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Judgment
L. Narasimha Reddy, J.—These two writ petitions are directed against the order, dated 18.03.2013, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A. No. 4873 of 2010. For the sake of convenience, the parties herein are referred to as arrayed in W.P. No. 24927 of 2013. In a way, this case discloses the highhandedness on the part of the successive officers of the administration at higher levels against a petty employee i.e. Junior Assistant, in the office of the District Panchayat Officer, Karimnagar, the 3rd respondent. Their effort was to cover the illegality committed by an I.A.S. Officer, holding the post of District Collector and the District Panchayat Officer. The curious part of it is that having prepared a plan to deflect the gravity, they have exhibited their skills of administration just to implicate a small employee.
The petitioner was working as Junior Assistant in the office of the 3rd respondent herein. About 21 persons were working on daily wage basis in Husnabad Major Gram Panchayat. The issue pertaining to the regularization in terms of the Government orders issued from time to time came for consideration before the 3rd respondent. He submitted the proposals before the District Collector. The District Collector, in turn, required the 3rd respondent to seek necessary clarification and instructions from the Commissioner of Panchayat Raj and Rural Employment, Hyderabad, the 2nd respondent herein.
Even when that file was under process, another proposal emerged from the office of the 3rd respondent to the District Collector. On consideration of the same, the District Collector accorded approval for regularization of the services of 21 daily wage employees. The orders of regularization were also issued to the employees.
At a later point of time, it was noticed that the orders from the District Collector were obtained, even while the matter was under consideration by the 2nd respondent. Hence, proceedings were initiated against the 3rd respondent, the Superintendent in his office, and the writ petitioner, who was working as Junior Assistant. The allegation against the petitioner was that he submitted the proposal for the second time knowing fully well that the proposal mooted earlier is under consideration before the 2nd respondent. He submitted an explanation narrating various events in the matter. A Deputy Commissioner, Office of the 2nd respondent, was appointed as an Enquiry Officer. He submitted his report, holding that the charges framed against the 3rd respondent, Superintendent and the petitioner, are proved. It is, however, brought to the notice of this Court that the 3rd respondent was exonerated of the charges framed against him, the Superintendent was imposed the punishment of 20% cut in the pension. The 3rd respondent issued proceedings, dated 15.05.2002, imposing the punishment of compulsory retirement against the petitioner. Challenging the said order, the petitioner filed O.A. No. 7345 of 2002.
Through a detailed order, dated 14.07.2006, the Tribunal disposed of the O.A., leaving it open to the petitioner to approach the concerned authorities for redressal of his grievance by way of an appeal. Accordingly, the petitioner preferred an appeal before the Principal Secretary, Panchayat Raj and Rural Development, the 1st respondent, on 28.08.2006.
On receipt of the representation/appeal from the petitioner, the Officer, who held the office of the 1st respondent, at the relevant point of time, has chosen to issue a show cause notice, dated 06.12.2008, requiring the petitioner to explain as to why the punishment be not enhanced to the one of removal from service. The petitioner submitted his explanation to the same by raising several contentions. Not satisfied with that, the 1st respondent, this time a different Officer, passed orders in G.O.Ms. No. 66, dated 11.02.2010, imposing the punishment of removal from service.
Challenging G.O.Ms. No. 66, dated 11.02.2010, the petitioner filed O.A. No. 4873 of 2010 before the A.P. Administrative Tribunal. Through its order, dated 18.03.2013, the Tribunal allowed the O.A., setting aside the order of punishment. It has also taken the view that the punishment imposed against the petitioner, is disproportionate and modified the same from the one of removal to that of withholding of five increments with cumulative effect.
While W.P. No. 24476 of 2013 is filed by the respondents in the O.A., W.P. No. 24927 of 2013 is filed by the applicant therein.
Sri Kasa Jaganmohan Reddy, learned counsel for the petitioner, submits that the order passed by the 1st respondent in G.O.Ms. No. 66, dated 11.02.2010, is without jurisdiction, and in a way, is vindictive in nature. He contends that when the only purpose for which the Tribunal required the petitioner to submit the appeal was for reduction of the punishment of compulsory retirement, there was absolutely no basis for the 1st respondent or the respective Officers, who held that office from time to time, in exhibiting their utter contempt both, towards the Tribunal and the petitioner and imposing the higher punishment of removal.
Learned counsel submits that the arbitrariness and unreasonableness on the part of respondents 2 and 3 is evident from the fact that the authority, who has taken the so-called illegal decision for regularizing the services of 21 daily wage employees, was left scot free, whereas the lowest employee in the administration who has just to obey the commands of the head of the institution i.e., the 3rd respondent, was inflicted the maximum punishment, that too, violating all settled principles of law. He further submits that in O.A. No. 7345 of 2002, the Tribunal has discussed at length the respective roles played by various authorities, and taking the view that the; whole approach is virtually untenable and left it open to the respondents to reconsider the matter, if an appeal is preferred; and even after the said finding became final, the 1st respondent has exhibited almost dictatorial tendencies in imposing the maximum punishment. He further submits that it was the very 1st respondent that has exonerated the then District Panchayat Officer completely, even though the charges against him were held proved.
Learned Government Pleader for Services-II submits that the order passed by the Tribunal cannot be sustained in law. He submits that it is always competent for the Government to enhance the punishment, provided the prescribed procedure is followed. He contends that the petitioner was the root cause for the unlawful confirmation of the regularization of services of as many as 21 persons and had he been careful, a situation wherein the orders of confirmation had to be issued, and withdrawn at a later point of time, could have been averted. He submits that the order passed by the Tribunal in O.A. No. 4873 of 2010, is patently illegal, since it cannot, by itself, reduce the punishment. He submits that even where a Court or Tribunal finds that the punishment imposed against an employee is shockingly disproportionate, the maximum that can be done is to require the disciplinary authority to reconsider the issue, and in stead, the punishment was reduced straight away. He contends that the order passed in the O.A., cannot be sustained in law or on facts.
The basic facts that gave rise to the filing of writ petition have already stated with the permitted amount of brevity. The petitioner was working at the relevant point of time, as Junior Assistant in the office of the 3rd respondent. Obviously, on the instructions given by the 3rd respondent, he processed the file and placed the same before the Superintendent, who in turn, has to take the matter to the 3rd respondent. When ultimately, the file reached the District Collector, he took the view that the directions of the 2nd respondent are to be obtained.
The file was moved once again before the District Collector by the 3rd respondent for the same purpose. Orders directing regularization of the services of 21 daily wage employees were passed by the District Collector. It is only at a later point of time that it was noticed that the services of such persons ought not to have been regularized. Any sensible administrator, if at all, would find fault with the person, who has taken the ultimate decision. If for any reason, the matter has to be examined further, at the most, the officer who submitted the proposal to the District Collector, viz., the 3rd respondent, has to be proceeded. However, respondents 1 and 2 did not choose to utter a word against the District Collector, who committed the so-called illegality. Their attention was focused on the 3rd respondent, the Superintendent of the office and the petitioner.
The role that can be played by a Junior Assistant, in matter of this nature is not difficult to imagine. Except that he has to compile the relevant proceedings or orders and place them before the Superintendent, he has no other role to play. It is only on being satisfied that the matter needs to be taken to the head of the office, that the Superintendent would put note before the 3rd respondent.
The 3rd respondent was very much aware of the fact that on an earlier occasion, he mooted the proposals before the District Collector and on being required by the latter, he has addressed a letter to the 2nd respondent soliciting opinion. He committed patent illegality in submitting the proposals to the District Collector once again. It needs to be borne in mind that the proposals are put before the District Collector, through specific proceedings in the name and signature of the 3rd respondent. The petitioner has no direct access either to the 3rd respondent, much less to the Collector. Assuming that there was any justification on the part of the 3rd respondent in submitting the proposal for second time, the District Collector was supposed to exhibit care and caution, in acting upon it.
Since the regularization of as many as 21 persons was involved, a detailed enquiry was ordered and rightly so by the 1st respondent. An Officer of the rank of Deputy Commissioner was appointed as an Enquiry Officer by the 1st respondent. In his report, the Enquiry Officer held that the charges against all the three officials were proved. The arbitrariness of highest order or nepotism of their claim i.e. Indian Administrative Service, was exhibited by omitting the District Collector from the proceedings, by the then Secretary of Panchayat Raj Department. There cannot be a better instance of discrimination and arbitrariness, than this. Unfortunately, it is on account of the unusual protection being accorded by the senior officials in the administration that the irregularities or illegalities of highest order are taking place with impunity and to show to the public that they do not tolerate such acts, they target the petty persons, like the petitioner.
Though the findings of the Enquiry Officer were that the charges are proved against the 3rd respondent, Superintendent and the petitioner, arbitrariness of highest order was exhibited here also, in the same order of priority. The 3rd respondent was totally exonerated with a hand wash of warning; the Superintendent was imposed the punishment of 20% cut in the pension and the petitioner, who was in service, was deprived of his livelihood by directing compulsory retirement.
In O.A. No. 7345 of 2002, filed by the petitioner, a detailed discussion was undertaken after perusing note file and other connected record. Reference was made to the relevant precedents. The Tribunal ultimately held as under:
Keeping in view the facts and circumstances of the case and the averments made by both the parties and the Court judgments on this issue, I have come to the conclusion that the applicant has been imposed excessively harsh punishment i.e., the major punishment of compulsory retirement from service for the irregularity committed by him and others. The respondent Government is certainly entitled to award any punishment deemed fit. However, the ultimate punishment of loss of secure job and livelihood should be the last resort. Other penalties are also available to the respondents. The prayer of the applicant deserves consideration. Therefore, the O.A. is disposed of by directing the applicant to approach the concerned authorities for redressal of his grievance i.e. for his reinstatement into service, by way of an appeal within one month from the date of receipt of a copy of this order and the concerned authorities are directed to take a decision on the appeal of the applicant and pass appropriate orders within a period of three months thereafter.
The respondents did not feel any grievance about this. The finding that the punishment of compulsory retirement was disproportionate has become final. Acting on the direction issued by the Tribunal, the petitioner submitted representation before the 1st respondent, on 28.08.2006.
It shocks the conscience of anyone, ranging from a prudent to the one who is conversant with the principles of law, that the 1st respondent has chosen to issue the show cause notice to the petitioner proposing to enhance the punishment in the name of implementing the direction of the Tribunal. Such a step is the result either of indifference to the order of the Tribunal or ignorance of law. The petitioner submitted explanation in his own way. Thereafter, the 1st respondent made the following observation and ultimately, passed the order imposing the punishment of removal from service:
Government have examined the representation of the individual as per the records and taking into account the judgment of the Hon''ble A.P.A.T. and found that the services of 21 individuals working in Panchayat establishment of Karimnagar district were wrongfully regularized. This matter had come to light and after due process it was established that the Junior Assistant was the prime mover in the entire case. The facts remain that it is because of the accounts of the Junior Assistant that irregular appointments had taken place. If these had not been found out, these 21 individuals would perhaps have continued in service, wrongfully. Government therefore consider that it may not be appropriate to continue in service a person who has been found blatantly and in violation of Government instructions wrongfully appointing persons. Therefore, Government, provisionally decided to enhance the penalty from compulsory retirement to that of removal from service under rule 40 of APCS (CCA) Rules, 1991.
This Court is rather compelled to observe that had the Officer, who issued the CO., exhibited a small fraction of his concern for cleanliness in public administration or transparency in functioning, he would have certainly thought of initiating proceedings against the District Collector, who took the decision, even if necessary, by reopening the file. However, the administrative consanguinity and the Collector being from the Class of I.A.S. appears to have made his eyes to blink at the centre point of illegality and made him to search in the periphery to exhibit his "uncompromising commitment" for transparency and efficiency in the administration. The unfortunate part of the matter is that there is no dearth of such Officers, who pretend highest concern for transparency, even while being soft towards their colleagues and harsh against petty employees.
There are more grounds than one on which the impugned G.O., deserved to be set aside. Once a disciplinary authority imposes the punishment, it is only when specific power is conferred upon the appellate authority that it can be enhanced, duly following the procedure. Instances of that nature occur only when the appeal is preferred against the order of ''punishment by the department pointing out that the punishment is inadequate or when the appellate or revisional authorities conferred with suo moto power in this behalf. Even in such cases, several conditions are to be complied with, such as issuance of notice, the action being initiated within reasonable time, and existence of adequate grounds etc.
But for the fact that the petitioner filed an appeal in compliance with the directions issued by the Tribunal, there was no occasion for the first time to deal with the matter pertaining to punishment imposed against the petitioner. The Tribunal made it amply clear that the punishment of compulsory retirement was harsh and the representation to the 1st respondent was for reconsideration thereof. However, the concerned officials, who dealt with the matter issued the show cause notice proposing to enhance the punishment crossing all barriers of propriety and legality. At least when the petitioner informed that the proceedings do not permit them to do that, a second thought ought to have been given. However, with a semblance of vindictiveness, the punishment was enhanced. No reference was made to any provision of law. The impugned G.O. is arbitrary, discriminatory, capricious and unconstitutional. It does not accord with the procedure prescribed under the A.P.C.C.A. Rules also.
It is no doubt true that it is only in rarest cases that a Court or a Tribunal can substitute the punishment for the one imposed by the disciplinary authority. Since we are taking the view that the G.O., cannot be sustained, we refrain from dealing with that in detail. The original order of punishment merged in the impugned G.O. The petitioner has since retired from service.
Hence, W.P. No. 24476 of 2013 is dismissed and W.P. No. 24927 of 2013 is allowed. We hereby set aside G.O.Ms. No. 66, Panchayat Raj and Rural Development (VIG.III-A) Department, dated 11.02.2010 and direct that the petitioner is entitled to be paid arrears of salary, if any, and other benefits. There shall be no order as to costs. The miscellaneous petitions filed in these writ petitions shall also stand disposed of.