Co. Op Corpn Ltd., A.P. Vs. K. Satyanarayana Rao  INSC 1277 (24 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4766 OF
2009 [Arising out of SLP(C) No. 13946/2006] GIRIJAN CO-OP. CORPORATION LTD.,
A.P. ... APPELLANT(S) :VERSUS:
APPEAL NO. 4767 OF 2009 [Arising out of SLP(C) No. 15717/2006] CIVIL APPEAL NO.
4769 OF 2009 [Arising out of SLP(C) No. 15500/2006] CIVIL APPEAL NO. 4770 OF
2009 [Arising out of SLP(C) No. 15772/2006] CIVIL APPEAL NO. 4771 OF 2009
[Arising out of SLP(C) No. 699/2008] ORDER Leave granted.
appeals are directed against the judgment and order dated 14.02.2006 passed by
a Division Bench of the High Court of Judicature of Andhra Pradesh whereby and
whereunder the letters patent appeal filed against the judgment and order dated
14.7.2005 passed by the learned Single Judge of the High Court passed in 2 Writ
Petition No. 799/2007 was affirmed.
herein were employees of the appellant-Corporation. They reached the age of
superannuation some time in 2000. A departmental proceeding was initiated
against the respondents in the year 1999 alleging some financial irregularities
on their part committed in the year 1992-93. Certain amount was sought to be
recovered from them which the appellant allegedly suffered by reason of the
misconduct committed by them shortly before their superannuation.
the question which had been raised before the High Court and found favour with
by both the learned Single Judge as also the Division Bench of the High Court,
was that no disciplinary proceeding could have been initiated against the
respondents and/or continue the same after their retirement. The High Court in
support of the aforementioned finding relied upon a decision of this Court in
Bhagirathi Jena vs. Board of Directors, O.S.F.C., 1999 (3) SCC 666. The High
Court in its order referred to a Circular dated 29.8.1998 which reads as under:
G.C.C. Service Rules - Amendment of Service Rules of G.C.C. for adoption of
Andhra Pradesh Civil Service Code and Andhra Pradesh Fundamental Rules - Reg.
Board Resolution No. 74/98-99 dated 11.8.1998 The Board in its resolution No.
7498-99 have resolved to amend the GCC Service Rules for adoption of Andhra
Pradesh Civil Service Code rules and Andhra Pradesh Fundamental Rules where
ever the G.C.C. service rules are silent.
Unit Officers of G.C.C. are requested to include this para in service rules of
GCC in Chapter I Part-A as Rule 7.
ADOPTION OF GOVT. RULES.
M.D. shall have power to adopt rules under 'Andhra Pradesh Civil Service Ruels'
and Andhra Pradesh Fundamental Rules to its employees whenever the GCC Service
Rules of employees are silent.
of the circular should be acknowledged."
the words "The M.D. shall have power to adopt rules", it was opined
by the High Court that as no such order adopting the said rules by the Managing
Director of the Corporation was brought on record, continuation of the
disciplinary proceedings against the respondents was bad in law.
this Court, however, the Corporation seeks to take a different stand. According
to it, the power to adopt the Government Rules vests in the Board of Directors
and the Managing Director was merely to apply the same.
affidavit affirmed by one K.S.V.R.N. Sarma, Legal Executive/Junior Manager
(Legal) of the Corporation filed on 10th July, 2009 which has been brought to
our notice that in fact the Board of Directors had adopted Rule 7 of Part-A,
Chapter I of the G.C.C. Service Rules by resolution dated 11.8.1998, in terms
whereof the aforementioned circular dated 29.8.1998 has been issued. It was
furthermore contended before the High Court:
say and submit that the respondent herein who is in the cadre of General
Manager has committed certain grave irregularities, misappropriation of huge
Corporation funds, committed criminal breach of trust while working as Senior
Accounts Officer (Comp.) incharge of the subject of industries during 1991-92.
The petitioner Corporation after conduct of enquiry issued him provisional
conclusion orders on 28.4.2000 stating that since he is due to retire on
30.4.2000, he will be allowed to retire on the day without any retirement
benefits till all the pending cases are finalized and to recover the losses
sustained to the tune of Rs. 2,38,855/-. The respondent did not choose to file his
explanation to the said 4 provisional conclusion orders. Thus after affording
him the opportunity, final orders are passed on 3.7.2000 confirming the
provisional conclusion orders. The employees of Corporation besides the
respondent herein are well aware of the said Board resolution and have not
challenged the same in any legal forum so far. The respondent without filing
the statutory appeal before the Board, filed the WP 25073 of 2000 which is
allowed on 12.4.2001 by the Hon'ble High Court of Andhra Pradesh holding that
the disciplinary proceedings cannot be maintained subsequent to the retirement
of the respondent employees."
Jaideep Gupta, learned senior counsel appearing on behalf of the appellant
would raise a two-fold submission before us.
having regard to the bye-laws of the appellant Corporation, the powers to fix
the strength of the establishment and to frame subsidiary regulations for
recruitment, service conditions and disciplinary control of the employees, were
vested in the Board of Directors, and only in terms of the said powers the
following resolution was passed:
approval of the Board to amend ' the GCC Service Rules' for adoption of 'AP
Civil Service Code' and 'A.P.
Rules' wherever the GCC Service Rules are silent.
No. 74/98-99 Approved."
in any event, one of the meanings of the word "adopt", being to
'follow', the Managing Director was merely to follow the rules which are
adopted by the aforementioned resolution of the Board of Directors and he did
not have any independent power to adopt or accept the same.
Ranjan Mukherjee, learned counsel appearing on behalf of the respondents, on
the other hand, would contend that the respondents having 5 retired some time in
2000, this Court may not exercise its discretionary jurisdiction under Article
136 of the Constitution in the above terms. It is not in dispute that before
the High Court what was produced was only the Circular dated 29.8.1998. Neither
the bye-laws nor the resolution purported to have been adopted by the Board of
Directors were brought to the notice of the High Court.
documents whereupon reliance is now sought to be placed, along with the
affidavit affirmed by Shri Sarma, in our opinion, are additional documents
which can be admitted by this Court only in terms of Order 41 Rule 27 of the
Code of Civil Procedure ('CPC'). There was absolutely no reason as to why the
authorities of the appellant did not bring the same to the notice of the High
Court; they being within the power and possession of the Corporation.
therefore, are of the opinion that it is not a fit case where this Court should
exercise its jurisdiction under Order 41 Rule 27 of the CPC or the provisions
akin thereto, keeping in view the fact that the parameters laid down therein
are not satisfied.
So far as
the second contention raised by Mr. Gupta is concerned, we are of the opinion
that the manner in which the word "adopt" has been used in the
circular letter dated 29.8.1998, does not lead to the conclusion that the same
has been used in the sense of following the rules as the word "adopt"
has been preceded by the words "shall have power to". There cannot be
any doubt or dispute that an employer can initiate a departmental proceedings
and/or continue the same only in terms of the rules framed by it. It is also a
well 6 settled law that the disciplinary proceedings are initiated only when a
charge- sheet is issued. See: Union of India vs. This Court in UCO Bank &
Anr. vs. Rajinder Lal Capoor, 2007 (6) SCC 694, has held as under:
The aforementioned Regulation, however, could be invoked only when the
disciplinary proceedings had clearly been initiated prior to the respondent's
ceasing to be in service. The terminologies used therein are of seminal
importance. Only when a disciplinary proceeding has been initiated against an
officer of the bank despite his attaining the age of superannuation, can the
disciplinary proceeding be allowed on the basis of the legal fiction created
there under i.e. continue 'as if he was in service'. Thus, only when a valid
departmental proceeding is initiated by reason of the legal fiction raised in
terms of the said provision, the delinquent officer would be deemed to be in
service although he has reached his age of superannuation. The departmental
proceedings, it is trite law, is not initiated merely by issuance of a show-cause
notice. It is initiated only when a charge-sheet is issued (See Union of India
vs. K.V. Jankiraman, 1991 (4) SCC 109. This aspect of the matter has also been
considered by this Court recently in Goal India Ltd. v. Saroj Kumar Mishra,
2007 (9) SCC 625, wherein it was held that date of application of mind on the
allegations levelled against an officer by the competent authority as a result
whereof a charge- sheet is issued would be the date on which the disciplinary
proceedings are said to have been initiated and not prior thereto.
of a preliminary enquiry, therefore, by itself cannot be a ground for invoking
Clause 20 of the Regulations."
also Ramesh Chandra Sharma v. Punjab National Bank and Anr., 2007 (9) SCC 15
and 2008 (8) SCC 4).
absence of any rules, therefore, a disciplinary proceeding against a retired
employee should not have been continued. The judgment of the High Court, in our
opinion, cannot be said to be faulty. We, however, keeping in view the
subsequent documents brought before us by the appellant, would observe that, in
future, in any other case or before any other authority, the Corporation would
be at liberty to place all the relevant documents and to that effect the
question of law raised by the appellant herein shall remain open.
appeals are dismissed with the aforementioned observations and direction.
However, in the facts and circumstances of this case, there shall be no order
as to costs.
........................J (S.B. SINHA)
........................J (DEEPAK VERMA)
JULY 24, 2009.