Central Administrative Tribunal - Hyderabad
A B Venkateswara Rao vs Home Affairs on 8 May, 2024
1 OA 273/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA NO.273/2023
Date of CAV : 29.04.2024
Date of Pronouncement : 08.05.2024
CORUM:
HON'BLE DR. LATA BASWARAJ PATNE, JUDICIAL MEMBER
HON'BLE MS.SHALINI MISRA, ADMINISTRATIVE MEMBER
A.B.Venkateswara Rao, IPS (AP-1989),
S/o late Sri Balaswamy, Age : 58 years,
R/o 59A-21/3-2, Vijaynagar Colony, Padamata,
Vijayawada, Andhra Pradesh State.
...Applicant
(By Advocate: Shri Y.Balaji)
Vs.
1. State of Andhra Pradesh,
Rep. by Chief Secretary to the Government,
Secretariat, Amaravathi, Vijayawada,
Andhra Pradesh State.
2. The Director General of Police (HoPF),
Government of Andhra Pradesh,
Mangalagiri, Guntur District,
Andhra Pradesh State.
3. Union of India,
Rep. by Secretary to the Government of India,
Ministry of Home Affairs, New Delhi. ...Respondents
(By Advocate Mr.V.Vinod Kumar, Sr.PC for CG for R-3
Mr.D.Pandu Ranga Reddy, GP for AP)
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2 OA 273/2023
ORDER
(Pronounced by Hon'ble Dr. Lata Baswaraj Patne, Member (J))
---
The applicant has filed this OA under Section 19 of the Administrative Tribunal's Act, 1985, seeking the following relief:
"i)To declare the order in G.O.Ms.No.55, General Administration (SC.D) Department, dated 28.06.2022 issued by the 1st Respondent as illegal, arbitrary, mala fide, biased, violative of Rule 3 of All India Service (Discipline & Appeal) Rules, 1969 and in gross violation of the principles of natural just ice and consequently set aside the same;
ii)To direct the 1st Respondent to reinstate the applicant into service forthwith;
iii)and pass such further or other order or orders as the Hon'ble Tribunal deems fit and proper in the circumstances of the case."
2. The brief facts of the case, as stated by the applicant, in nutshell, are as under:
(i) The applicant belongs to All India Service (IPS). The applicant is a Post-Graduate in Engineering from IIT, New Delhi and also Post-Graduate in Economics. He joined All India Service as a 1989 batch IPS Officer borne on Andhra Pradesh Cadre. He was the topper in inter-se seniority in his batch. He has put in unblemished service of 30 years and earned regular promotions on time.
There is no iota of allegations against him during his entire service. He also served in several Districts, ranges, zones and gained experience in various posts in the Police Department. He also served with distinction lin the UN peace keeping force in Bosnia and also Kosovo and was awarded the UN Medal for peace keeping.
(ii) The applicant‟s services were recognized by awarding him the prestigious Indian Police Medal for meritorious services in 2006 and Presidents Police Medal for distinguished services in 2015 and Ati Utkrisht Seva Padak in 2019. He was posted as Additional Director General of Police (Intelligence) on 09.07.2015. It is submitted that the applicant was promoted as Director General of Police on 10.03.2019. On 29.03.2019 he was transferred and attached to the office 3 OA 273/2023 of 2nd respondent and later posted in the rank of Director General of Police, Anti- Corruption Bureau on 22.04.2019.
(iii) There was a change in the Political Government in the State of Andhra Pradesh in May, 2019. Immediately on the first day of change in the State Government, the applicant herein was issued with orders dated 30.05.2019 relieving him from the post of Director General, ACB and was directed to report to the General Administration Department on the premise that he was playing active role in the earlier Government. Thereafter, he was not given any posting orders and not paid any salary.
(iv) The applicant had made two representations dated 06.01.2020 and 28.01.2020 in writing, requesting the State Government to give posting orders and also release of salary and other monetary benefits. As a rebuttal, G.O.Ms.No.18, General Administration (SC.D) Department, dated 08.02.2020 was issued, keeping the applicant under suspension pending initiation of disciplinary proceedings in the matter relating to procurement of security equipment in exercise of the power under Rule 3(1) of the All India Services (Discipline & Appeal) Rules, 1969. The applicant questioned the aforesaid proceedings in OA No.020/0149/2020. This Tribunal, vide order dated 17.03.2020 dismissed the said application. Challenging the aforesaid orders, the applicant filed WP No.8185/2020 before the Hon‟ble High Court of Andhra Pradesh at Amaravati. The Hon‟ble High Court by its order dated 22.05.2020 had allowed the WP, quashing the order passed by this Tribunal and also the order of the 1st Respondent dated 08.02.2020 placing the applicant under suspension. Against the aforesaid order passed by the Hon‟ble High Court, the 1 st Respondent herein filed SLP No.8024 of 2020 and the Hon‟ble Ap[ex Court by its order dated 26.11.2020 had stayed the ;order passed by the Hon‟ble High Court. 4 OA 273/2023 The Supreme Court also made it clear that it will be open for the State Government to serve charge sheet on the respondents if so advised. Pursuant to that, a charge sheet containing three charges was issued on 18.12.2020. The applicant submitted his representation and thereafter, the matter was kept pending. When the matter was listed before the Hon‟ble Supreme Court on 09.03.2021, the Hon‟ble Supreme Court directed the Enquiry Officer to ensure that the enquiry is proceeded on day- to-day basis and concluded as early as possible and not later than 30.04.2021. As per the said order, the Enquiry Officer conducted the enquiry on day-to-day basis and submitted his report to the Government on 22.04.2021.
(v) As it was suspected that with a view to harass the applicant, the first respondent may initiate criminal proceedings, the applicant filed Criminal Petition No.71 of 2021 before the Hon‟ble High Court of Andhra Pradesh at Amaravati and the Hon‟ble High Court by an order dated 07.01.2021 directed that the applicant shall not be arrested in respect of any FIR that may be lodged in the matter relating to purchase of security equipment. Thereafter, the 1st respondent permitted initiation of criminal proceedings and an FIR was registered on 18.03.2021. Pursuant to the aforesaid FIR, the residential premises of the applicant was searched by the officers of the ACB and started conducting investigation. In the meanwhile, the report of disciplinary enquiry which was submitted on 22.04.2021 was sent to the Central Government on 16.12.2021 after a long lapse of nearly 8 months. Thereafter, the Government of India referred the matter to the Union Public Service Commission for its report. The UPSC submitted its report to the Central Government on 21.10.2022.
(vi) The matter relating to the suspension of the applicant came before the 5 OA 273/2023 Hon‟ble Supreme Court on 22.04.2022 and after hearing the parties, the Hon‟ble Supreme Court was pleased to dismiss the same and ordered reinstatement of the applicant into service. Pursuant to the aforesaid order of the Hon‟ble Supreme Court, the 1st respondent by proceedings dated 16.05.2022 reinstated the applicant into service and after lapse of about one month on 14.06.2022 posted the applicant as Commissioner, Printing, Stationery and Stores, Purchases. The applicant assumed charge of the office on 17.06.2022 and was discharging his duties. From the beginning, the 1st Respondent had adopted the hostile attitude towards the applicant and the order of Supreme Court directing reinstatement of the applicant was not palatable to the Government, but, as they are bounded by the order, they made a pretence of compliance of the same by reinstating the applicant into service. On 28.06.2022 the 1st respondent herein issued G.O.Ms.No55, General Administration (SC.D) Department, dated 28.06.2022 stating that a criminal case in FIR No.1 dated 18.03.2021 was registered against the applicant for committing the offences of criminal conspiracy, cheating, criminal breach of trust and criminal misconduct and that the applicant tried to influence the witnesses relating to the criminal trial and that the State Government had already recommended for dismissal of the applicant from service and therefore, pending investigation relating to the criminal charge and in exercise of the powers under Sub-Rule (3) of Rule 3 of All India Services (Disciplinary and Appeal) Rules, 1969, placed the applicant under suspension with immediate effect until termination of the proceedings relating to that charge.
(vii) After considering the report of the UPSC, the Government of India has decided that the penalty of dismissal or removal or compulsory retirement shall not be imposed on the applicant, and advised the State Government to take a decision 6 OA 273/2023 based on recommendations of UPSC which recommended for the punishment of reduction of the time scale of pay by two stages till 31.05.2014, with further directions that he will not earn increments of pay during such period and on expiry of said period, the reduction will have the effect of postponing the future increments of his pay. Pursuant thereto, the State Government had issued a notice on 07.02.2023 calling upon the applicant to submit his explanation regarding the recommendations made by UPSC and accordingly, the applicant submitted his explanations on 02.03.2013 and 16.03.2023 and thereafter, the matter is kept pending awaiting the decision of the State Government. Thus placing the applicant under suspension again on the very same ground of alleged illegalities in procurement of security equipment resulting in registration of criminal case is nothing but illegal exercise of power and passing a fresh order of suspension within two weeks on 28.06.2022 clearly demonstrate the anxiety of the State Government to continue the applicant under suspension without there being any further material warranting such a course. Hence the impugned suspension order is illegal, arbitrary and against the orders of the Hon‟ble Supreme Court.
3. After issuance of notice, the Respondents have appeared through their counsel and filed their reply statement stating that
(i) The applicant is 1989 batch IPS Officer of Andhra Pradesh cadre. Vide G.O.Rt.No.2058, General Administration (SC.C) Department, dated 06.07.2015, Government issued orders among others, posting the applicant herein as Additional Director General of Police, Intelligence. In pursuance of the said orders, the Member of Service assumed office as Additional Director General of Police, Intelligence, Andhra Pradesh on 10.07.2015. The OPS Officers of 1989 batch were empanelled for promotion to the above Super Time Scale (ii) of IPS in the rank of 7 OA 273/2023 Director General of Police in HAG+ Scale in Level 16 in the pay Matrix Rs.2.05,400-2,24,400 vide GO Rt No.527, General Administration (SC.C) Department, dated 09.03.2019. The applicant, on his promotion to the Above Super Time Scale (ii) of IPS, he was retained in the same post viz., Director General of Police, Intelligence, Andhra Pradesh. In GO Rt.No.750, General Administration (SC.C) Department, dated 29.03.2019, the applicant was transferred and directed to report to the Police Headquarters duly handing over the charge to the senior most Officer in his office.
(ii) Further, in GO Rt.No.882, General Administration (SC.C) Department, dated 22.04.2019, Government issued orders posting the applicant as Director General, Anti-Corruption Bureau, Andhra Pradesh. In GO Rt.No.1182, General Administration (SC.C) Department, dated 30.05.2019, Government issued orders transferring the applicant and directing him to report to General Administration Department for further postings. Accordingly, he has reported in General Administration Department on 31.05.2019. The Government issued Memo No.1075875/SC.C/A1/2020-2, dated 18.02.2020 for payment of the pay and allowances.
(iii) In the letter, dated 07.02.2020, the Director General of Police (HoPF) has informed that as per the Government of India supported „Approved Action Plan‟ under the scheme of Modernisation of Police Forces for Inteligence Department, the Andhra Pradesh Police initiated the process of procurement of Aerostat and Unmanned Aerial Vehicle (UAV) worth Rs.25.50 crores through the State Trading Corporation, Hyderabad for anti-extremist and security operations. Due to certain administrative, technical and procedural irregularities noticed during the procurement process, on the advice of the Department, the Purchase Order issued 8 OA 273/2023 in favour of M/s RT Inflatables Objective Limited, Israel by the State Trading Corporation was cancelled and payment withheld. In this connection, a preliminary enquiry has been conducted on the procurement process through CID, A.P while enclosing a copy of the enquiry report submitted by the Additional Director General of Police, CID, Andhra Pradesh, the Director General of Police (HoPF) has informed that as per the enquiry report, prima facie evidence is established on the grave misconduct and irregularities exhibited by the applicant, the then Additional Director General of Police, Intelligence, and requested the Government to take appropriate disciplinary action and further investigation.
(iv) Therefore, Government has decided to place the applicant under suspension for the said serious misconduct, pending initiation of disciplinary proceedings. Accordingly, in exercise of the powers conferred under Rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1969, Government placed the applicant under suspension vide GO Ms.No.18, General Administration (SC.D) Department, dated 08.02.2020. Further it is submitted that, it is not correct to say that the suspension order was issued as a rebuttal of his requests for issue of posting order and drawal of pay and allowances.
(v) Aggrieved by the orders placing him under suspension, the applicant filed OA No.020/019/2020 before this Tribunal, and this Tribunal vide order dated 17.03.2020 dismissed the OA filed by the applicant. The applicant has also filed WP No.8185/2020 before the Hon‟ble High Court of Andhra Pradesh at Amaravati challenging the order of this Tribunal. The Hon‟ble High Court, vice order dated 22.05.2020 had allowed the WP quashed the order passed by this Tribunal and also the order of the Government, dated 08.02.2020 placing the applicant under suspension. Government filed SLP No.8024 of 2020 against the orders passed by 9 OA 273/2023 the Hon‟ble High Court. The Hon‟ble Apex Court, by its order dated 26.11.2020 had stayed the order passed by the Hon‟ble High Court. The Hon‟ble Supreme Court has also made it clear that it will be open for the State Government to serve charge sheet on the respondent if so advised. A charge sheet containing three charges was issued on 18-12-2020. The applicant submitted his representation. The Hon‟ble Apex Court in its orders dated 09.03.2021, directed the Enquiry Officer to ensure that the enquiry is proceeded on day-to-day basis and concluded as early as possible and not later than 30.04.2021. The Inquiring Authority conducted the inquiry and submitted his report to the Government on 22.04.2021.
(vi) The Director General, ACB in his letter dated 07.01-2021 has stated that the Regular Enquiry disclosed that there are prima facie evidences against the applicant, who committed Criminal misconduct by abusing official position as Public Servant with fraudulent and dishonest intention and requested to accord necessary permission under Section 17A of Prevention of Corruption (Amendment) Act, 2018, to register criminal case under relevant sections of PC Act, 1988, PC (Amendment) Act, 2018 and Indian Penal Code to investigate. On request of the DG, ACB, Government, vide Memo No.1101652/SC.D/2020, dated 19.01.2021, accord permission to the DG, ACB, Andhra Pradesh under Section 17A of the Prevention of Corruption (Amendment) Act, 2018 to register criminal case against the applicant under relevant sections of the PC Act, 1988, the PC (Amendment) Act, 2018 and the IPC and to investigate into the criminal misconduct by abusing official position as Public Servant with fraudulent and dishonest intention.
(vii) On receipt of the Inquiry Report of the Inquiring Authority dated 22.04.2021 and on receipt of the written representation, dated 18.05.2021 of the applicant, on the findings of the Inquiring Authority, Government, after 10 OA 273/2023 examination, a letter dated 23.07.2021 (but not 16.12.2021 as mentioned by the applicant in the OA) was addressed to the Ministry of Home Affairs, GoI, New Delhi proposing for imposing major punishment against the applicant in the matter. The Ministry of Home Affairs have submitted their proposal to the UPSC on 21-02- 2022 and the advice of the UPSC dated 21.10.2022, which has been received through the MHA, Govt. of India, letter dated 10-01-2023 in the Government.
(viii) After posting was given, it was noticed that the applicant tried to Influence witnesses relating to the criminal trial. Further considering the fact that serious charges of corruption are involved, the applicant was placed under suspension with immediate effect until termination of the proceedings vide G.O.Ms.No.55, General Administration (SC.D) Department, dated 28-06-2022 in exercise the powers under Sub-rule (3) of Rule (3) of All India Services (Discipline & Appeal) Rules, 1969.
(ix) The Government of India, Ministry of Home Affairs in their letter No.26011/54/2020-IPS.II, dated 10.01.2023 have informed that the record of the case relating to disciplinary proceedings initiated by the State Government against the applicant vide charge-sheet dated 18-12-2020 were submitted to UPSC for advice of the Commission on the quantum of penalty that may be imposed on him. The UPSC considered the entire record of the case and concluded that Article of Charge-I is partially proved, Article of Charge-II is proved and Article of Charge- III is not proved and advised to imposition of penalty on the charged Officer that -
"Reduction in the time scale of pay by two stages till 31 st May, 2024 (31.05.2024) is imposed on the MoS, Sri A.B.Venkateswara Rao with further directions that he will not earn increments of pay during such period and, on expiry of the said period, the reduction will have the effect of postponing future increments of his pay".11 OA 273/2023
(x) On receipt of the advice of the UPSC through the GoI, MHA, Government, under clause (b) of sub-rule (5) of rule 9 of All India Services (Discipline & Appeal) Rules, 1969, a copy of advice of the UPSC has been forwarded to the Member of Service (under suspension) for his written representation if any. The Member of Service (under suspension) in his representations dated 02.03.2023 and 17.03.2023 has denied all the charges framed against him and requested to drop the charges and the case closed without any punishment.
(xi) During the course of investigation in the Criminal Case, additional material relating to the involvement of the applicant at his personal level for awarding the purchase order to the Agency for which his son is the Indian representative, was found, the MHA, GoI was requested for reconsideration of the advice given by the UPSC and to consider the suggestion of the State Government, vide letter No.GAD01-PERSOIPS(DISC)/3/2020-SC.D, dt. 17.05.2023.
(xii) The investigation relating to a Criminal Charge is pending, Government considered that it is a fit case to place the applicant herein under suspension in exercise of powers conferred by sub-rule (3) of Rule 3 of the All India Services (Discipline & Appeal) Rules, 1969 and accordingly placed the applicant under suspension with immediate effect, until the termination of all proceedings relating to that charge, vide GO Ms No.55, General Administration (SC.D) Department, dated 28.06.2022.
(xiii) Under Rule 3(3) of All India Services (D&A) Rules, 1969, "A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that 12 OA 273/2023 charge, if the charge is connected with his position as a member of the Service or is likely to embarrass him in discharge of his duties or involves moral turpitude".
(xiv) The Hon‟ble High court of Bombay had the occasion to consider the purport of the said Rule in the judgment dated 06.01.2012 passed by Hon‟ble High Court of Bombay in the case of State of Maharashtra Vs A.K.Jain (WP No.7071 of 2010). The Hon‟ble High Court was pleased to hold that suspension in terms of Rule 3(3) of the Rules is distinct from Rule 3(1) and a suspension under Rule 3(3) would continue to be applicable till the conclusions of criminal proceedings, unless the State Government decides to revoke it earlier. With these submissions, Respondent No.1 prayed for dismissal of the OA.
4(i). The applicant has also filed the rejoinder stating that, as per law and rules, no new evidence can be introduced after the prosecution case was closed way back on 02.04.2021. It is submitted that if any new evidence has to be considered, it has to be first supplied to the Applicant in order for him to refute it and defend himself. It is submitted, in addition, that the new evidence can be introduced if and only if the disciplinary proceedings already conducted are cancelled as null and void and a de- novo Inquiry is launched with a fresh Articles of charge issued, incorporating the so called fresh evidence. The applicant submitted that any attempt to consider any so called „new‟ evidence to arrive at the decision on punishment to be awarded, would be contrary to law and violating natural justice and hence illegal.
(ii) That, even though Rule 3(3) is different from Rule 3(1), invoking the Rule in the same material issue will result in double jeopardy and hence, inadmissible in law. It is submitted that same is liable for judicial review especially when the said power was invoked under false reasons such as „influencing (non- existent) witnesses in a (non-existent) criminal trial‟ and the Rule is invoked in a 13 OA 273/2023 colourable exercise of power.
(iii) It is further submitted that, the Hon‟ble Supreme Court, in 1999 Law Suit (SC) 406, in the case of K.Sukhendar Reddy Vs. state of Andhra Pradesh, their lordships have observed that :
"(7) Another vital fact which has come on record is that in the criminal case a number of senior IAS officers, even senior to the appellant, may be found involved, but nothing positive or definite can be said as yet as the investigation is likely to take time. The matter is pending with the Police since 1.12.1996 when the F.I.R was lodged at Anakapalli Town Police Station. The investigation has not been completed although about two and half year has passed. We do not know. How long will it take to complete the investigation. That being so, the officer of the rank of the appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the appellant alone has been placed under suspension. The Govt., cannot be permitted to place an officer under suspension just to exhibit an feign that action against the officers, irrespective of their high status in the Service hierarchy, would be taken".
(iv) The applicant relied upon the following judgments :-
i) Order dated 21.08.2018 in CA Nos. 8427-28 of 2018 passed by the Hon‟ble Supreme Court in the case of State of Tamil Nadu & Anr. Vs. Promod Kumar, IPS & Anr.
ii) Order dated 02.02.2024 in CWP-3087/2023 (O&M) passed by the Hon‟ble High Court of Punjab & Haryana at Chandigarh in the case of Param Raj Singh Umaranangal Vs. UoI & Ors;
iii) Order dated 06.01.2012 in WP No.7071 of 2010 passed by the Hon‟ble High Court of Bombay in the case of State of Maharashtra & Another Vs. A.K.Jain & Anr;
iv) Order dated 02.12.1977 in CA No.1297 of 1977 passed by the Hon‟ble Supreme court in the case of Mohinshr Singh Gill & Anr Vs. Chief Election Commissioner, New Delhi & Ors;
5. The learned counsel for the Respondents has also filed the file notes along with their submissions on 15.04.2024 and 29.04.2024 and transcript copy of the 14 OA 273/2023 press statement (both vernacular and English) on 03.05.2024, placing reliance on the following judgments :
i) State of Maharashtra & Anr A.K.Jain & Anr., 2012 SCC Online Bom 19;
ii) A.Kishan Vs. State of Andhra Pradesh, (2016) ALD 666;
iii) Param Raj Singh Umaranangal Vs. Union of India, 2024, SCC Online P&H 1725;
iv) U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. Vs. Sanjiv Rajan, 1993 Supp (3) SCC 483;
v) Chandra Pal Singh Pundhir Vs. M.P. Board of Secondary Education, Bhopal, (2002) SCC Online MP 408;
vi) Government of NCT, Delhi vs. Beena Mehra, 2008 SCC Online Del 1304;
vii) Bharat Ram Sahu Vs. State of Chhattisgarh & Ors, 2010 SCC Online CHH 97.
6. Heard Shri Adinarayana, learned Sr. Counsel along with Shri Y.Balaji, learned counsel for the applicant, Shri V.Vinod Kumar, learned Sr. panel counsel for Union of India (Respondent No.3) and Shri S.Sri Ram, learned Advocate General along with Shri D.Pandu Ranga Reddy, learned Government Pleader for State of Andhra Pradesh and also perused the records, proceedings and citations in detail.
7. The learned Senior Advocate strongly argued on behalf of the Applicant for placing the applicant under suspension for the second time it is just colourable exercise to harass the applicant as such no material has been placed by the Respondents when reply has been filed to oppose the relief. Once the matter in respect of first suspension for the same charges has attained the finality before the Hon‟ble Supreme Court and when the applicant has been reinstated into service on non-sensitive post, the second suspension on the ground that, he is trying to 15 OA 273/2023 influence the witnesses relating to Criminal Trial, further considering the fact that serious charges of corruption are involved, and taking the shelter of the observations of the Hon‟ble Apex Court that the authorities are free to proceed against the Respondent in respect of other matters in accordance with law is not justified and this observation of the Hon‟ble Supreme Court has been misunderstood and misinterpreted by the Government of A.P. When the FIR was registered against the applicant on 18.03.2021, and after considering the said fact only, the Hon‟ble Supreme Court has ordered reinstatement of the applicant. For the same allegations, the authorities, first time, vide order dated 08.02.2020 was placed under suspension under Rule 3(1) of AIS (D&A) Rules, 1969, and the said suspension had been continued, which was challenged by the applicant in the CAT as well as in Hon‟ble High Court. The matter went up to Hon‟ble Supreme Court and attained finality, wherein the applicant (herein) was directed to be reinstated into service. Just as an eye wash, to avoid the contempt order of Courts, the applicant had been reinstated into service and posted on a non-sensitive post. Thereafter, again the applicant was placed under suspension vide GO dated 28.06.2022 under Rule-3(3) of AIS (D&A) Rules, 1969, which reads as under :
"Whereas, while disposing of the SLP No.8024/2020, the Hon'ble Supreme Court made it clear that the authorities are free to proceed further against the Respondent in respect of all other matters in accordance with law and that the all contentions available to both sides in that regard are left open. This observation equally applied to the First Information Report registered against the respondent on 18.03.2021.
Whereas, after the posting was given to Sri A.B.Venkateswara Rao, IPS (AP 1989) it was noticed that he has tried to influence witnesses relating to the criminal trial. Further, considering the fact that serious charges of corruption are involved and also the fact that the dismissal from service of Sri A.B.Venkateswara Rao, IPS, has already been recommended, his continued posting is likely to embarrass him in the discharge of his duties.
Whereas, under sub-rule (3) of Rule 3 of the All India Services (Discipline & Appeal) Rules, 1969, "a member of the Service in respect of, or against, 16 OA 273/2023 whom an investigation of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a member of the Service or is likely to embarrass him in the discharge of his duties or involves moral turpitude". The said Rules were amended in the year 2009 with provision of Rules 3(2) and 3(8) and the Rule-3(8) is very categorical stated that the suspension order has to be reviewed periodically after 180 days. Further, in the matter of the applicant, Respondents are reading the said provision of Rule-3(3) in isolation. The Senior Advocate has relied upon the Rule-3(1), (3), (7)(b), (8)(a), 3(9)(a) and 10 of the All India Service (D&A) Rules, 1969. According to the learned senior Advocate, as per Rule-3(9)(a), order of suspension and order of revocation has to be made in the stipulated form appended to these Rules and as per the Schedule-I, the Government has to constitute a Review Committee in a manner as per the composition of the Review Committee mentioned in the Schedule-I and they have to follow functions, which are as under :
SCHEDULE 1 {see rule 3(8)©}
1. Composition of Review Committees :-
(a) The Review Committee constituted by the Central
Government shall consist of
(i) Secretary to the Government of India in the concerned
Ministry/Department-Chairman.
(ii) Additional Secretary/Joint Secretary in charge of
Administration in the concerned Ministry/Department-
Member.
(iii) Any other Additional Secretary/Joint Secretary in the concerned Ministry/Department-Member.
Note: The Committee may, if considered necessary, co-opt an officer of the Department of Personnel and Training with the approval of Secretary (Personnel), Ministry of Personnel, Public Grievances and Pensions.
(b) The Review Committee constituted by the State
Government shall consist-
17 OA 273/2023
(i) Chief Secretary-Chairman.
(ii) Senior most Additional Chief Secretary/Chairman,
Board of Revenue/Financial Commissioner or an
officer of equivalent rank and status-Member.
(iii) Secretary, Department of Personnel in the State
Government-Member Secretary.
Note: (i) The Home Secretary/Director General (Police) of the concerned States may be co-opted wherever a case concerning a member of the Indian Police Service is considered.
(ii) The Secretary Forest/Principal Chief Conservator of forest of the concerned State may be co-opted wherever a case concerning a member of the Indian Forest Service is considered by the Committee.
(iii) In States where Civil Services Board have been constituted, the State Government may entrust the work of the Review Committee to the Board.
2. Functions :-
(a) The Review Committee/Civil Services Board shall review the cases of officers under suspension lin order to determine whether they are of sufficient grounds for continuation of suspensions.
(b) In every case the review shall be done within 90 days from the date of order of the suspension. In a case where the period of suspension has been extended, the next review shall be done within a period of 180 days from the date of last extension.
The Standard Form which are prescribed as per Rule-3(9) are reproduced hereunder, for reference :
FORM 1 STANDARD FORM FOR ORDER OF SUSPENSION ORDER Whereas a disciplinary Whereas a cases against Proceeding against Shri.... Shri .....(name and Desig-
(name and designation) is nation) in respect of a
criminal offence is contemplated/pending
criminal offence is
under investigation/ contemplated/pending
Inquiry/trial. Under investigation/
Inquiry/trial.
18 OA 273/2023
8. There is no ambiguity in the Rule so as to suspension or continuation of the suspension. Learned counsel for the Applicant, in support of his contentions, placed reliance on the order passed in the case of State of Tamil Nadu represented by Secretary to Government (Home) Vs. Promod Kumar, IPS & Another [2018(17) SCC 677] which reads thus :
"Service Law-Suspension-Continued prolonged suspension-Impropriety- Suspension order w.e.f.2-4-2012 passed against R-1, IG of Police, which was periodically extended after expiry of 180 days, who was alleged to have violated his official position by extorting money from Director of firm P and delayed repayment to depositors of firm- Suspension order continued for more than six years-Held, though State Government undoubtedly has power to continue R-1 under suspension must be avoided- In instant case, while granting bail to R-1, liberty granted to investigating agency to approach court in case he tampered with evidence-Admittedly no complaint was made in that regard-In such circumstances, continued suspension of R-1 no longer required since his reinstatement would not be threat to fair trial-Appellant State at liberty to appoint R-1 to non-sensitive post-All India Services (Discipline and Appeal) Rules, 1969, R.3(3)".
9. The Hon‟ble Supreme Court, while ordering re-instatement, with an observation that the charges are serious, still the suspension order has been revoked and reinstatement has been ordered for non-sensitive post. The learned counsel for the applicant further relied upon the order passed by the Hon‟ble High Court of Punjab and Haryana in Param Raj Singh Umaranangal Vs. Union of India & Others [2024 SCC online P&H 1725] has considered the rule of suspension in detail considering the affidavit filed by the Government of India, in respect of the rules of suspension when an authority has not been satisfied for Review, the Rule- 3(8) applies. Considering the simple reading of Rule-3(8), which states that an order of suspension made under Rule-3 requires to be reviewed under Rule 3(8) by the Review Committee. On perusal of stand taken by Union of India, the Hon‟ble High Court has allowed the Writ Petition and order passed by the CAT, Chandigarh 19 OA 273/2023 and order of suspension were quashed with the direction to the Respondent Government to allow the petitioner to join the service forthwith. The learned Senior Counsel, in support of his contention, further relied upon the order passed by the Hon‟ble High Court of Bombay in the matter of State of Maharashtra & Anr. A.K.Jain & Anr., [2012 SCC Online Bom 19]. Though the Hon‟ble High Court of Bombay has considered the interpretation of Rule-3(3), considering the amendment to the Rules with effect from September, 2009, matter has been remanded back to the CAT. So it cannot be considered that the observations in the said judgment has attained finality. Learned counsel for the applicant further relies upon the order passed in the case of Mohinder Singh Gill & Another Vs. Chief Election Commissioner, New Delhi & Others [1978 (1) SCC 405] on the point that when a statutory functionary makes an order based on certain grounds, "its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out." We may here draw attention to the observations of Bose, J, in Govardhandas Bhanji :
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
10. The Learned Senior Advocate further argued on the point that the Respondents are harping on the point that when Media asked some questions, the applicant had made objectionable statements before the Media against the 20 OA 273/2023 Government. When Media people has put some general questions, the applicant has replied to it. If at all it is against the service Rules, the Respondents are free to initiate the appropriate proceedings. However, the said statements are nowhere connected against disciplinary enquiry or Criminal Case. The learned Senior Advocate further submitted that keeping under suspension for a long time is beyond the scope of the Rules of suspension. Further it will tarnish the image of the applicant who has served the Department for more than 35 years (approx.) with full dedication and devotion. Therefore, the learned counsel for the applicant submits that the applicant is entitled for the relief prayed for in the OA.
11. On the other hand, the learned Advocate General argued and vehemently opposed the relief prayed for on the ground that the charges levelled against the applicant are very serious. When the applicant was suspended in the year 2020, when the matter reached to Hon‟ble Apex Court, the Hon‟ble Supreme Court has ordered reinstatement only on the reason that the suspension cannot be continued for more than two years period; the Hon‟ble Supreme Court has very categorically made it clear that the authorities are free to proceed against the applicant herein.
12. Since the applicant, upon his reinstatement, not only released the press statement against the Government and tarnishing image of the Government, with utter disrespect, also tried to malign the image of the Government and Government officials. Noticing the fact that he is trying to mess the facts in the Criminal Trials and further considering the facts that the charges involves corruption and his continued posting in the office is likely to embarrass him in the discharge of his duties, the competent authority, has exercised the power under Rule-3(3) of All India Services (Discipline & Appeal) Rules, 1969, & placed the applicant under suspension reads thus :
21 OA 273/2023
D.Service Law - All India Services (Discipline and Apeal) Rules, 1969- Rr.3(3), (7) and (8) - Suspension - Mandate of Ruyle 3(3) gives no other option to the competent Authority but to place the official concerned under suspension until termination of proceedings relating to stated criminal charge pending against him - In cases covered under Rule 3(3), review of suspension for extension of the suspension period is not envisaged at all (Paras 45 to 47) E.Service Law - All India Services (Discipline and Appeal) Rules, 1969- R.3(1) - Suspension orders issued under Rule 3(1) - Competent Authority is obliged to review and extend the order of suspension from time to time before the expiry of the period of suspension mentioned in the original or the extension order (Para 38) F.Service Law - All India Services (Discipline and Appeal) Rules, 1969
- R.3 - Suspension power of the appropriate Authority to place a member of the service under suspension in the specified situation - Each of the clauses of Rule 3 deal with different situations (Para 23)
13. Whereas the investigation relating to Criminal charge is pending, the suspension order has been issued. The said provision is itself explanatory and the interpretation of the provision cannot be linked with the other provisions. The implication of mandating a review and consequentially nullifying an order of suspension validly passed under Rule 3 (3) on the ground that the review as mandated under Rule 3(8) has not been occasioned, would result in clear derogation of the express provisions under Rule 3(3) of the All India Service (Discipline & Appeal) Rules, 1969.
14. In respect of the in the case of State of Maharashtra Vs. A.K.Jain & Anr., the observation of the Hon‟ble High Court of Bombay on Rule-3(3) cannot be ignored. The Hon‟ble High Court has expressed their views supporting the Legislature intention and this rule cannot be read with Rule-3(8); though the matter has been 22 OA 273/2023 remanded back, still the observation holds the field on the interpretation of Rule- 3(3).
15. The learned Advocate General, in support of his contention, relied upon the orders rendered in the cases of State of Maharashtra & Anr Vs. A.K.Jain & Anr and A.Kishan Vs. State of Andhra Pradesh and Param Raj Singh Umaranangal Vs. UoI & Anr, to justify the second suspension.
16. Learned Advocate General relied upon the orders of the Hon‟ble High Court of Hyderabad in A.Kishan Vs. State of Andhra Pradesh to justify the governing of Rule-3(3) and issuance of suspension order pending enquiry / investigation. Admittedly the charge sheet only filed, charges are yet to be framed. Therefore considering the conduct of the applicant, 2nd suspension order issued. This judgment is binding on the jurisdiction lines.
17. The learned Advocate General in his support, to justify the 2 nd suspension, further relied upon the judgment in the case of U.P.Rajya Krishi Utpadan Mandi Parishad & Ors Vs. Sajiv Rajan [1993 Supp (3) SCC 483] and submits that the authorities are having the full power considering the serious charges, though the charge sheet has been filed in the Court, framing of charge was bound to take some time. Therefore the Court has to take a lenient view with regard to delay in certifying the charge sheet and completing the enquiry.
18. The learned Advocate General has also relied upon the observations of the Hon‟ble Supreme Court in the case of Chandra Pal Singh Pundhir Vs. M.P.Board of Secondary Education, Bhopal & Others on the ground that there is no restriction for second suspension under the rules and order of suspension for second time cannot be treated to be a review as it is not passed by superior 23 OA 273/2023 authority to appellate authority.
19. Reliance has also been placed by the Respondents on the order passed in the case of Government of NCT, Delhi Vs. Beena Mehra [2008 SCC online Del 1304] on the point that when the charges of corruption has been levelled, continuation of the charge sheet held valid. When the power has been vested with the authorities in considering the charges which are serious, the authorities, at their discretion, can invoke such power in interest of the organisation.
20. The learned Advocate General who is relying on the press statement made by the applicant also placed the same on record on 03.05.2024, which were perused and gone through carefully.
21. To analyse and to form the conclusion, it is necessary to record the facts in respect of the allegations as well as first suspension followed with the second suspension on same charges which is impugned in the present OA, the same has been recorded as under:
The sequence of the events between 03.05.2019 and 08.02.2020 after new Government for the State of Andhra Pradesh assumed office, the applicant who was serving as Director General, ACB was transferred and was not given any posting whatsoever from May, 2019 onwards. On 02.02.2020 the Director General of Police writes to the Additional director General, CID to investigate and submit a report with regard to the said alleged irregularities in a tender relating to procurement and finalisation of certain equipment. The enquiry was completed and on receipt of the report of the said enquiry, which was forwarded on 07.02.2020 by the Director General of Police to the State Government on 08.02.2020. On the basis of the said report, the applicant was suspended. The said 24 OA 273/2023 suspension order was challenged by the applicant. However, this Tribunal, in OA No.149/2020, vide order dated 17.03.2020 declined the relief. The order of this Tribunal has been challenged by the applicant in WP No.8185/2020. The Hon‟ble High Court has considered the entire facts and records as well as the submissions of both sides along with the citations relied upon by both parties and the order of this Tribunal in depth, the first suspension was under "Rule-3(1), the Hon‟ble High Court noticed that the reasons for the conclusion are lacking in the impugned (first) suspension order. The reasons, the material and the conclusion, the thought process of the court will be in the reasons and failure to give "reasons", in the opinion of the Hon‟ble High Court vitiates the Tribunal‟s order and the reasons would have enabled the Hon‟ble High Court to appreciate the conclusions of the Tribunal.
Since the Hon‟ble High Court has considered involvement of the applicant, entire material in respect of the said tenders process.
The Hon‟ble High Court further observed as under:
"This Court also notices that the "reasons" for the conclusion (which would enable this Court to come to a conclusion whether there was justifiable material) are lacking in the impugned order. Reasons would indicate the connection between the material and the conclusion. The thought process of the Court will be in the reasons. The failure to give reasons in the opinion of this Court vitiates the order of the Tribunal. The reasons would have enabled this Court to appreciate the conclusions of the Tribunal."
xxx. xxxx xxxx Next point to be seen is about the continuation of the suspension. The petitioner was initially suspended on 08.02.2020 as required under the Rules. The same was also approved by the Government of India. Therefore, it was argued that there is application of mind by the State. This Court has noticed the case law on the subject and the same was referred to more than once in this order already. The need to keep an Officer under suspension and to continue his suspension is necessary if there is a likelihood of the Officer impeding the progress of the investigation or the enquiry. The Authority should consider all 25 OA 273/2023 the available material to come to a conclusion that it would not be desirable to keep the delinquent in Office, since he is likely to hamper or frustrate the enquiry."
Xxxx xxxxx xxxxx Rule 3 of the 1969 Rules, talks of suspension. The factors, which are necessary for placing an Officer under suspension are
(a) the circumstances of the case, (b) the nature of the charges, and (c) satisfaction, necessity and desirability. This Court is reiterating that for an Officer to be placed under suspension, by virtue of a plain language interpretation of this case, the Authority should be satisfied basing upon the circumstances of the case, the evidence collected till then and the nature of the charges that the Officer should be placed under suspension. Therefore, there should be some material for the Appointing Authority to come to a conclusion about the nature of the charges and the circumstances of the case. The further satisfaction for keeping the Officer under suspension and/or continuing him should also be based on some material.
While, at this stage, there is no necessity for clear or what is called adequate proof, still in the opinion of this Court there should be some material available. In fact, the Hon'ble Supreme Court of India has said that there should be a strong prima facie case against the delinquent. This, therefore, implies that the satisfaction reached by the Authority for suspending a delinquent or keeping him under suspension should be based on some objective material and cannot purely be subjective. The cases cited above including Bimal Kumar Mohanty and Ashok Kumar Aggarwal (1 and 2 supra) lend support to this. Even the Constitution Bench decision reported in A.K.K.Nambiar's case (14 supra) states that the order of suspension should be (a) warranted by the Rule (b) and must be an honest exercise of power. The Court can only come to a conclusion about the honest exercise of power or of the suspension being as per the Rule, when the material examined by the Authority before suspending the Officer is seen by the Court and not otherwise. As mentioned above, Rule 3 warrants examination of the circumstances of the case, nature of charges and/or the necessity or desirability of placing an Officer under suspension. In the opinion of this Court, the suspension order in this case does not meet the stipulation of the Rule itself (Rule 4(3)(a) of the Conduct Rules 1969) nor does it meet the tests that are prescribed/laid down by the Hon'ble Supreme Court in the decided cases, particularly Bimal Kumar Mohanty, Ashok Kumar Aggarwal and A.K.K.Nambiar (1, 2 and 14 supra).
Hence, this Court is of the opinion that the Appointing Authority-first respondent did not have adequate material by the date of the order of suspension to come to a conclusion that the petitioner himself was responsible for floating the tender, for 26 OA 273/2023 choosing the supplier, for making the changes in the tender and/or that the son was instrumental in awarding the work or that he played a big role in the changes. This Court is only commenting about the material placed before the Appointing Authority-first respondent for the suspension only for the purpose of disposal of this Writ Petition. The Appointing Authority did not also call for or examine records to record the satisfaction of a prima facie case etc.,. The preliminary enquiry report was the only document considered.
(b) This Court has already spelt out its conclusions with regard to the findings of the Central Administrative Tribunal in the order impugned. The justification for placing the Officer under Suspension and/or continuing him in suspension are not really discussed by the Tribunal.
The link however slender and/or tenuous between the material and the conclusions should be established. Otherwise, the dicta of the Hon'ble Supreme Court that the Appointing Authority should find a strong prima facie case would become meaningless. A strong prima facie case would imply that there is some material available linking the delinquent solely to the charges, particularly for the ground surged. The sole document available (dated 06.02.2020) before the Appointing Authority, who passed the impugned order, did not establish the same. The Central Administrative Tribunal, in the opinion of this Court, did not consider the issue of prima facie case as mandated in Ashok Kumar Aggarwal's case (2supra). The Tribunal did not also consider the law as laid down in Bimal Kumar Mohanty's case (1 supra) and look into the nature of the evidence that is placed before the Appointing Authority. The Tribunal also did not decide whether the material was enough for an objective satisfaction, meaning an application of mind by the Authority. These aspects should have been considered by the Tribunal in the O.A. The same were not done.
(c) The order of suspension is also not warranted by the Rule, which as mentioned earlier talks of the circumstances ofthe case, nature of the charges etc., and the satisfaction to be reached. The conclusions of the first respondent-Appointing Authority also are not based on adequate materials. Non-application of mind is visible from the failure to consider the materials in line with the settled law.
Therefore, this Court holds that the petitioner is entitled to the prayers made.
The learned Advocate General raised an issue about the prayers of a writ of Certiorari and a Mandamus being made together. The case law cited by the learned counsel for the petitioner in WA.No.3161 of 2019 of the Madras High Court (M.Rajendran v. Govt of India), Ashok Kumar Aggarwal(2 supra) and Surya Dev Rai (7 supra) are applicable to the facts and 27 OA 273/2023 circumstances of the case. The distinction between the writ of Certiorari and the supervisory jurisdiction is also slowly being obliterated. However, under Article 226 of the Constitution of India, a person is entitled to seek a number of reliefs. Article 226 of the Constitution of India itself uses the words "for any other purpose" after describing the types of writs for enforcement of fundamental rights, which clearly shows that more than one writ can be prayed for. A combination of prayers is also necessary in the present situation. The facts and circumstances of this case would mean that if the order in the O.A. is set aside, the petitioner would be driven to a further round of litigation if Certiorari alone is granted. Any order passed by this Court should not be an empty formality. Courts exist to do justice between the parties and not to drive the parties to multiple rounds of litigation. In order to do complete justice between the parties, this Court is of the opinion that in the facts and circumstances of the case, after setting aside the order in the O.A., the petitioner should not be driven to another round of litigation and therefore, an order directing him to be reinstated into service while continuing with the enquiry is appropriate in the facts and circumstances of the case.
However, it is made very clear that all the opinions that are expressed in the order are for the purpose of disposal of the writ petition only. The material before the Authority for passing the order of suspension is essentially considered for reaching the conclusions. This will not preclude or otherwise come in the way of the respondents carrying out their own further investigation as advised into the matter for the purpose of the enquiry. This order will not come in the way of the Enquiry Officer coming to his/her own independent conclusion in the matter based on the material and the law, without being influenced by this order or the opinions expressed.
A note of caution and a direction is also given to the petitioner also not to in anyway interfere or hamper the process of enquiry, investigation etc.,. He should maintain a very strict distance from the investigation/enquiry and should not in anyway attempt to keep in touch with any of the witnesses proposed to be introduced or come in the way of the investigating/enquiry Officers. It is made clear that if there is any infraction, the State is entitled to take appropriate action.
In view of the fact that the Service Rules provide for timely completion of the enquiry, the respondents are directed to strictly adhere to the time schedules fixed by the relevant Rules and complete the enquiry in all respects in a time bound manner.
While allowing the Writ Petition, the following order is passed:
1. The order dated 17.03.2020 in OA.No.020/0149/2020 is 28 OA 273/2023 quashed.
2. The order dated 08.02.2020 in GO.Ms.No.18 GAD issued by the first respondent keeping the petitioner under suspension is held to be illegal, arbitrary and is set aside.
Consequently, the first respondent is directed to reinstate the petitioner into service with all attendant/consequential benefits, monetary and otherwise."
22. It is also to be noted that in Cr. Petition No. 71 of 2021, when the applicant approached the Hon‟ble High Court under Section 482 Cr. PC, for anticipatory bail, considered the issue in depth and held as under:
"22. The Court while granting pre-arrest bail has to take into consideration several factors, nature of allegations, chances of accused absconding, hampering the investigation process, antecedents of the accused, likelihood of repeating the offence, tampering the evidence and influencing the witnesses. This Court prima facie, looking at the facts and circumstances of this case, particularly the Whatsapp messages of Public Relations Officer of the Chief Minister, statement given by Whip of the Government, delay and laches in initiating the departmental proceedings, is of the view that the petitioner could make out reasonable grounds for his arrest. Further, taking into consideration the antecedents of the petitioner and Articles of Charge, this Court deems it appropriate to direct the respondents not to take any coercive steps against the petitioner in case arising out of procurement of surveillance/security equipment by the Andhra Pradesh Police for a period of two weeks."
23. It is to be noted that in respect of the order passed by the Bombay High Court in the matter of State of Maharashtra Vs. A.K.Jain and another in WP No.7071 of 2010, order dated 06.01.2012, though the Hon‟ble High Court of Bombay has expressed their opinion on analysing the provision of Rule-3 and the sub rules there in. Looking into the amendment issued by Govt., of India vide notification dated 30.09.2009, the relevant para reads thus :
"21. In 2009, Rule 3 has been amended by the Rules called "the All India Services (Discipline & Appeal) Amendment Rules, 2009". The same came into force with effect from 30th September, 2009. The amendment reads thus :29 OA 273/2023
"MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES &
PENSIONS
(Department of Personnel and Training)
NOTIFICATION
New Delhi, the 30th September, 2009
G.S.R. 714€ - In exercise of the powers conferred by sub-section (1) of section 3 of the All India Services Act, 1951 (61 of 1951), the Central Government, after consultation with the State Governments concerned, hereby makes the following rules further to amend the All India Services (Discipline and Appeal) Rules, 1969, namely :-
(1) These rules may be called the All India Services (Discipline and Appeal) Amendment Rules, 2009.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the All India Services (Discipline and Appeal) Rules, 1969, (hereinafter referred to as the said rules), in rule 3,
(a) in sub-rule (1), in clause (b), after the first proviso, for the second and the third proviso, the following provisos shall be substituted, namely :- "Provided further that the Chief Secretary, Director General of Police and the Principal Chief Conservator of Forests, who are the heads of the respective Services, shall not be placed under suspension without obtaining prior approval of the Central Government :
Provided also that, where a State Government passes an order placing under suspension a member of the Service against whom disciplinary proceedings are contemplated, such an order shall not be valid unless, before the expiry of a period of forty-five days from the date from which the member is placed under suspension, or such further period not exceeding forty-five days as may be specified by the Central Government for reasons to be recorded in writing, either disciplinary proceedings are initiated against him or the order of suspension is confirmed by the central Government.";
(b)after sub-rule (1A), the following sub-rules shall be inserted, namely :-
"(1B) The period of suspension of a member of the Service on charges other than corruption shall not exceed one year and the inquiry shall be completed and appropriate order shall be issued within one year from the date of suspension failing which the suspension order shall automatically stand revoked :
Matter has been remanded back to the CAT, Mumbai Bench since the Tribunal answered the controversy on the basis of the un-amended Rule-3, to decide the matter on its own merit, for considering the question regarding efficacy of amended Rule-3.30 OA 273/2023
24. It is to be noted that the order passed by the Hon‟ble High Court of Punjab & Haryana at Chandigarh prevails over the order of the Hon‟ble High Court of Bombay in respect of the ratio while considering the matter of the second suspension, on the same allegations under Rule-3(3) of AIS (D&A) Rules. On the ground that one cannot be kept under suspension under the garb of pending enquiry/ investigation in Criminal Proceedings, the relevant powers of the Union are re-
produced as under :
"69. In compliance of order dated 26.07.2023, a short reply was filed by Union of India, through Sh. Sanjeev Kumar, Under Secretary to Government of India, Ministry of Home Affairs, New Delhi. The relevant paras of the stand taken by Union of India re reproduced as under :-
"9. That it is submitted that suspension as well as revocation thereof of the members of service is governed by the All India Service (Discipline & Appeal) Rules, 1969.
10. That Rule 3 of the AIS (D&A) Rules, 1969 deals with the suspension of AIS Officers. A bare reading sub rules (1) to (6) of Rule-
3 shows that each of the sub rule deals with different situations of suspension :
Rule 3(1) of 1969 Rules provide for suspension on account of disciplinary proceedings while Rule 3(2) thereof provides that if any member of service is detained in official custody whether on a criminal charge or otherwise for a period of 48 hours, he/she shall be deemed to have been suspended by the Government concerned.
Rule 3(3) of 1969 rules provides that a member of service against whom an investigation, inquiry or trial relating to criminal charge is pending may, at the discretion of Government be placed under suspension until the termination of all proceedings relating to that charge.
11. The Rule 3(8)(a) of AIS (D&A) Rules, 1969 provides that an order of suspension made under this rule which has not been extended shall be valid for a period not exceeding sixty days and an order of suspension which has been extended shall remain valid for a further period not exceeding 120 days, at a time, unless revoked earlier. The Rule 3(8)(b) provide that an order of suspension made or deemed to have been made or continued shall be reviewed by the competent authority on the recommendations of the concerned Review Committee.
Further, Rule 3(8)© provides for functions of Review Committees and procedures to be followed while Rule 3(8)(d) provides that period of suspension under this rule may, on the recommendations 31 OA 273/2023 of the concerned Review Committee, be extended for a further period not exceeding 180 days at a time provided that where no order has been passed under this clause, the order of suspension shall stand revoked with effect from the date of expiry of order being reviewed.
12. That as regards petitioner‟s plea of review of suspension as per Rule 3(8) of 1969 Rules, it is submitted and reiterated that the petitioner has been suspended by respondent-State Government under Rule 3(3) of 1969 Rules.
A simple reading of Rule 3(8) stated that an order of suspension made under Rule (3) requires to be reviewed by the concerned Review Committee. It doesn‟t differentiate the reason for suspension prescribed under Rule 3(1) to Rule 3(6)."
70. A bare perusal of the stand taken by the Union of India shows that respondent No.1 has supported the case of the petitioner by giving interpretation with regard to the period of suspension mentioned in Rule 3(8) of the All India Services (Discipline and Appeal) Rules, 1969. Further by clarifying that Rule 3(8) of the Rules, 1969 doesn‟t differentiate the reason for suspension prescribed under Rule 3(1) to Rule 3(6)."
25. It is also to be noted that, to justify the action of the Respondents, for second time suspension order dated 28.06.2022, the learned Advocate General has relied upon the observations made in various citations referred above. It is to be noted that, in the matter of disciplinary enquiry on the said allegations, the Respondents have not accepted the advice of the UPSC though they have called the written submissions of the applicant on the said advice of the UPSC. Thereafter, the applicant had submitted his written submission, the Respondents have not taken any final decision on it and it was kept pending.
26. It is to be noted that the Respondents have issued second suspension order dated 28.06.2022 through GO Ms No.55 suspending the applicant under sub-rule 3 of Rule-3 of AIS (D&A) Rules on the ground that investigation is pending under Criminal Charge. Hence the Respondents have exercised the powers under the under the said rule and suspended him. It is also to be noted that the reasons which 32 OA 273/2023 are recorded while issuing the second suspension that, the applicant tried to influence the witnesses regarding to the Criminal Trial. Further considering the fact of serious charges of corruption involved and also the fact that his continuation likely to embarrass him in the discharge of his duties. During the course of hearing, when we called the details in respect of allegations / reasons that applicant had tried to influence the witnesses relating to the Trial, the learned Advocate General fairly submitted that he has not tried. Mere linking with the applicant‟s press release, that too for the said press release, independent show cause notices have been already issued and the authorities having ample power to proceed further with the disciplinary action. However, the Respondents have made an attempt to exercise the power under sub rule-3 of Rule-3 of AIS (D&A) Rules and placed the applicant under suspension for 2nd time from 28.06.2022. It is to be noted that even after filing the charge-sheet in Criminal Case has before the Trial Court in the month of January, 2023, the respondents have neither reviewed or revoked the said suspension.
27. It is also to be noted that, if at all applicant is tried to influence the witnesses in any way indulging or interfered with the investigation and on these grounds, the Respondents can offer the cancellation of pre-arrest bail granted to the applicant since the applicant himself has breach the condition of pre-arrest bail. However, the Respondents have not exhausted the remedy available to them under law and no material has been placed on record to support the reason for the second suspension, except the media statement of the applicant which have no bearing over the disciplinary enquiry and criminal trial. It is also to be noted that for second suspension under the Rule 3(3) of the All India Service (D&A) Rules, 1969 33 OA 273/2023 cannot be read in isolation. The Rule-3 and the sub-rules there under are very clear, which reads thus :-
"3. A member of the service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a (member of the Service) or is likely to embarrass him in the discharge of his duties or involves moral turpitude."
28. It is also to be noted that each matter will have to be considered in its own facts and merits. It is also to be noted that, as observed by the Hon‟ble Supreme Court in the matter of State of Tamil Nadu Vs. Promod Kumar, IPS & Anr, at para-24, reads thus:
"24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr P. Chidambaram, learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However, the point is whether the continued suspension of the first respondent for a prolonged period is justified."
29. It is also to be noted that the observations of the Hon‟ble High Court of Bombay in the matter of State of Maharashtra & Another Vs. A.K.Jain & Another, considered the amendment to Rule-3, dated 30.09.2009, when matter has been remanded back, we cannot ignore the Legislatures intention in respect of Rule-3(8) as well as the Schedule-I, Composition of Review Committee and their function as well as in respect of forms supplied. It is to be noted that, as observed by the Hon‟ble Supreme Court, in respect of the first suspension, which has been travelled beyond the period of two years prescribed under the Rule & review also 34 OA 273/2023 taken place after the prescribed period of two years. Hence, the Hon‟ble Supreme Court confirmed the order of the Hon‟ble High Court of Andhra Pradesh and directed to re-instate the applicant from 08.02.2022.
30. It is also to be noted that not only the first suspension order, even the second suspension order is also without any reason & for the second suspension, except mere wording that the applicant is influencing the witnesses, nothing has been placed on record to place the applicant under suspension under Rule-3(3) of AIS(D&A) Rules. As already observed above, with regard to release of press statement by the applicant for which the Respondents have already issued a show cause, they are free to initiate the Disciplinary enquiries, but the same cannot be linked with the present disciplinary enquiry. It is clearly established that the action of the Respondents is nothing but misuse of power.
31. It is also to be noted that, in the matter of Tender process, detailed disciplinary enquiry has been conducted, the file has been forwarded with the proposed punishment to the UPSC and after analysing the entire record, the UPSC has not accepted the proposed punishment. However, the UPSC has suggested the reduction in rank (cited supra). It is also to be noted that even after filing the charge sheet in the Criminal Case, the Respondents have not considered the case of the applicant for revocation of suspension and no review was undertaken as held by the Hon‟ble High Court of Punjab & Haryana at Chandigarh in CWP-3087- 2023 (O&M), decided on 02.02.2024 as one cannot be kept under suspension for indefinite period under the garb of investigation in the Criminal Proceedings and the law laid down in the said order squarely applies to present case and also the said judgment holds the line. Therefore the stand taken by the Respondents interpreting the Rule-3(3) is incorrect, hence rejected. 35 OA 273/2023
32. From the bare perusal of the record, it is clear that the action of the Respondents in placing the applicant under suspension for second time under Rule- 3(3) after the order of Hon‟ble Supreme court referring to the pending FIR registered on 18.3.2021 on the ground that the applicant tried to influence the witnesses is without cogent reasons and the same is nothing but colourable exercise of power with malafide intention i.e without application of mind which has to be declared as illegal and arbitrary. We are also of the view of that the action of the respondents in placing the applicant under suspension for the second time is clear contempt of the order of the Hon‟ble Supreme Court.
33. In view of the above discussion, under the facts and circumstances, the entire action of the respondents is not justified and not sustainable under Rule - 3 (3) of All India Service (D&A) Rules. Therefore the impugned Order dated 28.06.2022 passed by the Respondent No.1 is hereby quashed and set aside. The Respondent No.1 is directed to re-instate the applicant into service forthwith and the applicant shall be put back to the duty and shall be paid all pay & allowances with all other consequential benefits for which he is eligible and entitled.
34. Accordingly, the OA is allowed in the above terms. There shall be no order as to costs.
(SHALINI MISRA) (DR.LATA BASWARAJ PATNE)
MEMBER (A) MEMBER (J)
/vl/