Government of A.P. Vs. P. Sadananda Murthy and Another - Court Judgment

Excerpt:
service - disciplinary proceedings - section 4 of andhra pradesh civil services (disciplinary proceedings) tribunal act, 1960 - misconduct of officials - whether government bound to refer disciplinary proceeding to tribunal - held, after amendment of section 4 government can exercise its discretion in referring enquiry relating to misconduct before tribunals. - - this, again indicates that the choice to refer or not to refer the case to the tribunal for disciplinary proceedings or to withdraw any case already referred to the tribunal, became available to the government only after the amendment of the principal act by act 6 of 1993.'9. it is now well settled, having regard to the decision of justice frankfurter in vitarelli v. 10. applying the well settled principles and having regard to the language used in section 4 as it stood prior to the amendment, there cannot be any doubt whatsoever that the intent of the legislature was to take away the jurisdiction ofthe state in such matters and confer the exclusive jurisdiction in relation thereto upon the tribunal.orders.b. sinha, cj 1. although the matter was listed under the heading 'for interlocutory orders', with the consent of the parties, hearing of the main writ petition itself was take up.2. the writ petitioner is aggrieved by an order dated 23-11-1998 passed in oa no.5118 of 1992 on the file of the andhra pradesh administrative tribunal.3. the only question which arose before the learned tribunal and before this court is as to whether the departmental proceedings initiated against the respondent by the state was maintable.4. the learned tribunal, inter alia, held that having regard to the provisions of a.p. civil services (disciplinary proceedings tribunal) act, 1960 (hereinafter called as 'the act'), which has been amended by a.p. act no.6 of 1993, the state has lostjurisdiction to initiate departmental proceedings and in terms thereof, it ought to have referred the matter to the tribunal under the act.5. the learned counsel for the petitioner has drawn our attention to a decision of this court in m.p. satyanarayrana v. the state of andhra pradesh, 1970 (2) aplj 43, which is an authority for the proposition that the state is the sole repository power for initiation of the disciplinary proceedings.6. the conditions of service of an employee either may be governed by a statute or by rules framed in terms of the proviso appended to article 309 of the constitution of india. the mode and manner of holding a departmental proceeding against a delinquent employee being a condition of service, the legislature of the state has the requisite legislative competence to enact a law in that regard. by reason of the provisions of the said act, a new form has been created. once a new forum has been created, there cannot be any doubt whatsoever that the jurisdiction of the state to initiate a departmental proceeding has been taken away. the state, as an employer, does not have the inherent right to conduct a departmental proceeding itself. it must follow the provisions of the act. section 4 of the act prior to its amendment reads thus:'4. cases to be referred to tribunal:--the government shall refer to the tribunal for enquiry and report such cases as may be prescribed of allegations of misconduct on the part of government servants.'7. the said provisions after the amendment reads thus:'4. cases to be referred to tribunal:--the government may refer to the tribunal for enquiry and report such casesas may be prescribed of allegations of misconduct on the part of government servants.'8. this aspect of the matter is squarely covered by a decision of the apex court in state of andhra pradesh v. k. ramachandran, air 1998 sc 1093, wherein in no uncertain terms its was held that:'section 4 of the act which was in mandatory terms was amended by andhra pradesh act, 6 of 1993 and the word 'shall' occurring in section 4 was replaced by the words 'may', which gave a discretion to the government to refer or not to refer the matter to the tribunal. section 4a which was inserted in the principal act by the same amending act, namely, andhra pradesh act 6 of 1993, gave power to the government to withdraw at any stage, any case from the tribunal before its conclusion. this, again indicates that the choice to refer or not to refer the case to the tribunal for disciplinary proceedings or to withdraw any case already referred to the tribunal, became available to the government only after the amendment of the principal act by act 6 of 1993.'9. it is now well settled, having regard to the decision of justice frankfurter in vitarelli v. seaton, (1959) 359 us 535, that he who takes the procedural sword must perish with the sword. further more, the state has no right to get the alleged misconduct on the part of the delinquent officer enquired into in a forum which is not contemplated under the statue.10. applying the well settled principles and having regard to the language used in section 4 as it stood prior to the amendment, there cannot be any doubt whatsoever that the intent of the legislature was to take away the jurisdiction ofthe state in such matters and confer the exclusive jurisdiction in relation thereto upon the tribunal. there is no merit in the writ petition.11. the writ petition is accordingly dismissed. there shall be no order as to costs.

Judgment:
ORDER

S.B. SINHA, CJ

1. Although the matter was listed under the heading 'for interlocutory orders', with the consent of the parties, hearing of the main writ petition itself was take up.

2. The writ petitioner is aggrieved by an order dated 23-11-1998 passed in OA No.5118 of 1992 on the file of the Andhra Pradesh Administrative Tribunal.

3. The only question which arose before the learned Tribunal and before this Court is as to whether the departmental proceedings initiated against the respondent by the State was maintable.

4. The learned Tribunal, inter alia, held that having regard to the provisions of A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 (hereinafter called as 'the Act'), which has been amended by A.P. Act No.6 of 1993, the State has lostjurisdiction to initiate departmental proceedings and in terms thereof, it ought to have referred the matter to the Tribunal under the Act.

5. The learned Counsel for the petitioner has drawn our attention to a decision of this Court in M.P. Satyanarayrana v. The State of Andhra Pradesh, 1970 (2) APLJ 43, which is an authority for the proposition that the State is the sole repository power for initiation of the disciplinary proceedings.

6. The conditions of service of an employee either may be governed by a Statute or by Rules framed in terms of the proviso appended to Article 309 of the Constitution of India. The mode and manner of holding a departmental proceeding against a delinquent employee being a condition of service, the Legislature of the State has the requisite legislative competence to enact a law in that regard. By reason of the provisions of the said Act, a new form has been created. Once a new forum has been created, there cannot be any doubt whatsoever that the jurisdiction of the State to initiate a departmental proceeding has been taken away. The State, as an employer, does not have the inherent right to conduct a departmental proceeding itself. It must follow the provisions of the Act. Section 4 of the Act prior to its amendment reads thus:

'4. Cases to be referred to Tribunal:--The Government shall refer to the Tribunal for enquiry and report such cases as may be prescribed of allegations of misconduct on the part of Government Servants.'

7. The said provisions after the amendment reads thus:

'4. Cases to be referred to Tribunal:--The Government may refer to the Tribunal for enquiry and report such casesas may be prescribed of allegations of misconduct on the part of Government Servants.'

8. This aspect of the matter is squarely covered by a decision of the Apex Court in State of Andhra Pradesh v. K. Ramachandran, AIR 1998 SC 1093, wherein in no uncertain terms its was held that:

'Section 4 of the Act which was in mandatory terms was amended by Andhra Pradesh Act, 6 of 1993 and the word 'shall' occurring in Section 4 was replaced by the words 'may', which gave a discretion to the Government to refer or not to refer the matter to the Tribunal. Section 4A which was inserted in the Principal Act by the same amending Act, namely, Andhra Pradesh Act 6 of 1993, gave power to the Government to withdraw at any stage, any case from the Tribunal before its conclusion. This, again indicates that the choice to refer or not to refer the case to the Tribunal for disciplinary proceedings or to withdraw any case already referred to the Tribunal, became available to the Government only after the amendment of the principal Act by Act 6 of 1993.'

9. It is now well settled, having regard to the decision of Justice Frankfurter in Vitarelli v. Seaton, (1959) 359 US 535, that he who takes the procedural sword must perish with the Sword. Further more, the State has no right to get the alleged misconduct on the part of the delinquent officer enquired into in a forum which is not contemplated under the statue.

10. Applying the well settled principles and having regard to the language used in Section 4 as it stood prior to the amendment, there cannot be any doubt whatsoever that the intent of the Legislature was to take away the jurisdiction ofthe State in such matters and confer the exclusive jurisdiction in relation thereto upon the Tribunal. There is no merit in the writ petition.

11. The writ petition is accordingly dismissed. There shall be no order as to costs.