TaxTMI 
TaxTMI 
TaxTMI 
2013 (2) TMI 834
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....s keeping in view the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "the Rules"). 3. The facts which are imperative to be adumbrated are that a disciplinary proceeding under Rule 5 of the Rules was initiated against the respondent, a Senior Accountant in the Office of the Sub Treasury, Nakrekal, on the charges that while functioning as the senior most Accountant in the said office and in-charge of the strong room keys, at the time of surprise check by the Deputy Director, District Treasury, Nalgonda, he was absent and had not signed the attendance register in token of his having attended the office and also not maintained the movement register as required under the Rules; that he had failed to keep the currency chest book in the currency chest and not endorsed every transaction; that he had passed the bills, cheques and challans in token of approval of the payment/receipts without signing them; that he had not properly maintained the strong entrants' register which was found outside the strong room and further the entries were not recorded and signed by him; that he had failed to remain present at the time of depositing money or with....
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....t preclude the authorities to pass appropriate orders pertaining to punishment keeping in view the provisions of the Rules. 7. Calling in question the legal propriety of the said order, it is urged by Mr. G.N. Reddy, learned counsel for the State and its functionaries, that the High Court has erroneously opined that two major penalties had been issued in violation of the Rules though reversion to the lower post for a period of two years with the stipulation of postponement of future increments on restoration to higher category does not tantamount to two major penalties under Rule 9 and, under no circumstances, it contravenes sub-rule (27) to Rule 11 of the Rules. It is his submission that the said punishment, being in consonance with the Rules and further such imposition of punishment not being unknown to service jurisprudence, did not warrant interference by the High Court. The learned counsel further canvassed that the amended Rules permit imposition of such punishment but the same has not been taken note of by the High Court which makes the order absolutely vulnerable. 8. Mr. R.S. Krishnan, learned counsel appearing for the respondent, resisting the aforesaid proponements, con....
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....al have been proved. After careful consideration of the material facts and records and explanation of the individual, in exercise of the powers conferred under Sub Rule 27(ii) of Rule 11 read with Sub Rule (vii) of rule 9 of A.P.C.S. (C.C. & A) Rules, 1991 hereby awards a punishment of reversion to the lower post of junior accountant for two years with effect on postponing future increments on restoration to the higher category on Sri Ch. Gandhi, presently working as senior Accountant with immediate effect." 12. Regard being had to the nature of the punishment, it is necessary to scrutinize the Rule position. After the amendment on 6.12.2003, the relevant part of Rule 9 which provides for major penalties is as follows: - "Major Penalties vi) withholding of increments of pay with cumulative effect (G.O.Ms. No. 205, GA (Ser.C) Dept. dt. 5.6.98); vii) (a) save as provided for a in clause (v)(b), reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the ....
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....was compartmentalized into two parts, namely, (vii)(a) and (vii)(b). The disciplinary authority, as is vivid from the aforequoted portion, has imposed the penalty under sub-rule (vii) of Rule 9 of the substituted Rule. 16. Rule 9 of the unamended or the old Rules read as follows: - "Rule 9: Major Penalties: vi) withholding of increments of pay with cumulative effect. vii) Reduction to a lower rank in the seniority list or to a lower stage in the seniority list or to a lower stage in the timescale of pay or to a lower time scale of pay not being lower than that to which he was directly recruited or to lower grade or post not being lower than that to which he was directly recruited, whether in the same service or in another service, State or Subordinate; viii) Compulsory retirement; ix) Removal from service which shall not be a disqualification for future employment under the Government; x) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government." 17. On a perusal of the unamended Rule, there can be no doubt that clause (vii) only related to reduction to a lower rank in the seniority list or to a lower time scale of pay or....
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....servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision." 20. In Union of India and others v. Sangram Keshari Nayak[(2007) 6 SCC 704], it has been held that a departmental proceeding is ordinarily said to be initiated when a charge-sheet is issued. In Coal India Ltd. and others v. Saroj Kumar Mishra[(2007) 9 SCC 625], similar view was reiterated. In view of the aforesaid pronouncements, there is not an iota of doubt that the disciplinary proceeding was initiated under the unamended Rules. 21. At this juncture, we may state with profit that the amended Rule has not been given any retrospective effect. In Tejshree Ghag and others v. Prakash Parashuram Patil and others[(2007) 6 SCC 220], it has been ruled that the State has the power to alter the terms and conditions of service even with retrospective effect by making rules framed under the proviso appended to Article 309 of the Constitution of India, but it is also well settled that the rule so made ordinarily should state so expressly. 22. In Marripati Nagaraja and others v. Government of Andhra Pradesh and others[(2007) 11 SCC 522], this Court has ruled that the St....
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....the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law'." 25. In Hitendra Vishnu Thakur v. State of Maharashtra and others[(1994) 4 SCC 602], this Court dwelled upon the ambit and sweep of the amending Act and the concept of retrospective effect and, eventually, ruled thus: - i. "A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is pr....
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....atutory Construction, 3rd Edn., Vol 1 at p. 477, the learned author makes the following statement of law: "The distinction between repeal and amendment as these terms are used by the Courts is arbitrary. Naturally the use of these terms by the Court is based largely on how the Legislature have developed and applied these terms in labeling their enactments. When a section is being added to an Act or a provision added to a section, the Legislatures commonly entitled the Act as an amendment. When a provision is withdrawn from a section, the Legislatures call the Act an amendment particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, Legislatures label the Act accomplishing this result a repeal. Thus as used by the Legislatures, amendment and repeal may differ in kind - addition as opposed to withdrawal or only in degree - abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind and degree - addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Ac....
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....Bench expressed as follows:- "The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed." [Emphasis supplied] 30. In "Principles of Statutory Interpretation" the learned author, Justice G. P. Singh, while discussing on the said decision in the context of retrospective operation pertaining to the penal statutes, has stated thus:- "This case shows that the rule of construction against retroactivity of penal laws is not restricted to Acts providing for criminal offences but applies also to laws which provide for other penal consequences of a severe nature, e.g. termination of service." 31. In Ritesh Agarwal and Another v. Securities and Exchange Board of ....
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....plicable to him at the time he entered Grade 'D' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. Repelling the contention, the Bench held thus: - "It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee." Thereafter, their Lordships referred to a passage from Salmond andWilliams on Contracts and, eventually, ruled thus: - "We are th....
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.... dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no right, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years." From the aforesaid Constitution Bench decision, it is graphically clear that a vested right cannot be impaired by bringing a law as that is likely to contravene the Constitutional Rights. As stated there, the law is required to satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The Bench has emphasized that a legislature cannot legislate today with reference to a situation that obtained 20 years before and ignore the march of....
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.... proviso to Article 309 or by an Act made under that article, and which of them and to what extent. We find that the Constitution Bench decisions in Roshan Lal Tandon v. Union of India[AIR 1967 SC 1889], B.S. Vadera v. Union of India[AIR 1969 SC 118] and State of Gujarat v. Raman Lal Keshav Lal Soni[(1983) 2 SCC 33] have been sought to be explained by two three-Judge Bench decisions in K.C. Arora v. State of Haryana[(1984) 3 SCC 281] and K. Nagaraj v. State of A.P.[ (1985) 1 SCC 523] in addition to the two-Judge Bench decisions in P.D. Aggarwal v. State of U.P.[ (1987) 3 SCC 622] and K. Narayanan v. State of Karnataka[1994 Supp (1) SCC 44].Prima facie, these explanations go counter to the ratio of the said Constitution Bench decisions. It is not possible for us sitting as a three-Judge Bench to resolve the said conflict. It has, therefore, become necessary to refer the matter to a larger Bench. We accordingly refer these appeals to a Bench of five learned Judges." The Constitution Bench analysed the decisions which have been mentioned in the referral order and observed as follows: - "24. In many of these decisions the expressions "vested rights" or "accrued rights" have been use....
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....accrued right in service jurisprudence and how the same cannot be affected by retrospective amendments. We have already opined that the amendment to the rules is not retrospective. Therefore, the fulcrum of the controversy is whether the respondent had a vested or accrued right to be visited with a particular punishment engrafted under Rules 9 of the unamended Rules. As has been held earlier, the disciplinary proceeding had been initiated under the unamended rules. Under the unamended rule 9(vii), the punishment provided was reduction to a lower rank in the seniority list or to a lower stage in the seniority list or to a lower stage in the timescale of pay or to a lower time scale of pay not being lower than that to which he was directly recruited or to lower grade or post not being lower than that to which he was directly recruited. After the amendment, Rule 9(vii) has been bifurcated into two parts. Under Rule 9(vii)(a), the punishment that is provided is reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the Government servant would earn increments of pay during the period of such reduction and whether on the ....
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....imposition of conditions on restoration to the grade or post or service concerned. It is worth noting that under the unamended rule, there were three other categories of punishments, namely, compulsory retirement, removal from service and dismissal from service. The said punishments have been maintained in the new rules. In the case at hand, the disciplinary proceeding was initiated by serving a charge- sheet for the purpose of imposition of a major penalty and, therefore, the maximum punishment of dismissal could have been imposed on the respondent. 43. The thrust of the matter is whether the respondent could have been imposed punishment under Rule 9(vii) of the unamended rules and no other punishment. The rules have been framed under Article 309 of the Constitution. There can be no cavil that by amending the rule, a punishment cannot be imposed in respect of a misconduct or delinquency which was not a misconduct or a ground to proceed in a departmental enquiry before the amended rules came into force. Further, a person cannot be subjected to a penalty greater than which might have been inflicted under the rule in force at the time of commission of delinquency or misconduct. 44.....
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....he latter part of the Article prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offence with which the appellant had been charged was cheating punishable under S. 420 of the Indian Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by S. 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section." 47. In Smt. Maya Rani Punj v. Commissioner of Income-tax, Delhi [AIR 1986 SC 293], a three-Judge Bench was dealing with the provisions of imposition of penalty under the Income-tax Act, 1961. The question before the Court was that under Section 28 of the Income-tax Act, 1922, the upper limit of penalty was provided and there was no prescription of any particular rate as confined under Section 271(1)(a) of the 1961 Act. The Court observed that the penalty....
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.... that was not permissible at the time of initiation of departmental proceeding. 50. In the case at hand, under the unamended rule, there were, apart from stoppage of increment with cumulative effect and reduction in rank, grade, post or service, three major punishments, namely, compulsory retirement, removal and dismissal from service by which there was severance of service. The maximum punishment that could have been imposed on an employee after conducting due departmental enquiry was dismissal from service. The rule making authority, by way of amendment, has bifurcated the rule 9(vii) into two parts, namely, 9(vii)(a) and 9(vii)(b). As is evincible, the charge-sheet only referred to the imposition of major penalty or to be dealt with under the said rules relating to major penalty. In this backdrop, it would be difficult to say that the employee had the vested right to be imposed a particular punishment as envisaged under the unamended rules. Once the charges have been proven, he could have been imposed the punishment of compulsory retirement or removal from service or dismissal from service. The rule making authority thought it apposite to amend the rules to introduce a differe....