K.C.BHANU v. Andhra Pradesh Administrative Tribunal, Hyderabad

Order

(Per the Hon’ble Sri.Justice K.C.Bhanu) WRIT PETITION NO.27530 OF 2008 & CONTEMPT CASE NO.192 OF 2008 The Writ Petition is filed challenging the order dated 21.11.2008 in Original Application No.40 of 2007 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’). The Contempt Case is filed alleging disobedience of the order dated

18.12.2008 in W.P.M.P. No.36066 of 2008 in Writ Petition No.27530 of 2008.

2. The brief facts may be stated as follows: The petitioner was initially appointed as Typist in the office of the first respondent and later she was promoted as Senior Assistant. She retired from service on 30.12.2006. While she was in service, a charge sheet was issued to her for purchasing a plot in her name and in the name of her husband for a consideration of Rs.1,14,000/- and disposing of the same for Rs.4,95,000/-, without obtaining prior permission from the authority concerned, and so she contravened the provisions of the Andhra Pradesh Civil Services (Conduct) Rules, 1 9 6 4 . A regular departmental enquiry was conducted and the Enquiry Officer submitted a report that the charge levelled against her was proved. Accepting the report of the Enquiry Officer, the first respondent-disciplinary authority, Procs. No.2585/B7/VO/98, dated 29.12.2006, imposed punishment of reduction to a lower rank i.e. Typist. Challenging the same, she filed Original Application No.40 of 2007 before the Tribunal. Vide the impugned order in this Writ Petition, the Tribunal set aside the

punishment imposed against the petitioner, but held that the first respondent-Andhra Pradesh Housing Board cannot be treated as ‘local authority’ and therefore the Tribunal has no jurisdiction to decide the matter, and accordingly dismissed the Original Application. Challenging the same, the present Writ Petition is filed by the petitioner/applicant.

3. Learned counsel for the petitioner contended that in view of the ratio laid down in Full Bench decision of the Tribunal in R.P. No.1005 of 1983 dated 28.09.1985, the first respondent-Housing Board comes within the meaning of ‘local authority; that following the decision of the Hon’ble Supreme Court of India in Housing Board of Haryana v. Haryana Housing Board Employees’ Union & others, the Tribunal gave a finding that it has no jurisdiction to decide the matter on the ground that the first respondent-Board is not a ‘local authority’; that the said decision of the Hon’ble Supreme Court has no application to the facts of the present case, and hence, he prays to set aside the finding of the Tribunal on point No.2 of the impugned order and confirm the finding of the Tribunal on point No.1.

4. On the other hand, learned counsel appearing for the first respondent-Housing Board vehemently contended that the first respondent-Board does not come within the purview of ‘local authority’ and that having come to the conclusion that the Tribunal has no jurisdiction to decide the matter, it ought not to have decided the case on merits and therefore the finding in the impugned order on point No.1 is liable to be set aside. WRIT PETITION Nos. 17094 of 2010, 17568 of 2010 & 19659 of 2010 :

5. These Writ Petitions are filed challenging – the order dated

08.12.2009 in Original Application No.2772 of 2006; the order dated

08.12.2009 in Original Application No.2861 of 2006; and the order dated 09.12.2009 in Original Application No.3134 of 2006, passed by the Tribunal.

6. The unofficial respondents herein-applicants are pensioners/ spouses of the pensioners, who or whose spouses retired from service of the Andhra Pradesh Housing Board. They filed the aforesaid Original Applications before the Tribunal challenging the order dated 19.04.2006 issued by the second petitioner herein/second respondent whereby they were called upon to show cause as to why monthly pension being paid to them earlier may not be stopped. The Tribunal, vide the orders impugned in the aforesaid Writ Petitions, held that it has jurisdiction to decide the matter and set aside the impugned orders. Challenging the same, the Housing Board filed these Writ Petitions.

7. Learned counsel appearing for the petitioners/Housing Board advanced same contentions advanced by the learned counsel for the first respondent in Writ Petition No.27530 of 2008.

8. Learned counsel for the unofficial respondents in these Writ Petitions contended that the applicants or spouses of the applicants were being paid pensionary benefits on par with the employees vide G.O. Ms. No.212, Irrigation and Power (P.A.C.II) Department, dated

29.03.1979 and G.O. Ms. No.130, dated 18.03.1981 for about 10 years; that after lapse of 10 years, the impugned show-cause notices were issued to the unofficial respondents calling upon to show cause as to why monthly pension being paid to them earlier may not be stopped; that Housing Board pre-determined the issue and the recitals in the impugned show-cause notices would clearly go to show that it is only a post-decisional opportunity, which does not sub- serve the rules of natural justice; that the impugned notices were issued after lapse of more than one decade; therefore, the Tribunal rightly set aside the same and the impugned orders require no interference by this Court;

9. The points that fall for consideration in these Writ Petitions are - (1) Whether the Andhra Pradesh Housing Board is a ‘local authority’ within the meaning of Section 15 (2) of the Administrative Tribunals Act,1985 ? (2) Whether the Tribunal is correct insofar as setting aside the punishment imposed against the petitioner in Writ Petition No.27530 of 2008 ? (3) Whether the order of the Tribunal is correct in setting aside the show-cause notices vide orders impugned in Writ Petition Nos. 17094 of 2010, 17568 of 2010 & 19659 of 2010 ? POINT No.1: (1) Whether the Andhra Pradesh Housing Board is a ‘local authority’ within the meaning of Section 15 (2) of the Administrative Tribunals Act,1985 ?

10. Learned counsel for the respondents in Writ Petition No.27530 of 2008 placed strong reliance on a decision in Housing Board of Haryana case (1 supra), wherein it is held thus: (para 35) “It will be seen that the Legislature itself has given the Board limited status of "Local Authority" only for the purpose of Land Acquisition Act as also the parent Act, namely, the Haryana Housing Board Act, 1971, under which the Board has been constituted and established. The Legislature has given this status only fictionally as the Board, in reality, is not a "Local Authority" and that too only for a limited purpose. The Legislature could well have given this status to the Board for purposes of other Acts also including the Payment of Bonus Act but this has not been done and consequently the Board cannot, specially' in view of what has been stated above, be treated as "local authority", under the Payment of Bonus Act.” He also placed strong reliance on sub-section (3) of Section 3 of the Andhra Pradesh Housing Board Act, 1956, which reads thus: “For the purposes of this Act, the Land Acquisition Act, 1894 (Central Act-I of 1894), and the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (Andhra Pradesh Act XV of 1960), the Board shall be deemed to be a local authority.” In respect of certain Acts as mentioned in the said provisions, the Andhra Pradesh Housing Board shall be deemed to be a local authority.

11. In Housing Board of Haryana case (1 supra), the decision in Union of India v. R.C. Jain’s case has been referred, wherein it is held thus: (para 2) “What then are the distinctive attributes and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commissioners shares with any other local authority? First, the authorities must have separate legal existence as Corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next. they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc. etc. Broadly we may say that they may be entrusteed with the performance of civic duties and functions which would otherwise be Governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfilment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by Government or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.” The ratio laid down has to be read in the factual background of the case. The question that had fallen for consideration in Housing Board of Haryana case (1 supra) is whether Haryana Housing Board is a ‘local authority’ within the meaning of Section 32 (iv) of the Payment of Bonus Act, 1965. Hence, the ratio laid down in the above decision has no application to the present facts of the case. Considering the provisions of the Andhra Pradesh Housing Board Act, 1956, now, it has to be seen whether the ‘Housing Board’ comes within the meaning of ‘local authority’ within the meaning of Section 15 (2) of the Administrative Tribunals Act, 1985.

12. The Andhra Pradesh Housing Board Act, 1956 is enacted to provide for measures to be taken to deal with and satisfy the need of housing accommodation. The Preamble of the Act is very clear that it is expedient to take such measures, to make such schemes and to carry out such works as are necessary for the purpose of dealing with and satisfying the need of housing accommodation and with that object in view, it is necessary to establish a Board and to make certain other provisions. Section 2 (1) of the Act defines ‘local authority’ which includes Municipal Corporation, Municipal and Town Committees, District Municipalities, Zilla Parishads, Panchayat Samithis and Village Panchayats. This definition has no relevance for the purpose of deciding the jurisdiction.

13. ‘Local authority’ as explained in Section 15 (2) of Administrative Tribunals Act, 1985 reads that the State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and corporations or societies controlled or owned by the State Government. Sub-section (3) of Section 15 of the Act provides that the Administrative Tribunal for a State shall exercise all the jurisdiction, powers and authority exercisable immediately before that date with effect from which the provision came into effect, in relation to (a) recruitment and matters to recruitment, to any concerning service or post in connection with the affairs of such local or other authority or corporation or society; (b) all service matters concerning a person appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to the service of such person in connection with such affairs. Therefore, two requirements have to be fulfilled to bring a local or other authority or corporation or society within the jurisdiction of the Administrative Tribunal, viz. (1) a notification with regard to applicability of the provisions of the Act must have been issued by the State Government; and (2) such local or other authority, corporation or society must be controlled or owned by the State Government. If these two requirements are fulfilled, then the Administrative Tribunal gets jurisdiction to decide the issue involved in terms of Section 15 (3) of the Administrative Tribunals Act, 1985.

14. Insofar as issuance of the Notification is concerned, G.O.Ms. No.652, General Administration (SPF.B) Department, dated

11.11.1989 was published in the Extraordinary issue of Andhra Pradesh Gazette dated 11.11.1989 which reads thus: “In exercise of the powers conferred by sub-section (2) of Section 15 of the Administrative Tribunals Act, 1985 (Central Act 13 of 1985), the Government of Andhra Pradesh hereby specified the Eleventh day of November, 1989 as the date with effect from which the provisions of sub-section (3) of Section 15 of the said Act shall apply to the local authorities under the control of the State Government.” Therefore, a Notification has been issued by the State Government duly applying the provisions of the Act, 1985 to the local authorities which are under the control of the State Government.

15. Section 4 of the Andhra Pradesh Housing Board Act, 1956 provides for constitution of the Board. According to it, Chairman and some Members of the Board are to be appointed by the Government. Officials of various departments in the Government are ex-officio members of the Board.

16. Under Section 21 of the Act, the Government has control over the Board with regard to housing schemes, which reads as follows: the Government, “Duty of Board to undertake Housing Schemes:- Subject to the provisions of this Act and subject to the control of expenditure and undertake works for the framing and execution of such housing schemes as it may consider necessary from time to time, or as may be entrusted to it by the Government. the Board may So, from the above provision, it is clear that the Board has no independent power to undertake housing schemes, and undertaking of the housing schemes is subject to control of the Government. Therefore, the Board is not having independent power to incur expenditure and undertake works for framing and execution of such housing schemes but it is subject to control by the Government. Control is intended to regulate and hold in check and refrain from action.

17. Under Section 23 of the Act, 1956, no housing scheme to be made for area included in improvement scheme or be inconsistent with town planning scheme unless the Government, by general or special order or otherwise direct. Under Section 26 of the Act, 1956, the Government may sanction the programme, the budget and schedule of the staff of officers and servants forwarded to it, with such modifications as it deems fit, and the programme, the object and the schedule so sanctioned shall be laid before the Legislative Assembly as soon as may be after the programme is published. Under Section 27 of the Act, thereafter, the Government shall publish programme so sanctioned by it under Section 26, in the Andhra Pradesh Gazette. Under Section 30 of the Act, after the programme has been sanctioned and published by the Government under Sections 26 and 27, subject to the provisions of Section 29, the Board shall proceed to execute the housing schemes included in the programmes.

18. From the aforesaid provisions, it is clear that the Board cannot act independently in respect of the housing schemes and the budget establishment schedule is controlled by the Government. The Board has no power to execute any housing programme without prior approval and sanction of the State Government. So, the Board is under the exclusive control of the State Government.

19. Further more, a Full Bench of the Tribunal in its order in R.P. Nos.1005 of 1983 and 1419 of 1983, after examination of the provisions of the Andhra Pradesh Housing Board Act, 1956, came to the conclusion that the Andhra Pradesh Housing Board is a local authority amenable to the jurisdiction of the Tribunal. The decision in R.C.Jain’s case (2 supra) has been considered by the Full Bench of the Tribunal in arriving at such a conclusion. But, in the impugned order, the Tribunal simply followed the decision in Housing Board of Haryana’s case (1 supra) and held that the Andhra Pradesh Housing Board cannot be treated as ‘local authority’. It does not contain any reasons since the issue that fell for consideration in Housing Board of Haryana’s case (1 supra) is different from the issue that falls for consideration before the Tribunal in the present case. In the absence of any reasons and without following the Full Bench decision of the Tribunal, which contained reasons, we have no hesitation in holding that the said finding of the Tribunal is perverse and is liable to be set aside and is, accordingly, set aside. As the Notification was issued under Section 15 (2) of the Administrative Tribunals Act, 1985 applying the provisions of sub-section (3) of Section 15 of the said Act to the local authorities under the control of the State Government the Board is under exclusive control of the State Government, the Tribunal has got jurisdiction to decide the issue pertaining to the maters covered under Section 15 (3) of the Act. Accordingly, the point is answered. POINT No. 2 : Whether the Tribunal is correct insofar as setting aside the punishment imposed against the petitioner in Writ Petition No.27530 of 2008 ?

20. The misconduct alleged against the petitioner in Writ Petition No.27530 of 2008 is that she has not obtained permission from the competent authority before acquiring a property in her name and in the name of her husband, and also before disposing of the same. It is not in dispute that as per Conduct Rules, before acquiring an immovable property or disposing of the same, prior permission has to be obtained the authority concerned by a Government employee. The petitioner stated in her explanation that she obtained permission from the higher authorities at the time of purchase of the plot and obtained the loan, but the relevant papers were taken by the Anti Corruption Bureau (ACB) officials at the time of raid in a case pertaining to her husband. As seen from the impugned order in the Original Application, it is clear that to a letter addressed by the Board the Deputy Superintendent of Police, ACB, City Range, Hyderabad, the said authority informed that during searches conducted on the house of Sri P.D.Prakash in C.R. No.1/ACB-CR/98, no document pertaining to the permission obtained by the petitioner or intimation given by her with reference to the plot no.C-51 at Karmanghat, Hyderabad was seized. Therefore, the Enquiry Officer, basing upon the evidence available on record, came to the conclusion that the petitioner failed to produce any documentary evidence about the permission obtained by her from the competent authority, for acquisition or disposal of the plot. The contention of the petitioner that she obtained permission for purchase or disposal of the plot is incorrect. No doubt, on her application for house building advance, the Board sanctioned a loan of Rs.1,35,000/- to her on

28.06.1995, whereas she purchased the plot on 24.04.1995 and disposed of the same on 30.08.1996. Therefore, it is a clear violation of Rule 9 of the Andhra Pradesh Civil Services (Conduct) Rules,

21. The Tribunal has not recorded any finding that it is a case of no evidence. Having observed that there was no evidence available to show that the petitioner had taken prior permission for purchase and alienation of the said plot, the Tribunal ought not to have interfered with the punishment imposed. No doubt, the Tribunal observed that the procedure was not followed by the authorities before imposing the penalty. What is the procedure violated and what are the illegalities committed by the disciplinary authority or the enquiry officer, have not been stated in the impugned order. Unless the Tribunal comes to a conclusion that it is a case of no evidence or that the principles of natural justice have not been followed or that the enquiry was not conducted in accordance with the procedure, the Tribunal ought not to have interfered with the punishment imposed by the disciplinary authority. Therefore, the finding of the Tribunal on this aspect is liable to be set aside and is, accordingly, set aside. The point is answered accordingly.

22. In view of the findings on points 1 and 2, the contempt as alleged in Contempt Case No.192 of 2009 does not lie. Accordingly, the Contempt Case is liable to be dismissed. POINT NO.3 : Whether the order of the Tribunal is correct in setting aside the show-cause notices vide orders impugned in Writ Petition Nos. 17094 of 2010, 17568 of 2010 & 19659 of 2010 ?

23. The unofficial respondents in these Writ Petitions-applicants are pensioners/spouses of the pensioners, who or whose spouses worked as work-charged employees in the establishment of Andhra Pradesh Housing Board. It is not in dispute before this Court that G.O. Ms. No.212, Irrigation and Power (P.A.C.II) Department, dated

29.03.1979 was issued extending pension or pensionary benefits to the employees of work-charged establishment of the Andhra Pradesh Housing Board on par with the Government employees. Accordingly, the said benefits were extended to the unofficial respondents and they are being paid pension and pensionary benefits for the last about 10 years prior to issuance of impugned show-cause notices. After lapse of 10 years, the impugned show-cause notices were issued. Relevant potion of the impugned notice dated 19.04.2006 reads thus: “In the circumstances, you are found to be not eligible for pension/family pension from A.P. Housing Board.” The above observation can be said to be a pre-determined conclusion. In the decision in H.L. Tehran v. Union of India, relied upon by the Tribunal, it is held thus: “In our opinion, the post decisional opportunity of hearing does not sub-serve the Rules of Natural Justice. The authority, who embarks upon a post decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post decisional opportunity.” The Tribunal, basing on the language employed in the impugned notices dated 19.04.2006, came to the conclusion that the action against the unofficial respondents herein is pre-determined by the petitioners herein and so, there is no point in asking the former to submit a reply to the show-cause notices. The above finding cannot be said to be perverse or contrary to law. In the absence of any perversity, the orders under challenge in Writ Petition Nos. 17094 of 2010, 17568 of 2010 & 19659 of 2010 no interference by this Court. The Writ Petitions are devoid of merit and liable to be dismissed.

24. In view of the findings on points 1 to 3, Writ Petition No.27530 of 2008 is allowed; Writ Petition Nos. 17094 of 2010, 17568 of 2010 & 19659 of 2010 are dismissed; and Contempt Case No.192 of 2009 is dismissed. No costs. Miscellaneous Petitions pending, if any, in the Writ Petitions and Contempt Case shall stand closed. _______________ K.C.BHANU, J __________ ANIS, J

06.11.2014 DRK After pronouncement of order, learned counsel for the petitioner in Writ Petition No.27530 of 2008 brought to the notice of this Court that the Housing Board has not preferred any writ petition challenging the finding of the Tribunal with regard to setting aside the punishment imposed on the writ petitioner. The contention of the learned counsel is correct. In the absence of any Writ Petition filed by the Housing board, the finding of the Tribunal has to be confirmed by this Court. Therefore, the finding on point no.2 has to be recalled and is, accordingly, recalled. In view of the fact that the Writ Petition is filed by the writ petitioner challenging the finding of the Tribunal with regard to the jurisdiction, we already held that the Housing Board comes within the meaning of ‘local authority’ under Section 15 (2) of the Administrative Tribunals Act, 1985 Hence, the Writ Petition has to be allowed. Writ Petition No.27530 of 2008 is, accordingly, allowed. _______________ K.C.BHANU, J

06.11.2014 INL/DRK __________ ANIS, J THE HON’BLE SRI JUSTICE K.C.BHANU AND THE H0N’BLE SMT JUSTICE ANIS WRIT PETITION Nos.27530 of 2008, 17094 of 2010, 17568 of 2010 and 19659 of 2010 & Contempt Case No.192 of 2008 .10.2014