# THE GOVERNMENT OF ANDHRA PRADESH AND OTHERS v. CH. GANDHI

- **Citation:** [2013] 2 S.C.R. 20
- **Court:** Supreme Court of India
- **Decided:** 2013-02-19
- **Case number:** Civil Appeal No. 1427-1428 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-government-of-andhra-pradesh-and-others-v-ch-gandhi-28869
- **Pages:** 36

## Headnote

SERVICE LAW:
Disciplinary proceedings - Penalty - Disciplinary
proceedings initiated under unamended rule - Penalty
imposed in terms of amended rule - Held: In the case at
hand, the disciplinary proceeding was initiated by serving a
charge-sheet for the purpose of imposition of a major penalty
- Employee had no vested right to be imposed a particular
punishment as envisaged under the unamended rules -
Unamended r.9(vii) was only dealing with reduction or
reversion, but stipulation of postponement of future
increments has come by way of amendment - The same
being a lesser punishment than the maximum, is imposable
and the disciplinary authority has not committed any error by
imposing the said punishment, regard being had to the nature
of charges - It does not violate any Constitutional protection -
Andhra Pradesh Civil Services (Classification, Control and
Appeal) Rules, 1991 - r. 9(vii)(b).
Service Law - Conditions of service - Amendment -
Retrospective operaion - Held: There is a presumption
against the retrospective operation of a statute - 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 the instant case, the amended Rule
despite having been substituted has no retrospective effect.
[2013] 2 S.C.R. 20
20
A
B
C
D
E
F
G
H
21
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI
Disciplinary proceedings initiated against the
respondent, a Senior Accountant in the Sub-Treasury,
culminated in the penalty of his reversion to the post of
Junior Accountant for two years with the stipulation that
there would be postponement of future increments. The
State Administrative Tribunal upheld the order. The High
Court set aside the punishment holding that it amounted
to imposition of two penalties. However, the authorities
were granted liberty to pass appropriate orders keeping
in view the Andhra Pradesh Civil Services (Classification,
Control and Appeal) Rules, 1991.
In the instant appeals filed by the State Government
the question for consideration before the Court was:
whether the punishment could be imposed in accord
with the amended Rules or under the unamended Rules?
Allowing the appeals, the Court
HELD: 1.1 The disciplinary proceedings were
initiated under the unamended Rules. The disciplinary
authority has imposed the penalty under substituted subrule (vii) of r. 9 of the Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991.
However, the amended Rules were not brought to the
notice of the High Court and it has referred to the
unamended Rules.There is a presumption against the
retrospective operation of a statute, and further a greater
retrospectivity cannot be conferred on a statute than the
language makes it necessary. [para 14, 15, 20 and 26] [32G; 33-A-B; 35-C; 38-C]
Union of India and Others v. K.V. Jankiraman and Others
1991 (3) SCR 790 =1991 (4) SCC 109; Delhi Development
Authority v. H.C. Khurana 1993 (2) SCR 1033 = 1993 (3) SCC
196; Union of India and Others v. Sangram Keshari Nayak
2007 (9) SCR 177 = 2007 (7) SCC 704; Coal India Ltd. and
Others v. Saroj Kumar Mishra 2007 (5) SCR 233 = 2007 (9)
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
22
SCC 625; Tejshree Ghag and Others v. Prakash Parashuram
Patil and Others 2007 (7) SCR 214 = 2007 (6) SCC 220; and
Marripati Nagaraja and Others v. Government of Andhra
Pradesh and Others 2007 (11) SCR 506 = 2007 (11) SCC
522; Hitendra Vishnu Thakur v. State of Maharashtra and
Others 1994 (1) Suppl. SCR 360 = 1994 (4) SCC 602 -
referred to.
Maxwell on the Interpretation of Statute, 12th edition; and
Francis Bennion's Statutory Interpretation, 2nd Edn. -
referred to.
1.2 On a perusal of the unamended r.9, 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 in the lower grade or pay not being lower than that
to which he was directly recruited. It did not have

## Text

_Characters 0–39,805 of 67,269. This is a partial read: ask again with offset=39805 for what follows._

A
B
C
D
E
F
G
H
THE GOVERNMENT OF ANDHRA PRADESH AND
OTHERS
v.
CH. GANDHI
(Civil Appeal No. 1427-1428 of 2013)
FEBRUARY 19, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
SERVICE LAW:
Disciplinary proceedings - Penalty - Disciplinary
proceedings initiated under unamended rule - Penalty
imposed in terms of amended rule - Held: In the case at
hand, the disciplinary proceeding was initiated by serving a
charge-sheet for the purpose of imposition of a major penalty
- Employee had no vested right to be imposed a particular
punishment as envisaged under the unamended rules -
Unamended r.9(vii) was only dealing with reduction or
reversion, but stipulation of postponement of future
increments has come by way of amendment - The same
being a lesser punishment than the maximum, is imposable
and the disciplinary authority has not committed any error by
imposing the said punishment, regard being had to the nature
of charges - It does not violate any Constitutional protection -
Andhra Pradesh Civil Services (Classification, Control and
Appeal) Rules, 1991 - r. 9(vii)(b).
Service Law - Conditions of service - Amendment -
Retrospective operaion - Held: There is a presumption
against the retrospective operation of a statute - 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 the instant case, the amended Rule
despite having been substituted has no retrospective effect.
[2013] 2 S.C.R. 20
20
A
B
C
D
E
F
G
H
21
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI
Disciplinary proceedings initiated against the
respondent, a Senior Accountant in the Sub-Treasury,
culminated in the penalty of his reversion to the post of
Junior Accountant for two years with the stipulation that
there would be postponement of future increments. The
State Administrative Tribunal upheld the order. The High
Court set aside the punishment holding that it amounted
to imposition of two penalties. However, the authorities
were granted liberty to pass appropriate orders keeping
in view the Andhra Pradesh Civil Services (Classification,
Control and Appeal) Rules, 1991.
In the instant appeals filed by the State Government
the question for consideration before the Court was:
whether the punishment could be imposed in accord
with the amended Rules or under the unamended Rules?
Allowing the appeals, the Court
HELD: 1.1 The disciplinary proceedings were
initiated under the unamended Rules. The disciplinary
authority has imposed the penalty under substituted subrule (vii) of r. 9 of the Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991.
However, the amended Rules were not brought to the
notice of the High Court and it has referred to the
unamended Rules.There is a presumption against the
retrospective operation of a statute, and further a greater
retrospectivity cannot be conferred on a statute than the
language makes it necessary. [para 14, 15, 20 and 26] [32G; 33-A-B; 35-C; 38-C]
Union of India and Others v. K.V. Jankiraman and Others
1991 (3) SCR 790 =1991 (4) SCC 109; Delhi Development
Authority v. H.C. Khurana 1993 (2) SCR 1033 = 1993 (3) SCC
196; Union of India and Others v. Sangram Keshari Nayak
2007 (9) SCR 177 = 2007 (7) SCC 704; Coal India Ltd. and
Others v. Saroj Kumar Mishra 2007 (5) SCR 233 = 2007 (9)
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
22
SCC 625; Tejshree Ghag and Others v. Prakash Parashuram
Patil and Others 2007 (7) SCR 214 = 2007 (6) SCC 220; and
Marripati Nagaraja and Others v. Government of Andhra
Pradesh and Others 2007 (11) SCR 506 = 2007 (11) SCC
522; Hitendra Vishnu Thakur v. State of Maharashtra and
Others 1994 (1) Suppl. SCR 360 = 1994 (4) SCC 602 -
referred to.
Maxwell on the Interpretation of Statute, 12th edition; and
Francis Bennion's Statutory Interpretation, 2nd Edn. -
referred to.
1.2 On a perusal of the unamended r.9, 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 in the lower grade or pay not being lower than that
to which he was directly recruited. It did not have the
stipulation of postponement of future increment on
restoration to the higher category. After the amendment,
r.9 (vii) has been bifurcated into two parts. Under r.
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 expiry
of such period, the reduction would or would not have
the effect of postponing the future increments of his pay.
Rule 9(vii)(b) deals with reduction to lower time-scale of
pay, grade, post or service which shall ordinarily be a bar
for promotion with or without further direction regarding
conditions of restoration to the grade or post or service
from which the Government servant was reduced and his
seniority and pay on such restoration to that grade, post
or service. [para 17 and 41] [33-G-H; 34-A; 49-D-G]
1.3 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
A
B
C
D
E
F
G
H
23
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI
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. 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. [para 27 and 33] [38-D-E; 42-E]
Government of India and Others v. Indian Tobacco
Association 2005 (2) Suppl. SCR 859 = 2005 (7) SCC 396;
Pyare Lal Sharma v. Managing Director and Others 1989 (3)
SCR 428 = 1989 (3) SCC 448 - relied on.
Bhagat Ram Sharma v. Union of India and Others 1988
SCR 1034 = 1988 Suppl. SCC 30; Ritesh Agarwal and
Another v. Securities and Exchange Board of India and Others
2008 (8) SCR 553 = 2008 (8) SCC 205; Roshan Lal Tandon
v. Union of India and Another 1968 SCR 185 = 1967 AIR
1889; Raj Kumar v. Union of India and Others 1975 (3) SCR
963 = 1975 AIR 1116 - referred to.
Senior Superintendent, R.M.S. Cochin and Another v.
K.V. Gopinath, Sorter 1972 (3) SCR 530 =1972 AIR 1487 -
stands overruled.
"Principles of Statutory Interpretation" by G.P. Singh -
referred to Salmond and Williams on Contracts - referred
to.
2.1 The rules have been framed under Art. 309 of the
Constitution. There can be no cavil that by amending the
rule, a punishment cannot be imposed in respect of
amisconduct or delinquency which was not amisconduct
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
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
24
might have been inflicted under the rule in force at the
time of commission of delinquency or misconduct. [para
43] [51-A-C]
Ex-Capt. K.C. Arora and Another v. State of Haryana and
Others 1984 (3) SCR 623 = 1984 (3) SCC 281; State of
Gujarat v. Raman Lal Keshav Lal Soni 1983 (2) SCR 598 =
1983 (3) SCC 33; K. Satwant Singh v. The State of Punjab
1960 SCR 89 = 1960 AIR 266; Smt. Maya Rani Punj v.
Commissioner of Income-tax, Delhi 1985 (3) Suppl. SCR 827
= 1986 AIR 293; Tiwari Kanhaiyalal etc. v. The Commissioner
of Income-tax, Delhi 1975 (3) SCR 927 = 1975 AIR 902 -
referred to.
2.2 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 chargesheet for the purpose of imposition of a 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.
The rule making authority thought it apposite to amend
the rules to introduce a different kind of punishment
which is lesser than the maximum punishment or, for that
matter, lesser punishment than that of compulsory
retirement from service. Rule 9(vii) was only dealing with
reduction or reversion but issuance of any other direction
was not a part of it. It has come by way of amendment.
The same being a lesser punishment than the maximum,
is imposable and the disciplinary authority has not
committed any error by imposing the said punishment,
regard being had to the nature of charges. [para 42 and
50] [50-F-G; 54-F-H; 55-A-B]
A
B
C
D
E
F
G
H
25
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI
2.3 The rule making authority has splitted r. 9(vii) into
two parts - one is harsher than the other, but, both are
less severe than the other punishments, namely,
compulsory retirement, removal from service or
dismissal. The reason behind it is not to let off one with
simple reduction but to give 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.
[para 50] [55-C-D]
2.4 The order passed by the High Court that a double
punishment has been imposed does not withstand
scrutiny and is set aside and the order of punishment
imposed by the disciplinary authority is restored. [para
51-52] [55-E-F]
Case Law Reference:
1993 (2) SCR 1033
referred to
para 18
1991 (3) SCR 790
referred to
para 19
2007 (9) SCR 177
referred to
para 20
2007 (5) SCR 233
referred to
para 20
2007 (7) SCR 214
referred to
para 21
2007 (11) SCR 506
referred to
para 22
1994 (1) Suppl. SCR 360 relied on
para 25
1988 SCR 1034
referred to
para 27
1989 (3) SCR 428
relied on
para 28
2008 (8) SCR 553
referred to
para 31
2005 (2) Suppl. SCR 859
relied on
para 32
1968 SCR 185
referred to
para 35
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
26
1975 (3) SCR 963
referred to
para 36
1972 (3) SCR 530
stands overruled
para 36
1984 (3) SCR 623
referred to
para 37
1983 (2) SCR 598
referred to
para 37
1997(3) Suppl. SCR 63
relied on
para 39
1960 SCR 89
referred to
para 46
1985 (3) Suppl. SCR 827
referred to
para 47
 1975 (3) SCR 927
referred to
para 48
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1427-1428 of 2013.
From the Judgment & Orders dated 14.06.2007 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in Writ
Petition No. 12177 of 2007 and dated 08.02.2008 in Review
WPMP No. 126152 of 2007 in WP No. 12177 of 2007.
G.N. Reddy for the Appellants.
R.S. Krishnan, C.S.N. Mohan Rao for the Respondent.
The Judgment of the Court was delivered by
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
A
B
C
D
E
F
G
H
27
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
disciplinary authority had imposed two major penalties. Be it
noted, the High Court granted liberty to the department to pass
appropriate orders 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 withdrawing money
from the currency chest and allowed others to operate the
currency chest by using the keys of joint custodian; and that he
had failed to submit the currency chest slip to R.B.I. on
15.4.2003 in respect of the currency chest transactions of
15.4.2003 and also failed to submit the daily sheets of
15.4.2003 and 16.4.2003.
4. An Enquiry Officer was appointed to enquire into the
charges and he submitted the report that the charges were
proven. On the basis of the enquiry report, the disciplinary
authority, after following the requisite procedure, imposed the
penalty of reversion to the post of Junior Accountant for two
years with the stipulation that there would be postponement of
future increments.
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
28
5. Aggrieved by the said punishment, the respondent
approached the Tribunal in O.A. No. 923 of 2006 and raised
various points assailing the validity of the initiation of the
proceeding, the manner in which the enquiry was conducted
and lastly, that the punishment imposed was disproportionate
to the misconduct. The Tribunal referred to the Rule position
and came to hold 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
punishment which had been concurred with by the tribunal and
clarified that the said overturning of the orders would not
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
A
B
C
D
E
F
G
H
29
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
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, contended
that the interpretation placed by the High Court on the Rules
cannot be found fault with inasmuch as the language employed
in the Rules is absolutely plain, clear and unambiguous and,
on a careful reading of the same, it is manifest that under the
Rules, imposition of two major penalties is not permissible. It
is further urged by him that when the language employed in the
Rules has been differently couched and both the employer and
employee are bound by the Rules, what could be
jurisprudentially permissible need not be adverted to in this
case. The learned counsel would further submit that the
delinquent employee could not have been imposed such a
punishment under Rule 9 of the Rules prior to its amendment
as his case would be governed by the unamended Rules since
the disciplinary proceeding was initiated prior to the
amendment and, at that time, the punishment that was imposed
was not envisaged.
9. In reply, the learned counsel for the State submitted that
the respondent would be governed under the new Rules as
clause (vii) of Rule 9 has been substituted and the term
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
30
"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 framed against Sri Ch. Gandhi the
then Senior Accountant and incharge Sub Treasury Officer,
Sub Treasury (non-banking) Nakrekal 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
A
B
C
D
E
F
G
H
31
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
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 effect of
postponing the future increments of his pay;
(vii)
(b) reduction to lower time-scale of pay, grade, post
or service which shall ordinarily be a bar to the
promotion of the Government servant to the timescale of pay, grade, post or service from which he
was reduced, with or without further directions,
regarding conditions of restoration to the grade or
post or service from which the Government servant
was reduced and his seniority and pay on such
restoration to that grade, post or service;
(G.O.Ms. No. 373, G.A.(Ser.C) Dept., dt: 6.12.2003)
(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."
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
32
13. Sub-rule (27) of Rule 11 which has been relied on by
the High Court reads as follows: -
"(27) Without prejudice to the foregoing provisions;
(i)
every Head of Department may impose on a
member of the State Services under his control, 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 'minor penalties' after clause (v)(a), clause (v)(b) was
added. Under the heading 'major penalties', clause 7 was
A
B
C
D
E
F
G
H
33
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
substituted and the said clause 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 in the lower
grade or pay not being lower than that to which he was directly
recruited. It did not have the stipulation of postponement of
future increment on restoration to the higher category. Thus,
the seminal issue is whether the respondent could have been
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
34
imposed a punishment under the amended Rules. It is
necessary to state here that the amended Rules were not
brought to the notice of the High Court.
18. It is useful to note here that the charge-sheet was
issued on 14.11.2003. In Delhi Development Authority v. H.C.
Khurana1, a two-Judge Bench posed the question relating to
the stage when it can be said that a decision has been taken
to initiate the disciplinary proceeding and, in this context,
opined that the decision to initiate disciplinary proceedings
cannot be subsequent to the issuance of the charge-sheet since
issue of the charge-sheet is a consequence of the decision to
initiate disciplinary proceedings. Framing the charge-sheet is
the first step taken for holding the enquiry 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 Others2 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
1.
(1993) 3 SCC 196.
2.
(1991) 4 SCC 109.
A
B
C
D
E
F
G
H
35
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
to initiate disciplinary proceedings is taken and translated
into action by despatch of the charge-sheet leaving no
doubt that the decision had been taken. The contrary view
would defeat the object by enabling the government 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
Nayak3, 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 Mishra4, 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
Others5, 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 Others6, this Court has ruled that the State,
in exercise of its power conferred upon it under the proviso
appended to Article 309 of the Constitution of India, is entitled
to make rules with retrospective effect and retroactive operation.
Ordinarily, in absence of any rule and that too a rule which was
expressly given a retrospective effect, the rules prevailing as on
the date of the notification are to be applied. But if some rule
has been given a retrospective effect which is within the domain
3.
(2007) 6 SCC 704.
4.
(2007) 9 SCC 625.
5.
(2007) 6 SCC 220.
6.
(2007) 11 SCC 522.
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
36
of the State, unless the same is set aside as being
unconstitutional, the consequences flowing therefrom shall
ensue. In such an event, the applicable rule would not be the
rule which was existing but the one which had been validly
brought on the statute book from an anterior date.
23. Presently, we shall deal with the contention of the
learned counsel for the State who has laid emphasis on the fact
that the said Rule has been substituted by the amendment
dated 16.12.2003 and, therefore, it has to be treated to have
retrospective effect. At this 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 switched on or off,
and the general body of law to the circumambient air.
Clumsy though these images are, they show the
inappropriateness of retrospective laws. If we do
something today, we feel that the law applying to it should
A
B
C
D
E
F
G
H
37
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
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 Others7, 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 presumed to be retrospective in its
application, should not be given an extended meaning and
should be strictly confined to its clearly-defined limits.
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action and right
of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive
law but no such right exists in procedural law.
(iv) A procedural statute should not generally
speaking be applied retrospectively where the result would
be to create new disabilities or obligations or to impose
7.
(1994) 4 SCC 602.
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
38
new duties in respect of transactions already
accomplished.
(v) A statute which not only changes the procedure
but also creates new rights and liabilities shall be
construed to be prospective in operation, unless otherwise
provided, either expressly or by necessary implication."
26. From the aforesaid analysis of law, it is graphically
clear that there is a presumption against the retrospective
operation of a statute, and further a greater retrospectivity
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 Others8, 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 effect of repeal of the existing provision. Such a
law may also provide for the introduction of a new
provision. There is no real distinction between 'repeal' and
8.
AIR 1988 SC 740.
A
B
C
D
E
F
G
H
39
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
an 'amendment'. In Sutherland's Statutory 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 Act. This
arbitrary distinction has been followed by the
Courts, and they have developed separate rules of
construction for each. However, they have
recognized that frequently an Act purporting to be
an amendment has the same qualitative effect as
a repeal - the abrogation of an existing statutory
provision - and have therefore applied the term
'implied repeal' and the rules of construction
applicable to repeals to such amendments."
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
40
18. Amendment is in fact, a wider term and it includes
abrogation or deletion of a provision in an existing statute.
If the amendment of an existing law is small, the Act
professes to amend; if it is extensive, it repeals a law and
re-enacts it. An amendment of substantive law is not
retrospective unless expressly laid down or by necessary
implication inferred.
19. For the sake of completeness, we wish to add that
mere use of the word 'substitution' does not imply that
Regn. 8(3) must relate back to November 1, 1956, the
appointed day."
28. In Pyare Lal Sharma v. Managing Director and
Others9, 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 204-1983 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 and as such, the
period of unauthorised absence which could come within the
mischief of ground (c) has to be the period posterior to 20-41983 and not anterior to that date.
9.
(1989) 3 SCC 448.
A
B
C
D
E
F
G
H
41
GOVERNMENT OF ANDHRA PRADESH AND ORS.
v. CH. GANDHI [DIPAK MISRA, J.]
29. After analyzing the facts, the two-Judge 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 India and Others10, the issue was whether
the Regulations that came into force on 25.10.1995 could apply
to a case where the cause of action arose prior thereto. In the
aforesaid context, it has been held that :-
"Ex facie, a penal statute will not have any retrospective
effect or retroactive operation. If commission of fraud was
complete prior to the said date, the question of invoking
10. (2008) 8 SCC 205.
SUPREME COURT REPORTS [2013] 2 S.C.R.
A
B
C
D
E
F
G
H
42
the penal provisions contained in the said Regulations
including Regulations 3 to 6 would not arise."
32. In this context, we may refer to the observations made
in Government of India and Others v.