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Judgment
Vaman Rao, J.—The petitioner in both these writ petitions is an Executive Officer Grade-1 of Sri VallidevasenaSametha Subrahmanyeswara Swamy Temple, Singarayapalem, Krishna district. It is stated in the affidavit of the petitioner filed in support of (WP No.31388/1997) that while he was working as Executive Officer as above mentioned, the Commissioner of Endowments by his order in Rc.V2/31390/ 96-1, dated 23-11-1996 has suspended him pending enquiry into the charges. Questioning the said order he filed OA No.7979/1996 contending that the 1st Respondent namely the Commissioner of Endowments has no power to suspend him as he was appointed as Executive Officer before 1977. It is stated that the Endowment Commissioner has power to suspend the Executive Officer under A.P. Executive Officers Disciplinary (Control and Appeal) Rules, 1977. But the petitioner could not have been suspended under these rules as they came into force in the year 1977. The order dated 23-11-1996 passed by the Endowments Commissioner was suspended by the Andhra Pradesh Administrative Tribunal. After he obtained an order of suspension from the Tribunal, the Government suspended him again under memo No.33758/Endts.I/A2/97-l, dated 8-7-1997. Questioning that order the petitioner filed OA No.5710/1997 in the Tribunal. However, the orders under the said memo were not suspended by the Tribunal and he was relieved from his post on 1-11-1997. Thus Writ Petition No.31388/ 1997 is filed challenging the order in OA No.5710/1997 and Writ Petition No.31870/ 1997 is filed challenging the order in OA No.7979/1996. Both these OAs along with other OAs relating to some other employees have been disposed of by the Tribunal under a common order dated 7-11-1997. It is contended that once the order of suspension passed by the Commissioner was suspended by the Tribunal, the other authorities are debarred from doing anything in the matter. It is avered that inspite of knowledge of suspension of the Commissioner''s order dated 23-11-1996 by the Tribunal, the Government passed the impugned order under memo referred to above and as such, the said Government order is null and void. This contention was rejected by the Tribunal on the ground that the Government was not a party to the proceedings in which the order of suspension was passed by the Andhra Pradesh Administrative Tribunal. It is stated that the prohibition enshrined in Section 19(4) of the Administrative Tribunals Act is not confined to the parties alone. The prohibition is general in nature which prohibits entertaining any appeal or representation in relation to such matters. It is stated that after the Commissioner''s orders were suspended by the Administrative Tribunal, the Commissioner addressed the Government requesting it to suspend the petitioner.
However, the Tribunal by its order dated 7-11-1997 dismissed the O.As. filed by the petitioner on the ground that Rule 15 of APCS (CC&A) Rules, 1991, confers the power of suspension on the appointing authority to which it is subordinate including the Government. It is contended that the Tribunal has misconstrued these provisions. It is stated that the Tribunal having found that under Rule 7 of CC&A Rules, the A.P. Executive Officers Subordinate Service has not been declared as a subordinate service which comes within the purview of the CC&A Rules, the Tribunal ought to have held that Rule 15 was not applicable to the Executive Officers who are governed by A.P. Executive Officers Subordinate Service Rules. It is staled that the CCA Rules framed under proviso to Article 309 of the Constitution of India do not apply to the petitioner as he was appointed under the Statute, namely, under A.P. Act 17 of 1966. Hence, it is prayed that the orders of the Andhra Pradesh Administrative Tribunal passed in OA No.5710 of 1997 dated 7-11-1997 maybe quashed.
Two questions arise for consideration in these writ petitions.
(i) Whether the suspension of the petitioner by the Commissioner, Endowments under Rule 5 of the A.P. Executive Officers Disciplinary (Control and Appeal) Rules, 1977 is valid?
(ii) Whether, while pending the OA No.7979 of 1996 challenging the petitioner''s suspension by the Commissioner, the subsequent proceedings suspending the petitioner are in accordance with law?
The learned Counsel for the petitioner Sri K. V. Satyanarayana has advanced two fold arguments. It is firstly contended that the A.P. Executive Officers Disciplinary (Control and Appeal) Rules, 1977 (for short ''Disciplinary Rules, 1977'') are not applicable to the petitioner inasmuch as the petitioner was appointed before those Rules came into force and the said Rules do not have retrospective effect. The question of retrospective effect of the Disciplinary Rules, 1977 does not arise. When the petitioner was appointed, admittedly there were no rules governing the conduct of Executive Officers. The Rules have been framed by the Government under the powers vested in the Government u/s 107 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short ''the Act, 1966''). An employee will be governed in respect of his service conditions, by such rules as may be framed from time to time unless there is any special protection to an employee or a class of employees that they will be governed only by the Rules in force at the time of their appointments to certain posts. In the absence of any such saving provision, there can be no manner of doubt that the petitioner will be governed by whatever Rules regarding service conditions have been promulgated by the Government after he was appointed as Executive Officer. The learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, , in support of his contention that the said Rules cannot have retrospective operation. This case dealt with entirely different situation. A Tahsildar was notified u/s 2(44) of Income Tax Act investing him with the powers of Tax Recovery Officer with retrospective effect. In other words, he was enjoined to Act as a Tax Recovery Officer even in respect of transactions which took place prior to the notification under which he was designated as a Tax Recovery Officer. This principle would have helped the petitioner had it been the case here that in respect of transactions attributed to the petitioner which occurred prior to promulgation of these Rules he was being proceeded against by way of suspension after promulgation of these rules. In this case as stated above, there were no Rules on the subject prior to the Rules of 1977. The transactions in respect of which misconduct is attributed to the petitioner and he is being sought to be suspended admittedly took place after these Rules came into force. The principle of enactment not having a retrospective effect unless specifically provided for does not help the petitioner. In the facts and circumstances, mere is no occasion for application of that principle. It is true that the Act of 1966 has been repealed by virtue of Section 155 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ''the Act of 1987''). But, it is significant to note that sub-section (2)(a) of Section 155 of the Act, 1987 categorically saves the Rules and Notifications etc. framed under the Act of 1966. Sub-section (2)(a) of the Section 155 of the Act, 1987 is extracted hereunder:
"(2) Notwithstanding such repeal--
(a) all Rules made, notifications or certificates issued, orders passed, decisions made proceedings taken and other things done by any authority or officer under the repealed Acts shall insofar as they are not inconsistent with this Act be deemed to have been made, issued, passed, taken or done by the appropriate authority or officer under the corresponding provisions of this Act and shall have effect accordingly until they are modified, cancelled or suspended under the provisions of this Act."
Thus, it is clear that until new Service Rules are promulgated under the New Act of 1987, the Disciplinary Rules of 1977 shall be deemed to govern the Executive Officers.
It is, however, contended that even in these Rules, there is no power to suspend the Executive Officers. Rule 5(1) of the Disciplinary Rules, 1977 provides for suspension of an Executive Officer, which is extracted below:
"5. Suspension : (1) An Executive Officer may be placed under suspension from service pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest."
The proviso to this Rule contemplates that where an Executive Officer has been suspended by an authority other than the Government and the investigation has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months from the date of suspension, the fact shall be reported to the Government for such orders as they may deem fit. Thus, it is clear that this Rule provides for suspension of an Executive Officer pending investigations or enquiry into grave charges and where such suspension is in public interest.
The next contention of the learned Counsel for the petitioner is that Rule 5 of the Disciplinary Rules, 1977 provides for suspension but there is no provision vesting the power to suspend the Executive Officer in any particular authority. Rule 6 of the said Rules provides that the authority which may impose on Executive Officer the penalty of suspension and some other penalties mentioned therein shall be his immediate superior Gazetted Officer or where the appointing authority is a non-Gazetted Officer, such officer or any higher authority. Rule 6(1) of the Disciplinary Rules, 1977 is extracted below for a ready reference :
"6. Authority to Impose Punishments :--
(1)(a) The authority which may impose on an executive officer the penalty of suspension or the penalties of (i) censure, (ii) fine and (iii) withholding of increments shall be, his immediate superior Gazetted Officer or where the appointing authority is a non-gazetted officer, such officer or any higher authority.
The authority which may impose, on an executive officer, the penalty of recovery from pay of the whole or any part of the pecuniary loss caused to the Government or the Centra! Government or to an institution by negligence or breach of orders, shall be the officer next above the immediate superior Gazetted Officer."
This Rule makes it abundantly clear that an Officer who is immediately superior to an Executive Officer has the power to award the punishment of suspension to an Executive Officer. When Rule 5(1) of the Disciplinary Rules, 1977 vests the power of suspension in the concerned authority and Rule 6(1) confers the power of suspension by way of punishment to an officer immediately superior to the Executive Officer, the inference is that an officer immediately superior to an Executive Officer, the appointing authority or higher authority can also suspend the Executive Officer pending enquiry. But, in this case, the suspension was ordered in the first instance by no other than the Commissioner of Endowments who must be deemed to have such power in the light of Rules 5 and 6.
However, in this case, the orders passed by the Commissioner in Memo No.Rc.V2/31390/96-1 dated 23-11-1996 placing the petitioner under suspension were challenged in the A.P. Administrative Tribunal in OA No.7979 of 1996 and the said orders were suspended by the Tribunal. In the meanwhile, the Government passed the impugned orders placing the petitioner under suspension. Thus, the order passed by the Commissioner placing the petitioner under suspension became non-operative and the said order need not be challenged and the said order need not be set-aside for the purpose of disposal of these writ petitions.
The only question that survives is whether the orders passed by the Tribunal in OA No.5710 of 1997 upholding the orders passed by the Government placing the petitioner under suspension can be sustained?
The learned Counsel for the petitioner contends that even the Government have no power to suspend the petitioner as under the relevant Rules and it has not been specifically indicated as the authority to suspend the petitioner. In support of his contention, the decision in the case of V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, is cited. The learned Tribunal rightly held that this authority is not applicable to the facts of this case. What has been held in the judgment of the Supreme Court was that suspension is not an implied term in an ordinary contract between master and servant, power to suspend can only be a creature either of a statute governing the contract or of an express term in the contract itself. It was held, however, that there is a distinction between suspending the contract of service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting. It was held that in the latter case, the suspension is always implied term in every contract of service under which the employer has the power to prohibit the employee from performing his services required of him during the particular period. The contention of the learned Counsel proceeds on the assumption that there is no provision by way of statutory ule providing for suspension of an Executive Officer. This contention further rests on the footing that the Disciplinary Rules, 1977 are not applicable to the petitioner as he was appointed prior to coming into force of those Rules and they do not have retrospective effect. It has already been held above that the question whether these rules have retrospective effect or not does not arise in this case and these Rules are applicable to the petitioner. As seen above, Rule 5(1) of the Disciplinary Rules, 1977 contemplates suspension of an Executive Officer. Thus, in this case, there is a statutory provision providing for suspension of the petitioner.
9(b). The contention that these Rules have not specified a particular authority as having been vested with the power to suspend and as such even the Government have no power to suspend can scarcely be countenanced as seen from discussion in para No.6 supra. It must, therefore, be held that the Government do have the power to suspend the Executive Officer inasmuch as "it is a higher authority" within the meaning of Rule 6(1) of the Disciplinary Rules, 1977 referred to above.
The next contention raised before the Tribunal on behalf of the Government was that a reading of Section 27 read with Section 127 of the Act, 1966 would show that the Executive Officers have been declared as Government Servants and as such the power to suspend the Executive Officer can be derived from the provisions of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ''the CCA Rules, 1991'').
(b) It is true that under Rule 15 of the CCA Rules, 1991 the appointing authority or any authority to which it is subordinate including Government may also place under suspension under Rule 8 any member of a Service to whom these Rules apply. The question is whether these Rules are applicable to the Executive Officers of the Endowment Department.
The Rule 7 of the CCA Rules, 1991 reads as follows:
"The Subordinate Service shall consist of the Services included in Schedule II to these Rules and any other services that may be notified by the Government from time to time."
Thus, it is apparent that these Rules shall be applicable to such of those services which have been included in Schedule-11.
(c) Admittedly, as on the date on which the Commissioner passed the orders suspending the petitioner or on the date Government passed such orders, the A.P. Endowments Executive Officers Subordinate Service Rules were not included in Schedu!e-II as contemplated under Rule 7 of the CCA Rules, 1991 but the Rules were subsequently amended under which "A.P. Endowments Executive Officers Subordinate Officers Services" were included in Schedule II only with effect from 8-6-1998 (vide G.O. Ms. No.213 dated 8-6-1998.) Thus, it is apparent that the CCA Rules 1991 did not apply to the Executive Officers of the Endowments Department on the dates of the impugned orders.
However, before the Tribunal, it was canvassed and also mentioned in the counter that pending amendment to the said Service Rules, the Government directed to follow the procedure laid down in G.O. Ms. No. 1418, Revenue (Endowments-I) Department dated 29-11 -1979. The Tribunal accepted the said contention that even though the Executive Officers Subordinate Officers Services were not included in Schedule II under Rule 7 of CCA Rules, 1991, by appropriate amendment these Rules are applicable to every Government servant who is a member of civil services of the State or holds a civil post in connection with the affairs of the State as per Rule 2(e), Rule 3(1) and (2) of CCA Rules, 1991 and that the appointing authority or any authority to which it is subordinate including the Government may place an Executive Officer under suspension under Rule 8 of the CCA Rules, 1991. It is doubtful whether in the absence of inclusion of Executive Officers Service in Schedule II under Rule 7, these Rules can be applicable to the Executive, Officers simply because they are deemed to be the Government servants. G.O. Ms. No. 1418, Revenue (Endowments-I) Department dated 29-11-1979, a copy of which is made available by the learned Government Pleader incorporates the policy decision of the Government to make various Service Rules applicable to the Government servants extended to the Executive Officers. There is nothing in this G.O. to show that the Government have implemented that decision by including the Executive Officers, Subordinate Officers service in the Schedule II under Rule 7 of the CCA Rules, 1991. A decision to extend all Rules applicable to the Government servants to the Executive Officers is not sufficient unless this decision is given effect to by incorporating appropriate amendments in the relevant Rules. At any rate, there is nothing in the G.O. to show that in respect of disciplinary proceedings, the CCA Rules, 199! have been made applicable to the Executive Officers of the Endowment Department. Had it been so, there would have been no need to issue G.O. Ms. No.213, General Administration (Ser.C) Department, dated 8-6-1998 under which the appropriate amendments have been effected subsequently.
However, it is not necessary to decide this question as it has already been held that on the relevant dates, Executive Officers were governed by the Disciplinary Rules, 1977. It has already been held that under these Rules, the Commissioner and the Government are vested with the powers of suspending the Executive Officers. As already observed above, the suspension of the petitioner by the Commissioner has been eclipsed by the subsequent suspension orders passed by the Government in Memo No.33758/Endts.I/A2/97-l dated 8-7-1997.
As far as the powers of the Government to suspend the petitioner are concerned, as observed above, there is no doubt that such power vests in the Government.
The only contention which remains to be dealt with is, as contended by the learned Counsel for the petitioner, while the suspension order passed by the Commissioner was subject matter of OA No.7979 of 1996 and when such suspension order was suspended by the Tribunal, whether it was open lo the Government to pass the impugned orders dated 8-7-1997 suspending the petitioner. This contention is based on the prohibition enjoined in subsection (4) of Section 19 of the Administrative Tribunals Act, 1985, which reads as follows :
"19(4). Where an application has been admitted by a Tribunal under subsection (3), every proceedings under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules."
The learned Tribunal rejected this contention mainly on the ground that the Government was not a party in OA No.7979 of 1996 filed by the petitioner challenging his order of suspension by the Commissioner. It is pertinent to mention here that the impugned orders passed by the Government in Memo No.33758/Endts.l/A2/97-l dated 8-7-1997 contains a reference to the letter from the Commissioner of Endowment dated 22-5-1997, which he appears to have written after the order passed by the Commissioner was suspended by the Tribunal on 10-4-1997 in OA No.7979 of 1996. This clearly shows that the impugned orders were passed by the Government on a representation by the Commissioner that his own orders suspending the petitioner were suspended by the Tribunal. It is not a case where the Government independently and without any knowledge of the proceedings pending in and orders passed by the Tribunal, passed the order. Under these circumstances, the Government must be deemed to have passed the impugned order on the representation of the Commissioner in relation to a matter which was subject matter of enquiry before the Tribunal. Thus, the Government in this case have entertained a representation from the Commissioner on the subject matter of suspension of the petitioner at a time when it was already a subject matter of enquiry before the Tribunal. Such an order passed by the Government cannot be sustained in view of sub-section (4) of Section 19 of the Administrative Tribunals Act, 1985. In these circumstances, the order of the Tribunal upholding the impugned order of the Government in Memo No.33758/Endts.I/A2/ 97-1 dated 8-7-1997 must be held to be erroneous in law. The question whether the Government was a party to that proceedings is not relevant inasmuch as the provision contained in sub-section (4) of Section 19 is a declaratory law which mandates compliance by all the concerned irrespective of the fact whether they are parties to the proceedings in question or not. In this case, the Government not only had the knowledge of the proceedings pending and the orders passed by the Tribunal, but in fact specifically to set at nought the orders passed by the Tribunal, they (Government) passed the impugned orders which are in clear violation of Section 19(4) of the Administrative Tribunals Act, 1985. Therefore, we are constrained to set aside the orders of the Tribunal on this ground.
In the result, the writ petition No.31388 of 1997 is accordingly allowed. Writ Petition No.31870 of 1997 is closed as no specific orders need be passed. However, it is open to the Government to take such steps or to pass such orders as they deem fit after termination of these proceedings.