1. Heard Sri S.Krishna Sharma, learned counsel for the petitioner; Sri Mohammed Imran Khan, learned Additional Advocate General for the State of Telangana appearing for respondent Nos.1 to 3 and Sri Aruva Raghuram Mahadev, learned Assistant Government Pleader for the State of Andhra Pradesh appearing for respondent Nos.4 and 5 and perused the record.
2. The present writ petition is filed with the following prayer:
“…….to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the Charge Memo and Article of Charges issued by the Respondent No.1 vide G.O.Rt.No.40, dated 17.02.2010 and the action of the Respondent No.2 & 3 in withholding the retiral benefits including the final pension, gratuity and other benefits on the pretext of issuance of charge memo as arbitrary, illegal, unjust and for being violative of Article 14, 16 and 21 of the Constitution of India and A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, and quash/set-aside the same and consequently direct the Respondents to finalise and release the full pension and all retrial benefits as due and admissible to the Petitioner from the date of his retirement i.e., 30.06.2011 till the date of realisation, including the arrears of pension with interest at the rate of 18% per annum from the date of his retirement and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.”
Factual background (in brief)
3. The petitioner was initially appointed as Lower Division Clerk/Junior Assistant in the Civil Supplies Department on 01.09.1978 and, in the course of his service, was promoted to the posts of Senior Assistant, Superintendent, Joint Director and ultimately Additional Director. While working as Additional Director in the Office of the Commissioner of Civil Supplies, Hyderabad, the petitioner was deputed to the erstwhile Andhra Pradesh State Wakf Board, Hyderabad, and assumed charge as Chief Executive Officer (C.E.O) on 07.06.2006.
4. While the petitioner was functioning as C.E.O of the A.P. State Wakf Board, a Charge Memo enclosed with Articles of Charges was issued by the 1st respondent vide G.O.Rt.No.40 dated 17.02.2010 proposing to hold an enquiry under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ‘1991 Rules’). The substance of the charges, as set out in the Statement of Articles of Charge (G.O.Rt.No.40), is extracted hereunder:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT
PSs – Revenue Department – Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad – Departmental Proceedings under Rule-20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 – Articles of charges – Issued.
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MINORITIES WELFARE (V&C) DEPARTMENT
G.O.Rt.No.40 Dated:17-02-2010
Read: Lr.No.M1/6/Prot/R.R/2005, dated:21-08-2009 from C.E.O., A.P.S. Wakf Board, Hyderabad.
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ORDER:
It is proposed to hold an enquiry against Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad in accordance with the procedure laid down in Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991.
2. The substance of the imputations of misconduct or misbehavior in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charges (Annexure-I). A list of documents by which, and a list of witnesses by whom, the articles of charges proposed to be sustained are also enclosed (Annexure-II to III).
3. The above said Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad is directed to submit within 10 days from the date of receipt of this order, a written statement of his defence and also to state whether he desires to be heard in person.
4. The above said Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad is informed that an inquiry will be held only in respect of those articles of charges as are not admitted. He should, therefore, specifically admit or deny each article of charge.
5. The above said Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad.is further informed that if he does not submit his written statement of defence on or before the date specified in para 3 above further action will be processed based on the material available.
6. Attention of Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad is invited to Rule 24 of the Andhra Pradesh Civil Services (conduct) Rules, 1964, under which no Government Servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings it will be presumed that above said Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rule-24 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964.
7. The receipt of the G.O. may be acknowledged.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
LINGARAJ PANIGRAHI
PRL. SECRETARY TO GOVERNMENT
To
Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad through the Chief Commissioner of Land Acquisition, Hyderabad. (two copies. With a request to serve the copy to the individual and furnish the served copy)
Copy to:
The Ex-Officio Secretary to Government and Commissioner of Civil Supplies, Hyderabad.
The Chief Executive Officer, A.P. State Wakf Board, Hyderabad.
//FORWARDED : : BY ORDER//
SECTION OFFICER
ANNEXURE – I
Statement of articles of charge framed against Sri Shaik Madhar Sheb, the then Chief Executive Officer, A.P. State Wakf Board, Hyderabad.
Article of Charge: That the the said Sri Shaik Madhar Sheb, while functioning as Chief Executive Officer, A.P. State Wakf Board, Hyderabad, during his period of officiation, had misused his powers in the official capacities as Chief Executive Officer and damaging the wakf lands worth hundreds of crores of rupees, which cannot be compensated by any means.
Basis of the Charge:
It is submitted that the lands in Survey Nos.231,242,252,256,258 to 269, 280, 281, 450, 451, 457 to 459, 463, 469, 486, 487 and 581 admeasuring to an extent of Ac.428-01 Gts of Maheshwaram (V & M), Ranga Reddy district belongs to Wakf. The said lands were endowed (Wakf) by one Sri Syed Jamluddin for the maintenance of Muslim Maternity Hospital situated at Chaderghat, Hyderabad which is being run by the Jamat-e-Islami Social Service through a Wakf Deed dated:26-01-1971 and got it registered with the Wakf Board in Kitab-ul-Wakf and a Muntahkab was also issued by the Wakf Board.
The Jamat-e-Islami Social Service without the sanction of the Wakf board and contrary to Law sold an extent of Ac. 12-16 Gts., from the above said survey nos., and have failed to furnish the particulars of the amounts realized there of to the Wakf Board. As a matter of fact the Jamat-e-Islami social service society is only a manger/Caretaker of the said wakf property and as such they are not empowered to sell the wakf property in question.
The said illegal sale transaction was raised by one Legislator before the House Committee for Minorities Welfare, wherein the Government instructed the Wakf Board to call for explanation from the Jamat-e-Islami Social Service Society. In addition to that the Principal Secretary to Government, Minority Welfare Department has also written D.O. Letters to the I.G. Registration & Stamps and the District Collector, Ranga Reddy for not entertaining any registration/Mutations of the said wakf property on 28-11-2006.
In-spite of the instructions and the D.O. Letters from the Government the then C.E.O., Sri Shaik Madhar Saheb intentionally and knowingly has not taken any action against the culprits who sold away the lands for their own personal benefits and delayed to issue the Show Cause notice which is evident from the date of notice i.e., on 25-01-2009 and allowed the sale of the said wakf land. The Jamat-e-Islami Social Service Society submitted their reply to the Show Cause notice issued by the Wakf Board only after one long year i.e., 15-03-2008. But the then C.E.O., have failed to take any action against the persons responsible for the illegal sale for more than one year and even failed to remind the said society. The Jamat-e-Islami Social Service Society in their explanation has set up a false defence by stating that the property in question is not a Wakf Property and misleaded the authorities and requested to withdraw the show cause notice.
The Wakf Board sought for a Legal Opinion from its Senior Standing Counsel Sri S.M. Subhani, who has given an opinion against the Wakf by stating that the person who have registered the Wakf nama was a third person and it is not known, on whose request the Wakf Board has issued the Munthakab and also stated that no citations have been published before issuing the Munthakab.
The then Special Officer, Wakf Board Sri M.A. Quddus has sought the opinion of Law Officer of Wakf Board on the advise of the Standing Counsel. The Law Officer of Wakf Board has given a clear picture of Wakf and specially the wakf property in question and concluded that the said property cannot be deleted from Kitab-ul-Wakf as it is registered wakf for a purpose which comes under the purview of Wakf.
In spite of the Legal opinion of the Law Officer, the then C.E.O.. Sri Shaik Madhar Saheb foregoing the legal opinion intentionally recommended for taking a decision on the endorsement of the Special Officer Sri M.A. Quddus, who was inclined to delete the said property from Kitab-ul-Wakf and withdraw the show cause notice issued by the Wakf Board knowingly it's a registered wakf property in the same office.
Finally, the Special Officer, Sri M.A. Quddus concluded by stating that the said property may be deleted by giving a citation and then delete the same from the Kitab-ul-Wakf and decided to withdraw the "Show Cause Notice" issued to the Jamat-e-Islami Social Service Society.
As per the orders passed by the C.E.O., Sri Shaik Madhar Saheb, the show cause notice so issued to the said society was withdrawn through Lr.No:M1/6/Prot/R.R/2005, dated 09-05-2008 and the Sub-Registrar was also specifically informed on the same date by stating that the show cause notice so issued by the Wakf Board have been withdrawn and further stated that the Sub-registrar, Maheshwaram may take necessary action in the said matter as deemed fit.
The Jamat-e-Islami Social Service Society" has sold away the entire extent of Ac.428-01 Gts., in favour of various individuals and even got them registered with the Sub-Registrar, Maheshwaram. It is also learnt that the concerned revenue records have also been changed from "Muslim Maternity Hospital" to various individuals by way of "Mutations".
From the above facts it is very much evident that the "ill-motive" and "Criminal conspiracy behind the entire case is to delete the subject Wakf Property from Kitab-ul-Wakf" and declare it as "non wakf" for personal gains and the Officer concerned having full knowledge of the entire knowingly/Intentionally misused their powers in the official capacities of Chief Executive Officer and withdrawn the show cause notice which is nothing but admitting that the property is question is not a wakf property. The action taken by the said officer amounts to violation of the provisions of "Wakf Act 1995" and to damage the wakf.
LINGARAJ PANIGRAHI PRL. SECRETARY TO GOVERNMENT
//FORWARDED : : BY ORDER//
SECTION OFFICER
5. The petitioner submitted a detailed written explanation dated 13.09.2010 denying all the allegations. It was specifically stated that the alleged alienation of Ac.12-16 Gts had taken place prior to his deputation; that petitioner had issued a show cause notice dated 25.01.2007 immediately upon receiving instructions; that upon receiving no response, he conducted enquiries with the Revenue Authorities and confirmed the status of the land; and that petitioner had requested initiation of legal proceedings through the Standing Counsel. The petitioner further stated that the reply of the Society disputing the Wakf nature of the land was considered, and the matter was placed before the then Special Officer Sri M.A. Quddus, who, after obtaining legal opinions, directed withdrawal of the show cause notice and initiation of steps for deletion from the Wakf register. It was specifically contended that the petitioner acted only in implementation of the orders of the competent authority and not on his own volition.
6. The petitioner attained the age of superannuation and retired from service on 30.06.2011 while working as Additional Director in the Civil Supplies Department. However, in view of the pendency of the disciplinary proceedings initiated vide Charge Memo dated 17.02.2010, his final pension, gratuity, leave encashment and other retiral benefits were not settled, and only provisional pension has been paid to him from the date of retirement till date. It is submitted that no Enquiry Officer has been appointed and no enquiry has been conducted even after submission of the explanation, resulting in inordinate delay.
7. On a complaint lodged by Sri B.S. Farooq Ahmed, former C.E.O of the A.P. State Wakf Board, an FIR in Crime.No.257 of 2009 dated 16.09.2009 was registered under Sections 406, 420 and 120(B) IPC against the petitioner and others. After investigation, the police filed a Final Report dated 22.09.2015 stating that the matter was civil in nature, and the XII Additional Chief Metropolitan Magistrate, Hyderabad, by order dated 14.10.2016 accepted the Final Report and closed the criminal case, thereby exonerating the petitioner of criminal liability arising out of the same set of allegations.
8. Thereafter, the petitioner submitted representations dated 06.03.2017 and 11.10.2023 to the respondents requesting release of his full pensionary and retiral benefits, bringing to their notice the closure of the criminal case and the absence of any concluded disciplinary proceedings. Pursuant thereto, the Secretary to Government, Minorities Welfare Department, issued Memo dated 09.11.2023 directing the C.E.O, Telangana State Wakf Board to examine the matter and submit a report. However, no further action has been taken, and the disciplinary proceedings continue to remain pending without conclusion.
9. During the pendency of the present writ petition, this Court impleaded the State of Andhra Pradesh and its Commissioner of Civil Supplies as respondent Nos.4 and 5, in view of the fact that the petitioner retired prior to bifurcation of the State and the service records are maintained by the State of Andhra Pradesh. Counter affidavits have been filed by the respondents, wherein it is stated that the disciplinary file has been retrieved and the matter is under active consideration, and that the allegations involve serious issues relating to Wakf property of substantial value. However, despite such assertions, no enquiry has been conducted and the proceedings have not attained finality, resulting in continued withholding of the petitioner’s retiral benefits.
Submissions on behalf of petitioner
10. Learned counsel for the petitioner advanced the following submissions hereunder:
i. That the impugned action of the respondents is wholly arbitrary and unsustainable in law. It is submitted that though the Charge Memo was issued as early as 17.02.2010 under Rule 20 of the 1991 Rules, and the petitioner had submitted his detailed explanation on 13.09.2010, no further steps have been taken by the respondents to proceed with or conclude the disciplinary proceedings. The petitioner retired on 30.06.2011 and, despite lapse of more than fifteen years from the date of issuance of the Charge Memo, no Enquiry Officer has been appointed, no enquiry has been conducted, and no final orders have been passed. Such inordinate and unexplained delay is violative of the time limits prescribed under G.O.Ms.No.679 dated 01.11.2008, which mandates completion of disciplinary proceedings within a stipulated period of three to six months depending upon the complexity of the case, and also vitiates the very proceedings and renders them liable to be set aside.
ii. That the criminal case vide Crime.No.257/2009 registered in connection with the same subject matter was closed by the learned Magistrate on 14.10.2016 after the police filed a final report dated 22.09.2015 opining that the matter was “purely civil in nature”. The learned XII Additional Chief Metropolitan Magistrate, Hyderabad, by order dated 14.10.2016, accepted the said Final Report and closed the criminal case. It is submitted that even thereafter, no civil action has been initiated by the Wakf Board or any authority in respect of the subject property. In the absence of any subsisting civil or criminal proceedings, the continued pendency of the departmental proceedings and consequential withholding of pensionary benefits is wholly unjustified and amounts to perpetuating a stale charge.
iii. That the right to receive pension is a valuable property right protected under Article 300-A of the Constitution of India. Placing reliance on State of Kerala v. M. Padmanabhan Nair ((1985) 1 SCC 429) and S.K. Dua v. State of Haryana ((2008) 3 SCC 44), it is submitted that any culpable delay in settlement and disbursement of retiral benefits must necessarily entail payment of interest. In the present case, the petitioner has been deprived of his lawful dues since his retirement on 30.06.2011 and has been paid only provisional pension. Such deprivation for more than fourteen years, without conclusion of proceedings, is wholly arbitrary and the petitioner is entitled to interest at 18% per annum on all delayed payments.
iv. Further, the petitioner by placing reliance on State Bank of India v. Navin Kumar Sinha (2024 SCC OnLine SC 3369), submitted that no disciplinary proceeding can be initiated after the delinquent employee retires from service on attaining the age of superannuation or after the extended period of service. Although the charge memo in the present case was issued prior to retirement, it was contended that the proceedings have not been continued in accordance with law; no enquiry officer was appointed before retirement, and therefore the legal fiction of continuance of service under Rule 9(4) of the A.P. Revised Pension Rules, 1980 (for short ‘1980 Rules’) cannot be invoked.
v. That the action of the respondents is discriminatory and violative of Article 14 of the Constitution. It is pointed out that in respect of the then Special Officer, Sri M.A. Quddus, against whom identical allegations arose out of the same transaction, disciplinary proceedings were initiated by his parent department, namely the General Administration Department, Government of Andhra Pradesh, and the same were dropped vide U.O. Note No.46/SC.D/A1/2010-1 dated 17.07.2010. However, in the case of the petitioner, the proceedings have been kept pending for an inordinate period without any justification, which amounts to hostile discrimination.
vi. That the respondents have failed to adhere to Rule 24 of the 1991 Rules, which provides for common proceedings where two or more Government servants are involved in the same transaction. Since the allegations against the petitioner and the said Sri M.A. Quddus arise out of the same set of facts and decisions taken at the Wakf Board level, the respondents ought to have conducted common disciplinary proceedings. The failure to do so, coupled with dropping of charges against one officer and continuation against the other, renders the proceedings arbitrary and unsustainable.
Submissions on behalf of respondent No.1 to 3- State of Telangana
11. Learned Additional Advocate General appearing for the respondent No.1- State of Telangana, Minorities Welfare Department has advanced the submissions as under:
i. That the allegations against the petitioner are of a grave and serious nature. That while functioning as C.E.O of the A.P. State Wakf Board, the petitioner misused his official position and facilitated alienation of valuable Wakf land admeasuring about Ac.428-01 Gts, valued at more than Rs.1000 crores. Such acts, if established, constitute grave misconduct and breach of trust by a public servant. That Wakf property is inalienable in nature under Section 51 of the Wakf Act, 1995 (for short ‘1995 Act’), and any act enabling its alienation without sanction is a serious illegality warranting disciplinary action.
ii. That the disciplinary proceedings were validly initiated while the petitioner was in service, as the Charge Memo was issued on 17.02.2010, much prior to his retirement on 30.06.2011. Placing reliance on Rule 9(4) of the 1980 Rules, it is contended that the Government is empowered to continue disciplinary proceedings even after retirement and to withhold or withdraw pension if the pensioner is found guilty of grave misconduct in proceedings instituted prior to retirement. Therefore, the continuation of proceedings and withholding of pensionary benefits is fully justified in law.
iii. That the closure of the criminal case does not bar or affect the departmental proceedings. It is well settled that the standard of proof in criminal proceedings is higher, whereas in departmental proceedings it is based on preponderance of probabilities. Therefore, even if the criminal case is closed as being civil in nature, the disciplinary proceedings can validly continue on the same set of facts.
iv. That the delay cannot be attributed solely to the respondents, as the petitioner himself contributed to the delay by submitting multiple representations. Further, the bifurcation of the State in the year 2014 resulted in administrative complications, including transfer of records between the successor States. The delay does not vitiate the proceedings nor render the Charge Memo invalid.
v. That the present writ petition is premature, as the disciplinary proceedings are still pending and no final order has been passed. The petitioner has an effective alternative remedy under the CCA Rules to challenge any adverse order, and therefore invocation of jurisdiction under Article 226 at this stage is not warranted.
vi. That the dropping of charges against Sri M.A. Quddus does not confer any enforceable right upon the petitioner. Each case has to be considered on its own merits, and the principle of equality cannot be invoked to claim parity in illegality.
vii. That Rule 24 of the 1991 Rules is discretionary in nature and does not mandate common proceedings in every case involving multiple officers. Therefore, non-conduct of common proceedings does not vitiate the disciplinary action against the petitioner.
viii. The respondent No.1 in support of its case has placed reliance on the following decisions as under:
a. Chairman-cum-Managing Director, Mahanadi Coalfeilds Limited v. Rabindranath Choubey ((2020) 18 SCC 71)
b. R.Veerabhadram v. Government of A.P. ((1999) 9 SCC 43)
12. We have taken note of the respective submissions and the material placed on record.
Consideration by this Court
13. The principal issue that arises for consideration is whether the disciplinary proceedings initiated against the petitioner prior to his retirement can be continued thereafter and whether the respondents are justified in withholding the full pensionary benefits pending conclusion of such proceedings. In regard to the above, it is pertinent to note that the Rule 9(4) of the 1980 Rules, confers power upon the Government to withhold or withdraw pension where a pensioner is found guilty of grave misconduct in a departmental or judicial proceeding instituted prior to retirement. Rule 9(4) of the 1980 Rules is extracted hereunder for ready reference:
Rule 9- Right of Government to withhold or withdraw pension :-
(1) The Government reserves to themselves the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specific period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement :
Provided that the Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed. However, consultation with Andhra Pradesh Public Service Commission is not necessary, when the pensioner is found guilty in any judicial proceedings”.
Provided further that a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45]
Provided also that the penalty of withholding of entire pension or gratuity or both may be imposed against the retired Government servant upon being found guilty or upon conviction in a court of law for the offences of grave charges namely proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of women and misconduct.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
Provided that where the departmental proceedings are instituted by an authority subordinate to the State Government, that authority shall submit a report recording its findings to the State Government.
Note :- The function of the disciplinary authority is only to reach a finding on the charges and to submit a report recording its findings to the Government. It is then for the Government to consider the findings and take a final decision under this rule. In case Government decide to take action under this rule in the light of the findings of the disciplinary authority, the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under this rule and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply and consult the Andhra Pradesh Public Service Commission. If as a result of such consideration in consultation with the Commission, it is decided to pass an order under the rule, necessary orders will be issued in the name of the Government.
(b) *****
(3) *****
4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under subrule (2), a provisional pension as provided in Rule 52 shall be sanctioned.
A plain reading of the aforesaid Rule makes it abundantly clear that the essential requirement is the institution of proceedings before retirement; it does not mandate that such proceedings must be concluded before the date of superannuation. On the contrary, the provision contemplates continuation of such proceedings even after retirement for the limited purpose of determining the entitlement to pension.
14. It is to be noted that it is not in dispute that the Charge Memo was issued to the petitioner on 17.02.2010, whereas he attained superannuation on 30.06.2011. Thus, the disciplinary proceedings were undoubtedly instituted while the petitioner was in service. The statutory pre-condition under Rule 9(4) stands satisfied, and the respondents are legally entitled to continue the proceedings even after retirement.
15. Further, the reliance placed on Navin Kumar Sinha (supra 3) by the learned counsel for the petitioner is distinguishable on facts. In that case, the charge memo was issued after the employee had already retired from service, and it was in that context that the Apex Court held that initiation of disciplinary proceedings post-retirement is impermissible. However, in the present case, the impugned proceedings were initiated well before the retirement of the petitioner. The ratio laid down in the said judgment, therefore, does not in any way advance the case of the petitioner. On the contrary, the legal position that proceedings validly initiated prior to retirement can be continued thereafter stands reaffirmed.
16. It is a settled law in service jurisprudence that retirement does not ipso facto terminate disciplinary proceedings initiated during service. The delinquent employee is deemed to continue in service for the limited purpose of conclusion of such proceedings. The issuance of a charge memo constitutes initiation of disciplinary proceedings, and once such initiation takes place prior to retirement, the employer retains the authority to proceed further in accordance with the governing rules and to determine the question of withholding or withdrawal of pension upon conclusion of the enquiry.
17. The Hon’ble Supreme Court in Union of India and others v. K.V. Jankiraman and others (MANU/SC/0445/1991 = AIR 1991 SC 2010) while holding that a disciplinary proceeding is deemed to have been initiated when the charge memo is issued, has held as under:
6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point…..
(emphasis supplied)
18. In the present case, the allegations levelled against the petitioner pertain to misuse of official position while functioning as C.E.O of the A.P. State Wakf Board, resulting in alleged alienation of Wakf property admeasuring about Ac.428-01 Gts. Having regard to the nature of the allegations and the magnitude of the alleged loss, the charges, if proved, would amount to grave misconduct within the meaning of Rule 9(4). In such circumstances, the respondents cannot be faulted for withholding the full pension pending adjudication of the charges, as any contrary direction would defeat the very object of the rule.
19. While this Court cannot ignore the delay caused in the conclusion of the departmental proceedings, it cannot also be unmindful of the fact that there was bifurcation of the State of Andhra Pradesh in the year 2014 which, according to the learned Additional Advocate General led to administrative complexities, including the transfer of records between the successor States. Further, there was a genuine confusion as to the competent disciplinary authority, whether it was the borrowing department (Minority Welfare) or the parent department (Civil Supplies) of the delinquent officer which was required to conduct and conclude the departmental proceedings. This required legal clarification under Rule 30 of the 1991 Rules. Furthermore, the original disciplinary file had been transferred from the Consumer Affairs, Food and Civil Supplies Department to the Minorities Welfare Department. It is submitted that the file has now been retrieved and active steps are being taken to expeditiously conclude the enquiry. Upon a pragmatic review, we are satisfied that the delay is not the result of negligence or deliberate inaction on the part of the State. In our considered view, mere delay, in the absence of demonstratable prejudice to the delinquent in defending the proceedings, does not automatically vitiate the proceedings. In such circumstances, the appropriate course is to direct expeditious completion of the enquiry rather than to quash the proceedings at the threshold.
20. In regard to the issue as to whether the closure of the criminal proceedings and the dropping of charges against a co-delinquent would have any bearing on the continuance of the departmental proceedings against the petitioner, it is relevant to note that criminal proceedings and departmental proceedings operate in distinct fields and are governed by different standards of proof and objectives. While a criminal prosecution is intended to determine guilt for an offence against the State on the basis of proof beyond reasonable doubt, a departmental proceeding is concerned with maintaining discipline and integrity in public service and proceeds on the standard of preponderance of probabilities. The outcome of one does not automatically conclude the other.
21. As regard the issue of closure of the criminal case, this Court notes a procedural lapse on the part of the investigating agency. From the Final Report submitted by the police (Final Report No.28 of 2015 dated 22.09.2015), it is evident that the informant, i.e., the former CEO of the A.P. State Wakf Board was not issued any notice before filing of the final report before the Magistrate. The final report merely states that “a notice to the complainant has been served and acknowledged copy of the same is submitted herewith”, however, no such notice or acknowledgment is brought on record. More importantly, prior to the learned XII Additional Chief Metropolitan Magistrate accepting the Final Report and closing the criminal case on 14.10.2016, no notice was issued to the informant. The informant, being the original complainant, was thus not afforded an opportunity of being heard on the question whether the case should be treated as civil in nature and closed. This omission violates the principle that complainant has a right to be heard before the closure of a criminal case, as recognized under Section 173(2)(ii) of Code of Criminal Procedure and the well settled law laid down by the Hon’ble Supreme Court in Bhagwant Singh v. Commissioner of Police and others ((1985) 2 SCC 537). However, since the present writ petition is not filed by the informant but by the delinquent officer seeking the release of his pensionary benefits, this Court does not propose to make orders on the reopening of the criminal case. Nonetheless, the fact that the informant was not put on notice before the closure of the criminal case against the delinquent officer is a material circumstance that weakens the petitioner’s contention that the closure amounts to a clean exoneration. The departmental proceedings, being independent in nature, remain unaffected by the said lapse.
22. The question as to whether the petitioner was guilty of dereliction of duty, acted in excess of his authority while functioning as C.E.O, failed to discharge his duties diligently, or facilitated any irregularity in relation to Wakf property, are matters which fall squarely within the domain of disciplinary proceedings and can be independently examined by the competent authority.
23. The Hon’ble Supreme Court in State of Rajasthan v. B.K. Meena and others (MANU/SC/0008/1997 = AIR 1997 SC 13) while distinguishing between criminal proceeding and departmental proceeding has held as under:
7. There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the Rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.
(emphasis supplied)
24. The contention of the petitioner that the dropping of charges against the then Special Officer, Sri M.A. Quddus, entitles the petitioner to similar treatment does not merit acceptance. It is not in dispute that the disciplinary proceedings against the said officer were dealt with by a different department, namely the General Administration Department, which, upon consideration of the material available, chose to drop further action. The petitioner cannot claim parity as a matter of right on that basis. The principle of equality enshrined under Article 14 does not extend to claiming equality in what may be perceived as an erroneous or lenient decision taken in another case. Each disciplinary proceeding must be examined on its own facts, having regard to the role attributed to the concerned officer and the material available against him.
25. Insofar as the reliance placed on Rule 24 of the 1991 Rules is concerned, the said provision enables the competent authority to order common proceedings where two or more Government servants are involved in the same transaction. Rule 24 of the 1991 Rules are extracted hereunder for ready reference:
Rule 24- Common Proceedings-
(1) Where two or more Government Servants of the same service or different services are concerned in any case, the Government or any other authority competent to impose the penalty of dismissal from service on all such Government Servants may make an order directing that disciplinary action against all of them may be taken in a common proceedings.
Provided that if the authorities competent to impose the penalty of dismissal on such Government Servants are different, such authorities not being the Government, an order for holding such inquiry in a common proceeding may be made by the highest of such authorities with the consent of the other authorities competent to impose the said penalty on the others.
(2) Subject to the other provisions of these rules, every such order shall specify:
(i) the authority which may function as the disciplinary authority for the purpose of such common proceedings:
(ii) the penalties specified in rule 9 and rule 10 which such disciplinary authority shall be competent to impose;
(iii) whether the procedure laid down in rule 20 and rule 21 or rule 22 shall be followed in the proceeding.
From the above, it is apposite to note that the language of the Rule
24 is enabling and not mandatory. The discretion vests with the authority to decide whether common proceedings are warranted in the facts and circumstances of a given case. The mere fact that separate proceedings have been initiated or that proceedings against one of the officers have been dropped does not render the proceedings against the petitioner illegal or void. Thus, neither the closure of the criminal case nor the dropping of charges against the co-delinquent has the effect of vitiating the disciplinary proceedings initiated against the petitioner. The departmental proceedings initiated against the petitioner are independent in nature and can validly continue in accordance with law.
Conclusion
26. In view of the foregoing discussion, this Writ Petition stands disposed of with the following directions:
i) The Charge Memo issued vide G.O.Rt.No.40 dated 17.02.2010 is upheld. The disciplinary proceedings initiated against the petitioner shall validly continue in accordance with law.
ii) Having regard to the fact that the petitioner was on deputation from his parent department, it is hereby directed that respondent No.2 – the Principal Secretary, Civil Supplies Department, State of Telangana shall act as the competent disciplinary authority for the purpose of concluding the said proceedings. Respondent No.2 shall secure all necessary records from respondent No.1 and any other concerned authority and proceed further in accordance with Rule 20 of the A.P. Civil Services (Classification, Control and Appeal) Rules, 1991, including appointment of an Enquiry Officer, if not already appointed.
iii) The disciplinary proceedings shall be concluded as expeditiously as possible, preferably within a period of four (4) months from the date of receipt of a certified copy of this order. The Enquiry Officer shall submit his report within a period of three (3) months from the date of receipt of the copy of the order, and the disciplinary authority shall pass appropriate final orders within a further period of one (1) month thereafter.
iv) Pending such conclusion, the respondents shall continue to pay the petitioner provisional pension at the existing rate, in accordance with the applicable rules. The same shall not be discontinued or reduced except in accordance with law.
v) Upon conclusion of the disciplinary proceedings, in the event the petitioner is exonerated, all withheld pensionary and retiral benefits shall be released to him within a period of two (2) months from the date of the final order, together with interest as admissible under the relevant rules governing delayed payment of such benefits. In the event the petitioner is found guilty, appropriate consequential orders shall be passed in terms of Rule 9(4) of the A.P. Revised Pension Rules, 1980.
As a sequel, miscellaneous petitions, pending if any, stand closed. No costs.
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