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TMI Blog2013 (2) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ive a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate.the same really does not affect any vested or accrued right. It also does not violate any Constitutional protection.hence,the order of punishment imposed by the disciplinary authority is restored. - [Civil Appeal No.1428-1428 of 2013 arising out of S.L.P. (C) Nos. 24224-24225 of 2008] - - - Dated:- 19-2-2013 - K.S. Panicker Radhakrishnan and Dipak Misra, JJ. For Appellant: G.N. Reddy, Adv. For Respondents: R.S. Krishnan and C.S.N. Mohan Rao, Advs. Dipak Misra, J. 1. Leave granted. 2. The present appeals by special leave are directed against the judgment and order dated 14.6.2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petition No. 12177 of 2007 and the order dated 8.2.2008 passed in Review WPMP (SR) No. 126152 of 2007 arising from the said writ petition whereby the Division Bench overturned the order dated 16.5.2007 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short the Tribunal ) in O.A. No. 923 of 2006 on the ground that the disciplinary authority had imposed two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there was no illegality or irregularity in the initiation of the disciplinary proceeding, framing of charge or conduct of the enquiry and further, regard being had to the gravity of the charge, the punishment could not be treated to be disproportionate. Being of this view, the Tribunal dismissed the original application. 6. The failure before the Tribunal compelled the respondent to invoke the jurisdiction of the High Court which, after adverting to the facts in detail and the competence of the person who had initiated the proceeding by issuing the memorandum of charges, came to hold that the findings recorded by the Tribunal on the said scores were absolutely defensible and did not warrant any interference. As far as the imposition of punishment was concerned, a contention was advanced that he had been imposed two major penalties which were not in consonance with the Rules. The High Court referred to the order of punishment, Rule 9 of the Rules that deals with major penalties and sub-Rule 27 of Rule 11 of the said Rules and came to hold that the penalty imposed by the disciplinary authority did amount to imposition of two penalties and, accordingly, set aside the punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the term substituted conveys that the Rule has retrospective effect. That apart, it is propounded that even if the rules are not treated as retrospective, the appellant had no vested right to be imposed a particular punishment under the unamended Rules. 10. At the very outset, we may clearly state that we are not concerned with the delinquency of the incumbent or the findings recorded in the disciplinary proceeding that has been conducted. We are also not required to address whether the competent authority had initiated the departmental proceeding, for the respondent has not assailed the order passed by the Division Bench of the High Court and it is only the State which has come up in appeal. Thus, the only aspect that requires to be dwelled upon is whether the punishment could be imposed in accord with the amended Rules or under the unamended Rules. 11. It is apt to note here that the punishment was imposed on 1.12.2005. The relevant part of the order passed by the Director of Treasuries and Accounts is reproduced below: - After a detailed examination of the inquiry report and the explanation of the charged officer, the disciplinary authority finds that the charges f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty specified in clause (iii) of rule 9, except in the case of each member holding a post immediately below his rank; and ii) every Head of Department declared to be the appointing authority may impose on a member of the State Service holding a post at first level or at second level under his control, any of the penalties specified in clauses (i) to (viii) of rule 9. (G.O.Ms. No. 428, GA (Ser.C) Dept. dt. 13.10.1999) iii) The special Chief Secretary and Chief Commissioner of Land Administration may impose any of the penalties specified in clause (ix) and clause (x) of rule 9 on Mandal Revenue Officers. (G.O.Ms. No. 231, GA (Ser.C) Dept. dt. 7.6.2005) 14. The High Court, relying on sub-rule (27)(ii) of Rule 11, has expressed the view that the punishments imposed against the respondent, namely, reversion to the lower rank and at the same time stoppage of increments, come under the purview of two major penalties as contemplated in Rule 9 of the Rules which is not permissible. On a perusal of the order passed by the High Court, it is evident that the High Court has referred to the unamended Rules. 15. The Rules were amended on 6.12.2003. Under the heading &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the allegations on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. 19. Be it noted, in the said case, the decision rendered in Union of India and others v. K.V. Jankiraman and others[(1991) 4 SCC 109] was explained by stating thus: - The word 'issued' used in this context in Jankiraman it is urged by learned counsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The context in which the word 'issued' has been used, merely means that the decision to initiate disciplinary proceedings is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is juncture, we may fruitfully refer to a passage from Maxwell on the Interpretation of Statute, 12th edition, wherein it has been stated thus: - Perhaps no rule of construction is more firmly established than thus - 'that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only'. The rule has, in fact, two aspects, for it, 'involves another and subordinate rule, to the effect that a statute is not to be construed so as to have greater retrospective operation than its language renders necessary'. 24. In Francis Bennion's Statutory Interpretation, 2nd Edn., while emphasizing on the concept of retrospective legislation and rights, the learned author has stated thus: - The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peration of a statute, and further a greater retrospectively cannot be conferred on a statute than the language makes it necessary. 27. In the case at hand, the notification uses the phraseology that clause (vii) shall be substituted with the amending clause. The provision which is substituted by the amending Rules, does not obliterate the rights of the parties as if they never existed. A substituted provision is the resultant factor of the amendment in the Rules and it shall guide the consequences that follow from the amended Rules. In Bhagat Ram Sharma v. Union of India and others[AIR 1988 SC 740], a two-Judge Bench, while dealing with the Punjab Public Service Commission (Conditions of Service) Regulations, 1958, making a distinction between two regulations, opined that in the absence of any provision giving Regulation 8(3) a retrospective operation, the same cannot prima facie bear a greater retroactive effect than intended. In this context, the Court proceeded to state as follows: - 17. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed day. 28. In Pyare Lal Sharma v. Managing Director and others[(1989) 3 SCC 448], the Court was dealing with Regulation 16.14 of Jammu and Kashmir Industries Employees Service Rules and Regulations. Be it noted, the said regulation was amended on April 21, 1983. In the earlier regulations, certain grounds were provided for termination of service of a permanent employee. In the amended regulation, the ground, namely, unauthorized absence, was added apart from other grounds. The services of the appellants therein were terminated on the ground of unauthorized absence. The Court scanned the scheme of Regulation 16.14 before amendment which consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground and the company, the employer therein, had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on 20-4-1983 and grounds (c) and (d) were added. The amended regulation could not operate retrospectively but only from the date of the amendment. Ground (c) under which action was taken came into existence only on 20-4-1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may also note that in the said case, the Court observed that the doctrine of fairness also is to be considered to be a relevant factor for construing the retrospective operation of a statute. 33. In view of the aforesaid, we have no hesitation in mind that the amended Rule despite having been substituted has no retrospective effect. That apart, the notification uses the phraseology shall be substituted which clearly indicates the fact that the amended Rule is prospective. 34. The controversy does not rest there. The learned counsel for the State has urged that even if the Rule is not retrospective, the decision having been taken after the Rules have come into force, it is the amended Rule which would be applicable. It is propounded by him that there could be alteration of service conditions by framing the subsequent rule or regulation and, hence, the date of the decision is the relevant date to attract the applicability of the rule. It is also highlighted that the respondent, in the obtaining circumstances, had no vested right to be imposed a particular punishment under the unamended Rules. 35. To appreciate the aforesaid stand, we think it apposite to survey certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upto January 10, 1968. A question arose whether the vested rights which had accrued to the petitioner therein in 1969, 1970 and 1971 had been taken away. Dealing with the controversy, the three-Judge Bench referred to the Constitution Bench decision in State of Gujarat v. Raman Lal Keshav Lal Soni(1983) 2 SCC 33] and, eventually, pronounced thus: - In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to be well settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of the rules with retrospective effect. 38. In Raman Lal Keshav Lal Soni (supra), the Court had observed that the amending Act which has been made retrospective to navigate around the obstacles of Article 311 and Article 14 of the Constitution to bring about an artificial situation could not be allowed to stand. The Constitution Bench had posed a question whether a law could be made to destroy today's accrued constitutional rights by artificially reverting to a situation which existed 17 years before and answered it in the negative. It may be noted with profit that in the said case, the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Delhi High Court which transferred it to the Central Administrative Tribunal after coming into force of the Administrative Tribunals Act, 1985. The Tribunal treated the said notification as an executive instruction and opined that the same could not be accepted to be a statutory amendment of the existing rules governing the running allowance. The said order was not challenged by the Railway Administration. However, a notification was issued on 5.12.1988, the validity of which was challenged in some pending petitions.As various Benches of the Tribunal rendered conflicting decisions, the matter was referred to a larger Bench and the Full Bench of the Tribunal opined that though under the proviso to Article 309 of the Constitution the President has power to promulgate rules with retrospective effect, yet it is subject to the condition that the rules do not offend any constitutional rights or deprive an employee of his valuable vested right like pension after retirement as such deprivation of vested right is violative of Article 14 of the Constitution being unreasonable and arbitrary.A three-Judge Bench of this Court referred the matter to the larger Bench by passing the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution Bench stated that in the said case, the Court was concerned with the pension payable to the employees after their retirement. It took note of the fact that the respondents were no longer in service on the date of issuance of the impugned notification and the amendments in the rules were not restricted in their application in futuro. It was further observed that the amendments applied to employees who had already retired and are no longer in service on the date when the notifications were issued.After referring to the pronouncements in Deokinandan Prasad v. State of Bihar[(1971) 2 SCC 330], D.S. Nakara v. Union of India[(1983) 1 SCC 305] and Indian Ex-Services League v. Union of India[(1991) 2 SCC 104], it has been ruled thus: - 33. Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers the disciplinary authority to issue a direction, if necessary, whether the delinquent would earn increment of pay during the period of such reduction and whether such reduction will or will not have the effect of postponement in future increments of pay. Rule 9(vii)(b) deals with reduction to lower timescale of pay and other reductions which we have already stated. There is a distinction between reduction to a lower stage in the time scale of pay and reduction to a lower time scale of pay. Needless to say, in clause (vii)(a), there is no provision for reduction to a lower rank or lower grade or post. That is separately provided in clause (vii)(b). Whenever there is a reduction to a lower scale in the timescale of pay for a specified period, the employee remains in the said post and cadre but the scale of pay is reduced to a lower stage. Reduction to a lower time scale of pay has more serious impact than the reduction in the stage of pay itself. Reduction to a lower post has a severe consequence. Similarly, reduction in lower rank in the seniority has a different concept. 42. Bestowing our thoughtful considerations we find that as far as the major penalty under Rule 9(vii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule position, we would like to refer to certain authorities rendered in the context of clause (1) of Article 20 of the Constitution. We are absolutely conscious that there are certain authorities of this Court wherein it has been laid down that Article 20(1) of the Constitution is not applicable to civil consequences but only to criminal offences. However, by way of analogy, we will be referring to certain authorities for the purpose of understanding what constitutes retrospective penal consequence in its conceptual essentiality. 46. In K. Satwant Singh v. The State of Punjab[AIR 1960 SC 266], the question arose with regard to the penalty imposed under Section 420 of the Indian Penal Code. At the time of occurrence, Section 420 of the Indian Penal Code did not provide for minimum sentence of fine. By virtue of an amendment, imposition of minimum fine became compulsory. The Constitution Bench, dealing with the said facet, opined thus: - In the present case a sentence of imprisonment was, in fact, imposed and the total of fines imposed, whether described as ordinary or compulsory , was not less than the amount of money procured by the appellant by means of his offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to that extent, Mr. Dholakia submits that the decision of the Constitution Bench of this Court in Satwant Singh's case requires reconsideration as it has not taken into account the ratio of an important decision of the United States Supreme Court in the case of Elbert B. Lindsay v. State of Washington, (1937) 81 Law Ed 1182. We are bound by the decision of the Constitution Bench. It has held the field for a quarter of a century without challenge and non-consideration of an American decision which apparently was not than cited before this Court does not at all justify the submission at the Bar for a reconsideration of the decision of this Court in Satwant Singh's case (AIR 1960 SC 266). 48. In Tiwari Kanhaiyalal etc. v. The Commissioner of Income-tax, Delhi[AIR 1975 SC 902], while dealing with a penal provision under the Income-tax Act, 1922 and Income-tax Act, 1961 in the backdrop of clause (1) of Article 20 of the Constitution, this Court opined that the punishment provided under the 1961 Act being greater than the one engrafted under the provisions under the 1922 Act, the appellant therein was not entitled to press into the service the second part of clause (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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