds. The Joint Director, O/o. Director, S.C.Development, Telangana, Hyderabad was appointed as an Enquiry Officer and she has submitted enquiry report.

2. Government, after following due procedure concluded the disciplinary action by imposing penalty of 5% cut in pension for a period of three (3) years on Sri S.Chandrashekar Reddy, Superintendent (Retired), in G.O.1st cited.

3. In the instant case, the charge of mis- appropriation of Govt. funds has been proved during the enquiry. As per orders issued in G.O.Ms.No.25, G.A.(Ser.C) Department dated 03.02.2004 in all proved cases of misappropriation the penalty shall be not less than dismissal from service.

4. Government, subsequently having reviewed the entire matter have withdrawn the above orders issued in G.O. 1st cited and taken a provisional decision to WP_13401_2020

impose 100% cut in pension besides with holding of entire gratuity and recovery of misappropriated amount.

5. Therefore, Sri S.Chandrashekar Reddy, Superintendent (Retired), is directed to show cause as to why a penalty of 100% cut in pension besides with holding of entire gratuity and recovery of misappropriated amount should not be imposed against him for the irregularities committed by him under Rule 9 of TS Revised Pension Rules, 1980. His explanation should reach the Government within (15) days from the date of receipt of the memo, failing which it will be construed that he has no explanation to offer and necessary action will be taken against him based on the material available with the Government.

7. It is very much evident from a plain reading of

Rule 40 and 41 of T.S. (CC&A) Rules, 1991 that the

conditions precedent for pressing into service, the said

provisions of law is the availability and existence of

new material which could not be produced or was not

available at the time of passing order. But, the case on

hand however does not disclose the discovery of any

new material or availability of any new material and in

the considered opinion of this Court having regard to

the mandatory requirement of Rule 41 of the above WP_13401_2020

Rules, the impugned action initiated against the

petitioner by way of issuing the impugned show cause

notice dated 25.06.2022 vide Memo

No.5008/SCD.Vig./2012 is totally malafide, vitiated and

without jurisdiction and the same cannot be sustained

in the eye of law. It is well settled proposition of law that

when a thing is to be done in a particular way, it has to be

done in that way only therefore, the power conferred on the

Government under Rule 40 needs to be exercised in the

manner prescribed in the said rule but not otherwise.

8. On 21.08.2020 in I.A.No.1 of 2020 in

W.P.No.13041 of 2020 the High Court passed orders

observing as under:

"Prima facie, Government has no power to review or revise decision made in exercise of powers vested under Telangana State Revised Pension Rules by invoking Rule 40 of Telangana State (Classification Control and Appeal) Rules, 1991. Balance of convenience is in favour of the petitioner. Interim suspension of G.O.Rt.No.83, Scheduled Caste Development (VIG) Department, dated 25.06.2020 and Memo No.5008/SCD.Vig/2012, dated 25.06.2020. This order does not come in the way of Government for intending WP_13401_2020

to revise the proceedings under challenge and take any other course of action."

DISCUSSION AND CONCLUSION:

9. This Court opines that once a Government

Employee retires, the Government employee will be

governed by the revised pension rules, 1980. It is

borne on record that the Government already imposed

punishment against the petitioner/a pensioner by

invoking power under Rule 9 of Telangana State

Revised Pension Rules, 1980 vide G.O.Rt.No.85 SCD

(Ser.) Department, dated 17.04.2019 and therefore

invoking power of Review under Rule 41 of Telangana

State (CC&A), 1991 against a pensioner does not arise.

A bare perusal of Rule 40 of the Telangana State

(CC&A) Rules, 1991 clearly indicates that the same is

applicable only in the case of the Government Servant

serving in the department or under the department.

10. This Court opines that the Government having

imposed punishment of 5% cut in pension for the

period of three (03) years by invoking Rule 9 of WP_13401_2020

Telangana State Revised Pension Rules, 1980 on

17.04.2019 vide G.O.Rt.No.85 had no power to enhance

to 100% cut in pension. In view of the simple fact that

the punishment imposed under Rule 9 of CCA Rules can

be revised or reviewed applying Rule 40 and 41 of CCA

Rules in respect of the Government Servant who is in

service. Therefore, withdrawing the earlier orders by

invoking rule 40 of Telangana State (CC&A) Rules, 1991

and issuing show cause notice to the petitioner to

enhance the punishment is in itself impermissible and

without jurisdiction as well as contrary to revised

pension rules, 1980.

11. This Court opines that the plea of the counsel for

respondent No.1 as pleaded at para 8 of the counter

affidavit filed by the respondent No.1 that according to

Rule 9(2)(a) of the rules, the departmental

proceedings, if instituted while the Government Servant

was in service whether before his retirement or during

his reemployment, shall, after the final retirement of

the Government Servant, be deemed to be proceedings

under this rule and shall be continued and concluded by WP_13401_2020

the authority by which they were commenced in the

same manner as if the Government Servant had

continued in service is not tenable, in view of the

simple fact that Rule 40 and 41 of the Rules have

application to employees who are in service and the

very invocation of the said provisions of the CCA Rules

for the purpose of invoking review of earlier orders

passed against the petitioner is without jurisdiction and

there cannot be any justification for invoking the same

as pleaded at para 8 of the counter affidavit.

12. A bare perusal of Rule 41 of Telangana State

(CC&A) Rules, 1991 clearly indicates that the said Rule

mandates that no order imposing or enhancing any

penalty shall be made by the Government over the in

service employee, unless the Government servant

concerned has been given reasonable opportunity for

making representation against the penalty proposed. It

is true that the Government can review the order after

giving reasonable opportunity to the Government

Servant concerned, but cannot withdraw the order

already passed and issue show cause notice proposing WP_13401_2020

punishment of 100% cut in pension and in the present

case the same had been done without jurisdiction, Rule

40 of Telangana State (CC&A) Rules, 1991 does not

speak of action on a retired person. This Court opines

that even as per Rule 40 of TS (CC&A) Rules, 1991, the

power of representation can be exercised either on the

reference made by the HOD, if any evidence or new

material, which could not be produced or was not

available at the time of passing order under review or

when revision petition is preferred by the Government

Servant or on suo motu, in the case of enhancing any

penalty after affording reasonable opportunity to the

Government servant for the purpose of imposing major

penalties specified under Rule 9 of CCA Rules.

13. In the present case, admittedly as borne on record

HOD submitted his remarks to take lenient view over

the petitioner on his appeal and in such circumstances,

this Court opines that invoking Rule 40 of CCA Rules

over the petitioner who is a retired employee is totally

unjust, illegal, irrational and above all unwarranted.

WP_13401_2020

14. This Court takes into consideration the fact that the

petitioner retired from service on 31.03.2014 on attaining the

age of superannuation and the 1st respondent ultimately by

concluding the departmental proceedings issued punishment

orders vide G.O.Rt.No.85 date 17.04.2019 and therefore, in

these circumstances withholding the petitioner's pension and

other retiral benefits even after imposing penalty is certainly

vindictive.

15. The Hon'ble Apex Court in Judgment reported in

"Union of India v. Vicco Laboratories" in (2007) 13 SCC

270 observed in para 26 as under:

"Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either WP_13401_2020

without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out."

16. The Hon'ble Apex Court in Judgment reported in

"M/s. Seimens Limited v. State of Maharashtra" in

(2006) 12 SCC 33 observed in para 10 as under:

"Although ordinarily a writ court may not exercise

its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Daft Sharma and another. AIR 1987 SC 943, Special Director and another v. Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and Union of India and anotherv. Kunisetty Satyanarqyana, 2006 (12) SCALE 262], but the question herein has to be considered from a WP_13401_2020

different angle, viz., when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and others v. Union of India and others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause."

17. In S.K. DUA v State of Haryana reported in

2008(3) SCC 44 the Apex Court at para 14 observed as

under:

"But even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retrial benefits are not in the nature of bounty is in our opinion, well founded and needs no authority in support thereof."

18. This Court opines that the impugned show cause notice

issued to the petitioner vide Memo No.5008/SCD.Vig./2012

dated 25.06.2020 cannot be sustained since the Court is of

the considered opinion that the very action of issuing show WP_13401_2020

cause notice under Rule 40 of the Rules is totally one without

jurisdiction.

19. Taking into consideration of all the above referred facts

and circumstances, and the law laid down by the Apex Court

in (1) Union of India v. Vicco Laboratories" in (2007) 13

SCC 270 (2) M/s. Seimens Limited v. State of

Maharashtra" in (2006) 12 SCC 33 (3) S.K. DUA v State

of Haryana reported in 2008(3) SCC 44, the writ petition

is allowed, setting aside the impugned order vide

G.O.Rt.No.83 Schedule Caste Development (Vig.) Department

dated 25.06.2020 and also the consequential Memo

No.5008/SCD.Vig./2012 dated 25.06.2020. The respondents

are further directed to release all the retiral benefits due to

the petitioner at the rate of 24% per annum from the date of

imposing the punishment dated 17.04.2019 till actual

payment is made, within a period of three weeks from the

date of receipt of a copy of the order. However, there shall

be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

                                            _____________________
                                             SUREPALLI NANDA, J
Date:     25.04.2023
                                WP_13401_2020





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