Andhra Pradesh High Court - Amravati
M.R.A. Samuel, vs The State Of Andhra Pradesh, on 18 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.17187 OF 2020
ORDER:
This petition under Article 226 of the Constitution of India is filed for issue of writ of mandamus declaring the action of placing the petitioner under suspension from service vide order dated 24.08.2020,Rc.No.ESE02-12021/238/2020-PESHI-CSE, as illegal, arbitrary and violative of principles of natural justice and Articles 14, 19(1)(g) and 21 of the Constitution of India and consequently reinstate him in the same post.
2. The petitioner joined in Education Department as Junior Assistant in the year 1989 at Vizianagaram and worked with utmost satisfaction of the authorities. The petitioner served at different places and as on date, working as Assistant Director in the office of the Regional Joint Director, School Education Department, Kadapa, on promotion from different cadres. Till date, no remarks are recorded against the petitioner at any time. Thus, petitioner discharged his duties with due diligence and honestly.
3. While working at Kadapa as Assistant Director in the office of Regional Joint Director of Education Department, one Konda Sudhakar Reddy, C.Suresh Babu, who are superintendents working in the office of DEO, Kadapa and Sri M.Venkata Krishna Reddy, RJDSE Kadapa, have conspired together and started harassing the petitioner in one way or the other for different personal reasons. All of them have conspired together and sent a Telugu letter to the 2nd respondent from one press reporter by name Anil Proddatur. He made a complaint against the petitioner 2 by addressing a letter to the Commissioner, School Education Department, alleging that he is misusing his official power and revealing official secrets of the Department, to the third parties and thereby he is minting money. It is also alleged that with the money, he purchased house at Visakhapatnam and thereby tarnishing the image of the Department. It is also alleged that he is lodging fake complaints against the department officials by name Palle Ramesh and others and that he is taking photographs of the letters received in the inward department and sharing the said photographs to the outsiders as such he is revealing the official information to various third parties even before such information reached the concerned departments, hence requested to take appropriate action against the petitioner to safeguard the interest of the Education Department and to keep up the prestige of the Department. The allegations made in the complaint are false and baseless but he was backed by departmental officials only with a view to harass him in one way or the other and they transformed their idea into reality and sent those complaints only with a view to send him out from the present station.
4. On receipt of the letter, Regional Joint Director, School Education Department - 4th respondent herein, issued notice to the petitioner dated 18.08.2020 vide Rc.No.2641/B2/2020 calling for his remarks on the complaint submitted by the press reporter Anil Proddatur. Accordingly, petitioner submitted his remarks on 19.08.2020 denying the allegations. It is specifically contended that there is no iota of truth in the allegations made in the complaint and it is not based on any material but without considering the remarks submitted by the petitioner to the 4th 3 respondent, the petitioner was placed under suspension vide impugned order dated 24.08.2020.
5. The impugned suspension order is questioned on the following grounds.
a) There is no iota of truth in the allegations made in the complaint lodged against the petitioner.
b) The disciplinary authority did not afford any opportunity to the petitioner and recorded no satisfaction to place the petitioner under suspension in the absence of any material for order of suspension, is illegal and arbitrary.
c) Placing the petitioner under suspension on the baseless and vague complaint letter lodged by the press reporter against the petitioner without considering the lurking malice behind the letter is a serious illegality.
d) On account of placing the petitioner under suspension, his career will be affected seriously besides tarnishing his image in the society and that the impugned order is arbitrary and illegal and requested to set aside the same.
6. The respondent did not file any counter but advanced arguments during hearing.
7. Learned counsel for the petitioner Sri P.S.P.Suresh Kumar, contended that the allegations made against the petitioner is not based on any material and the alleged voice messages sent along with complaint, are not placed before the Court and the order is silent with regard to such material. Therefore, in the absence of 4 any iota of truth in the allegations, the impugned suspension order in the Writ Petition is liable to be set aside.
8. Mere recording of satisfaction of the authorities without any basis is not sufficient in compliance of Rule 8 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, and when such transfer is mala fide, the order cannot be sustained and in support of his contention, he placed reliance on judgment by the Division Bench of this Court reported in A.B.Venkateswara rao Vs State of Andhra Pradesh1 represented by Chief Secretary through Government and draw the attention of this Court to the para Nos.17,18 and 19 of the judgment in support of his contention.
9. Finally, it is contended that on account of such impugned order, the image of the petitioner is tarnished in the public at large besides stigma on the career of the petitioner and if he is allowed to be under suspension till completion of the departmental proceedings, it is contrary to the law laid down by the Apex Court in Ajay Kumar Choudhary2 and G.O.Ms.No.86 dated 08.03.1994 and requested to set aside the order.
10. Whereas learned Government Pleader for Services, Sri Ashwatha Narayana contended that the Court must be slow in interfering with suspension orders passed on administrative side by the State and its instrumentalities, in the present facts of the case, along with the complaint, voice messages are submitted to the competent authority and on the basis of the voice messages 1 2020 LawSuit(AP) 166 2 2015 (7) SCC 291 5 only, the 4th respondent concluded that there is prima facie material to proceed against the petitioner to take disciplinary action by initiating disciplinary proceedings and it is suffice to place the petitioner under suspension as his continuation in the office seriously affects the administration and it amounts allowing perpetration of illegal activities to tarnish the image of the department itself and requested to dismiss the Writ Petition.
11. Considering the viable contentions available in the record, the sole point that arises for consideration is:-
Whether order of suspension is liable to be set aside on any of the grounds urged by the petitioner?
POINT:
Admittedly, the petitioner is working as Assistant Director in the office of the Regional Joint Director, School Education Department, Kadapa. It appears from the material on record that there are rival groups in the office working against one another. Petitioner appears to be a member of one group. Konda Sudhakar Reddy, C.Suresh Babu and others are supporting the rival group but at the behest of the petitioner, those two persons allegedly sent the complaint through press reporter Anil Proddatur and acting thereupon, the 4th respondent called for remarks on the complaint and dissatisfied with the remarks, the petitioner was placed under suspension vide impugned order Rc.No.ESE02-12021/238/2020- PESHI-CSE, dated 24.08.2020, but this Court cannot examine the truth or otherwise in the allegations at this stage, while exercising powers under Article 226 of the Constitution of India. At best, this Court can examine the regularity of the procedure followed by the 6 authorities in passing administrative order, while exercising power under Article 226 of the Constitution of India. Therefore, it is appropriate to advert to the relevant provisions in Andhra Pradesh Civil Services (CCA) Rules, 1991, and law declared by the Apex Court time and again to find out whether the order passed by the 4th respondent placing the petitioner under suspension, which is impugned in the writ petition, is in compliance of Rule 8 of the Andhra Pradesh Civil Services (CCA) Rules, 1991, or it is tainted by any mala fides with an ulterior motive to tarnish the image of the petitioner and whether such order is supported by material to record satisfaction of the concerned authorities.
12. The petitioner is governed by the Andhra Pradesh Civil Services (CCA) Rules, 1991. Rule 8 is the relevant rule that deals with suspension of a Government servant.
Suspension: - (1) A member of a Service may be placed under suspension from service-
(a) where a disciplinary proceeding against him is contemplated or is pending, or
(b) where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State, or
(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
(d) A member of a service may be placed under suspension from service even if the offence for which he was charged does not have bearing on the discharge of his official duties.
The suspension order under Rule 8 is not punitive in nature as a penalty after completion of inquiry as contemplated under Rule 9 of the same rules. The order challenged is only a suspension in contemplation of disciplinary proceedings against the petitioner. Thus, rule 8 empowers the competent authority to place a member's service under suspension but the rule specifies 7 authorities competent to place various members of the state services under suspension but in the present case, the petitioner did not challenge the competency of the 4th respondent to place the petitioner under suspension. Therefore, this Court is not required to examine the competency of 4th respondent to pass the impugned order.
13. The meaning of suspension is to debar from any privilege of office, emoluments etc., for a time. The real effect of an order of suspension is though an employee is continued to be member of the Government service, he is not permitted to work, further, during the period of his suspension, he is paid only some allowances generally called subsistence allowance, which is less than his salary instead of pay and allowances he will be entitled to, if he is not suspended. An order of suspension no doubt affects the Government servant as aforesaid but there is no basis for thinking that because of the order of suspension, he ceases to be a member of service, vide Kemchand Vs Union of India3. Suspension from service cannot be also equated with reduction in rank vide Dr.G. Thimma Reddy Vs State of Andhra.
14. The suspension is the effect of temporarily suspending the relationship of master and servant and during this period the employee is not permitted to work and employer is not bound to pay vide Jammu University Vs D.K. Rampal4. An order of suspension of the Government servant does not put an end to his service under the Government. The real effect of the order of 3 AIR 1963 SC 687 4 AIR 1977 SC 1146 8 suspension is that he continues to be member of the Government service but not permitted to work and further, during the period of suspension he is paid in the same allowance generally called subsistence allowance. An order of suspension, unless the departmental inquiry is completed within a reasonable time, affects a Government servant injuriously. The very expression subsistence allowance has an undeniable penal significance. The expression 'life' does not merely connote animal existence or a continued drudgery through life. It has much wider meaning. Although suspension is not one of the punishments specified in rules vide O.P. Gupta v. Union of India5. Thus, it is undeniable that the effect of suspension is serious on the career and in the office also in the public life. Therefore, before passing an order, the authorities have to apply their mind and if the authority found that his continuation in the office during pendency of the inquiry, allowing him to work may adversely affect the pending inquiry or contemplated inquiry. The Government servant can be placed under suspension subject to filing some material to record prima facie satisfaction that the petitioner is indulged in such activities amounting to misconduct as defined under Rule 3 of the A.P. Civil Services (Conduct) Rules or other rules of the same.
15. Keeping in view of the effect of suspension, it is appropriate to examine the legality of the impugned order in the writ petition. The petitioner is undisputedly working as Assistant Director in the office of the Regional Joint Director, School Education Department, Kadapa. The allegation against him is that he is disclosing official information and minting money and acquired property at 5 AIR 1987 SC 2257 9 Visakhapatnam with the ill-gotten money and that he is sending anonymous complaints against the other officials working in the department and that he is disclosing official information to outsiders thereby tarnishing the image of the department. The allegations made in the complaint submitted by the said Anil disclose that he also submitted certain voice messages along with the complaint which discloses that he is committing theft of information in files and providing those files to the outsiders. This act, if true, is serious and prejudicial to the interest of the State but the voice messages are not placed on record by the petitioner along with the complaint and it is not known whether such voice messages were actually furnished to the petitioner along with the written complaint, while calling remarks of the petitioner and the petition is totally silent on non-furnishing of such voice messages to the petitioner, while calling for remarks by the 4th respondent, before placing him under suspension vide impugned orders. Therefore, based on the material furnished along with the complaint, the petitioner is placed under suspension after considering the remarks of the petitioner. Though the petitioner made certain attributions against the other employees working in the department, there is absolutely nothing on record to establish the same prima facie and the petitioner never gave any complaint against those persons, who allegedly subjecting the petitioner to harassment while discharging his duties, for the first time, the petitioner invented the story of harassing him by the Superintendents working in the office obviously for the reasons best known to him, may be to come out from the complaint. 10
16. In the 3rd para of the order, the 4th respondent stated that after careful consideration of available material, he concluded that there is prima facie evidence against the petitioner and satisfied that it is necessary to place the petitioner under suspension from the office of Assistant Director of School Education. He also referred the Rule 8 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, while placing the petitioner under suspension. According to Rule 8(1)(b) of the rules, wherein in the opinion of the authority competent to place the Government servant under suspension, if he has engaged himself in activities prejudicial to the interest of the security of the State, the Government servant can be placed under suspension. Here, the allegations made in the complaint, if true and the voice messages support such allegations, it is certainly prejudicial to the interest of the State, since disclosing official information to the third parties even before acting on those information by the departmental authorities would seriously affect the interest of the State and it will have its impact on the Department itself, as such the person who is acting or indulging in such activities prejudicial to the interest of the State has to be dealt with in accordance with law and if such person is allowed to continue to work in the Department, he would continue to indulge in such activities. Those activities may have some impact on the inquiry contemplated against the petitioner as per Rule 20 of the Rules. Therefore, placing a Government servant based on such serious allegations, if true, is justifiable.
17. Clause (1) of Article 311 of the Constitution of India has no application to a situation where a government servant has been 11 merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. In certain cases, suspension may cause stigma, even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot, in the strict legal sense and by any stretch of imagination, be treated as a punishment. (Ashok Kumar Aggarwal6; O.P. Gupta v. Union of India ; and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd).
18. An order of interim suspension can be passed against the employee while an inquiry/investigation is pending against him Suspending an officer, and thereby disabling him from performing the duties of his office on the basis that the contract is subsisting, is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. (Balvantrai Ratilal Patel v. State of Maharashtra ; T. Cajee v. U. Jormanik Siem ; R. P. Kapur7; Bhimal Kumar Mohanty8; V.P. Gidroniya9; Jammu University v. D.K. Rampal). Where the power to suspend is provided for either in the contract of employment or in the statute or the rules framed thereunder, 6 (2013) 16 SCC 147 7 AIR 1964 SC 787 8 (1994) 4 SCC 126 9 (1970) 1 SCC 362 12 the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay his full salary and allowances. (B.R. Patel10; Hanley v. Pease & Partners, Ltd; Wallwork v. Fielding and Boston Deep Sea Fishing and Ice Co. v. Ansell ).
19. If the order of suspension is a valid order, it has suspended the contract of service and the government servant is entitled to receive only such subsistence allowance as might be payable under the rules and regulations governing his terms and conditions of service(Jammu University11). As an employer can suspend an employee pending an inquiry into his conduct, the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is a provision in the Rules providing for the scale of payment during suspension, the payment would be in accordance therewith. On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him. (R.P. Kapur12; V.P. Girdroniya13; T. Cajee14; and Balvantray Ratilal Patel15; Tarak Nath Ghosh16; Bhimal Kumar Mohanty17).
10
AIR 1968 SC 800 11 AIR 1977 SC 1146 12 AIR 1964 SC 787 13 (1970) 1 SCC 362 14 (1961) 1 SCR 750 = AIR 1961 SC 276 15 AIR 1968 SC 800 13
20. An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge. (Ashok Kumar Aggarwal18; Bimal Kumar Mohanty19; R.P. Kapur20; and Balvantrai Ratilal Patel21. The importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons, cannot be over emphasized. While such action may be against the immediate interest of the government servant, yet it is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. (Khem Chand v. Union of India).
21. Ordinarily, a government servant is placed under suspension to restrain him from availing the further opportunity to perpetrate the alleged misconduct or to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry, etc. It would also remove the impression, among members of the service that dereliction of duty would pay. 16
(1971) 1 SCC 734 17 (1994) 4 SCC 126 18 (2013) 16 SCC 147 19 (1994) 4 SCC 126 20 AIR 1964 SC 787 21 AIR 1968 SC 800 14 (Ashok Kumar Aggarwal22 Bimal Kumar Mohanty23). When serious allegations of misconduct are imputed against a member of a service, normally it would not be desirable to allow him to continue in the post where he is functioning. The government may rightly take the view that an officer, against whom serious imputations are made, should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. (Tarak Nath Ghosh24). The purpose of suspension is generally to facilitate a departmental enquiry and to ensure that, while such enquiry is going on-it may relate to serious lapses on the part of a public servant-, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. (R.P. Kapur25).
22. The effect on public interest, due to the employee's continuation in office, is also a relevant and determining factor. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. At this stage, it is not desirable for the court to find out as to which version is true when there are claims and counterclaims on factual issues. 22
(2013) 16 SCC 147 23 (1994) 4 SCC 126 24 (1971) 1 SCC 734 25 AIR 1964 SC 787 15 (Ashok Kumar Aggarwal26). No conclusion can be arrived at without examining the entire record. It is always advisable to allow disciplinary proceedings to continue unhindered, and the concerned employee kept out of the mischiefs range. If he is exonerated, he would then be entitled to all the benefits from the date of the order of suspension. (U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan; Bhimal Kumar Mohanty27). The usual ground for suspension, pending a criminal proceeding, is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. (R.P. Kapur28).
23. The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a vindictive misuse of power. A suspension order cannot be actuated by mala fides, arbitrariness, or be passed for an ulterior purpose. (Ashok Kumar Aggarwal's case (referred (25) supra)). An order of suspension should not be passed in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account. (Ashok Kumar Aggarwal's case). It should be made after consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The authority should also take into account all available material as to whether, in a given case, it is advisable 26 (2013) 16 SCC 147 27 (1994) 4 SCC 126 28 AIR 1964 SC 787 16 to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. (Ashok Kumar Aggarwal's case). Ordinarily, an order of suspension is passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated, and the nature of the evidence placed before it, on application of mind by the disciplinary authority. (Ashok Kumar Aggarwal; Bimal Kumar Mohanty29).
24. Whether the employee should or should not continue in office during the period of inquiry is a matter to be assessed by the concerned authority. Ordinarily, the Court should not interfere with orders of suspension unless they are passed mala fide and without there being even prima facie evidence on record connecting the employee with the misconduct in question. (Sanjiv Rajan30). The court cannot act as if it is an appellate forum de hors the power of judicial review. (Ashok Kumar Aggarwal). The Court or the Tribunal must consider each case on its own facts and no general law or formula of universal application can be laid down in this regard. (Ashok Kumar Aggarwal; Bimal Kumar Mohanty31). Each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office 29 (1994) 4 SCC 126 30 1993 Supp (3) SCC 483 31 (1994) 4 SCC 126 17 while facing departmental inquiry or trial of a criminal charge. (Bhimal Kumar Mohanty's case).
25. Even if the present case is examined based on the law referred above, the Court must be slow in interfering with such suspension orders. When the competent authority recorded its satisfaction based on the material placed before him along with the complaint that itself suffice to place a Government servant under suspension. Though the effect of suspension is serious on the career of the employee but debarring him from discharging his duties temporarily is only to avoid his interference or continuously indulging in such activities prejudicial to the interest of the state. Normally, an appointing authority or disciplinary authority seeks to suspend an employee pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission. The order of suspension would be passed after taking into consideration of the gravity of the misconduct sought to be enquired into or investigated and the nature of evidence placed before the appointing authority and on application of mind by the disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a 18 punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose, the suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge vide State of Orissa Vs Bimal Kumar Mohanty32 referred above.
26. In view of the law declared by the Apex Court in the judgment referred above, this Court has to examine the facts of the present case. The first requirement is gravity of the charge of misconduct. The allegation against the petitioner is that he is disclosing information to the third parties and collected money. The same is recorded in voice messages and such voice messages 32 (1994) 4 SCC 126 19 are also allegedly sent to the 4th respondent but it is not placed on record either by the petitioner or by the Government Pleader for Services. Even it was not denied by the petitioner in the affidavit except contending that it is mala fide. In the absence of denial, the voice messages, if any annexed to the complaint in support of the allegation therein, are true, it is a grave misconduct since such acts are prejudicial to the interest of the State. Therefore, keeping in view of the gravity of the misconduct sought to be enquired into, the petitioner is placed under suspension by the 4th respondent.
27. The second requirement to place the Government servant under suspension is there must be some evidence before placing a Government servant under suspension. Here in this case, the 4th respondent concluded that there is prima facie evidence in support of the allegations perhaps the voice messages or other material, though not referred specifically in the order. The said voice messages are sufficient to form the basis to prima facie to conclude that petitioner is indulged in the activities prejudicial to the interest of the State.
28. A bare look at the impugned order, it is clear that the disciplinary authority - 4th respondent herein has applied his mind to the facts of the case and passed an order, not as an administrative routine.
29. As discussed above in the earlier paras, the Courts must be slow in interfering with the order of suspension while exercising power under Article 226 of the Constitution of India more particularly when the Court is satisfied that there is some material 20 in support of the satisfaction recorded by the 4th respondent and not tainted by mala fides.
30. One of the allegations made in the petition is that the order is tainted by mala fides. The reason for attribution of mala fides is the alleged harassment of the petitioner by two of the superintendents working in RJD office by name Konda Sudhakar Reddy and C.Suresh Babu but it is absolutely baseless as the petitioner never made any complaint against those employees earlier but for the first time, the rivalry is highlighted somehow to sneak away from the proceedings. Therefore, on the basis of such allegations, this Court cannot interfere with the order of suspension impugned in the writ petition.
31. Learned counsel for the petitioner placed reliance on Division Bench judgment of this Court in A.B.Venkateswara Rao Vs State Of A.P33 referred above and drawn attention to para 17,18 and 19 of the judgment, where the Court after analysing the law, laid down three requirements for passing an order placing a Government servant under suspension. The factors which are necessary for placing officer under suspension are a) The circumstances of the case b) nature of charges c) the satisfaction necessary and desirability.
32. The Division Bench further reiterated that the authority should be satisfied based on the circumstances of the case, the evidence collected till then and nature of charges, to place the officer under suspension. In para 19, the Division Bench of the High Court adverted to the judgment in Bimal Kumary Mohanty 33 2020 LawSuit(AP) 166 21 and Ashok Kumar Aggarwal's case including A.K.K Nambiar34 case where the Court laid down two factors for placing an officer under suspension and such suspension is warranted under the rules and must be honest exercise of power. The Court can only come to conclusion that out of honest exercise of power or of the suspension wherein, as per the rule, when the material examined by the authority before suspending the officer is seen by the Court and not otherwise. The law laid down by the constitutional Bench of Apex Court is not in dispute as discussed in the above paras. More so, in this case, the petitioner did not attribute any mala fides to the 4th respondent, who placed the petitioner under suspension but attributed mala fides to the other employees in the cadre of Superintendents who are allegedly harassing the petitioner for different reasons. The order was passed by the 4th respondent in his official capacity and when no mala fides are attributed against the 4th respondent, the Court need not examine the malus animus on the part of the 4th respondent or malice in law or malice in fact. On the other hand, the petitioner had neither pleaded nor established either malice in fact or malice in law. Therefore, it is difficult to accept the contention of the petitioner that the suspension order is tainted by mala fides.
33. The petitioner approached this Court to set aside the impugned order of suspension on various grounds discussed above, but this Court finds no substance in the contention. However, the order of suspension is liable to be reviewed for every six months, in exercise of its executive power under Article 162 of the Constitution of India, the Government issued G.O.Ms.No.86 34 (1969) 3 SCC 864 22 General Administration (Ser.C) Department, dated 08.03.1994, directed that the order of suspension against a government servant should be reviewed at the end of every six months; the appropriate reviewing authority should take a decision regarding continuance or otherwise of the employee concerned under suspension, with reference to the nature of charges, where the delay in finalisation of the inquiry proceedings cannot be attributed to the employee or when there is no interference from the employee in facilitating the inquiry; an outer limit be provided, as two years from the date of suspension, failing which the public servant should be reinstated without prejudice to the proceedings being pursued; however, in exceptional cases, considering the gravity of the charges, one could be continued under suspension even beyond a period of two years, especially in cases where there is a deliberate delay caused due to non-cooperation of the employee concerned; the concerned Principal Secretary/Secretary of the department should review suspension, in cases of their department, at an interval of six months with the representative of Anti-Corruption Bureau, if the proceedings arose out of the investigation conducted by Anti- Corruption Bureau; and they should make suitable recommendations as to the desirability or otherwise of further continuance of the officers under suspension. The executive instructions issued in G.O.Ms.No.86 dated 08.03.1994 were, more or less, reiterated in the subsequent instructions issued in G.O.Ms.No.526 dated 19.08.2008. Therefore, in view of the G.Os referred above if for any reason the suspension need not be continued, the reviewing authority may take a decision to reinstate the petitioner cancelling the suspension.
23
34. The main thrust of the learned counsel for the petitioner is that when the suspension is tainted by mala fides not supported by any material, the Court can interfere with the suspension orders. No doubt, the Court can interfere with such mala fides orders not supported by any material, but interference is limited. However, in this case, as discussed above, there is some matter in Ajay Kumar Choudhary's case. The Apex Court observed that if the inquiry is not completed within 90 days, the suspension has to be revoked but in the later judgments of the judgment of the Supreme Court, in Ajay Kumar Choudhary's case, held that Rule 10(6) of the 1965 Rules and Rule 8(5) of the State Rules and the executive instructions issued in this regard have been rendered redundant, is not unfounded. As the law declared by the Supreme Court is binding on the High Court, it would be inappropriate to say anything more about the judgment. The Supreme Court in Ajay Kumar Choudhary's case referred above drew a distinction between cases where a charge sheet is filed within 90 days of the order of suspension and cases where it is not. The latter has been held to result in putting to an end the order of suspension, while the former has been held to require a reasoned order, extending the period of suspension, to be passed by the Government. However, in Tarak Nath Ghosh35, the Supreme Court held that, in principle, there is no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where, on receipt of allegations of grave misconduct against him, the Government is of opinion that it would not be proper to allow the 35 (1971) 1 SCC 734 24 officer concerned to function in the ordinary way. Again, in Ashok Kumar Aggarwal's case, the Supreme Court held that the delinquent cannot be considered to be any better of after the charge-sheet has been filed against him in the Court on conclusion of the investigation than his position during the investigation of the case itself.
35. After referring to the earlier Judgments in O.P. Gupta36, where it was held that suspension of an employee was injurious to his interests and must not be continued for an unreasonably long period and, therefore, an order of suspension should not be lightly passed; to K. Sukhendar Reddy v. State of A.P. which castigated selective suspension perpetuated indefinitely in circumstances where other persons involved had not been subjected to any scrutiny; and State of A.P. v. N. Radhakishan wherein it was observed that it would be fair to make the assumption of prejudice if there was unexplained delay in the conclusion of proceedings; the Supreme Court, in Ajay Kumar Choudhary's case, observed that suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the Memorandum of Charges, and eventually culminate after even longer delay.
36
(1987) 4 SCC 328 25
36. Thus the Apex Court did not take into consideration of the judgment in Ashok Kumar Aggarwal's case and other constitutional Bench judgments of Supreme Court Khem Chand37, R.P. Kapur38 and V.P. Girdroniya39; as also the other judgments of the Supreme Court in Ashok Kumar Aggarwal; Sanjiv Rajan40; L. Srinivasan41; and Deepak Kumar Bhola42 and therefore, the interference is not necessitated in this case by this Court based on the principle laid down in Ajay Kumar Choudhary's case. All these principles were considered by the Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Buddana Venkata Murali Krishna Vs State Of A.P.43 to which I am one of the members of the Division Bench. Therefore, applying the same principle to the present facts of the case, it is difficult to interfere with the administrative order of suspension passed by exercising power under Rule 8(1) of A.P.Civil Services (CCL) Rules, 1991, keeping in view of the seriousness and gravity of the misconduct contemplated to be enquired into and the material i.e., voice messages along with the complaint by the complainant Anil Proddaturu and recording of satisfaction by the 4th respondent while passing impugned order of suspension of the petitioner and it is supported by prima facie evidence.
37
AIR 1963 SC 687 = 1963 Supp (1) SCR 229 38 AIR 1964 SC 787 39 (1970) 1 SCC 362 40 1993 Supp (3) SCC 483 41 (1996) 3 SCC 157 42 (1997) 4 SCC 1 43 2016 (3) ALT 727 26
37. The order impugned in the writ petition placing the petitioner under suspension till completion of inquiry, he appears to be erroneous since the suspension order is required to be reviewed at the end of every six months as discussed in the earlier paras vide G.O.Ms.Nos.86 and 526 referred above. Hence, it is obligatory on the part of the 4th respondent to review the order at the end of every six months period and take administrative decision either to continue the Government servant under suspension or revoke the same in the interest of the State. Therefore, the order of suspension impugned in the Writ Petition does not preclude the authorities to review this order of suspension at the end of every six months strictly adhering to G.O.Ms.Nos.86 and 526 referred above, otherwise it would amount to suspension ad infinitum which may cause serious prejudice to the petitioner and remain as stigma throughout his career besides affecting the promotional chances and causing financial loss. Accordingly, the point is answered.
38. In view of my foregoing discussion, I find no ground to set aside the impugned order of suspension, dated 24.08.2020 vide Rc.No.ESE02-12021/238/2020-PESHI-CSE and the petition is liable to be dismissed.
39. In the result, the Writ Petition is dismissed. No costs.
The miscellaneous applications pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:18.02.2021 AKN 27 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No.17187 OF 2020 Date:18-02-2021 AKN