Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Maddela Venkatesu on 30 December, 2021
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
WRIT APPEAL NOs.682, 683 AND 687 OF 2021
(Proceedings through Physical mode)
W.A.No.682 of 2021
The State of Andhra Pradesh
Rep. by Principal Secretary,
Industries and Commerce
Mines Department, Block No.3
Secretariat Buildings,
Amaravathi And another ..... Appellants
Versus
Maddela Venkatesu,
s/o late Venkataiah,
occ: Assistant Mines Officer
D.No.39633/25, Y.S Nagar-II
Patel Road, Aravind Nagar
YSR Kadapa Road .... Respondent
Counsel for the Appellants : Learned Advocate General
Counsel for Respondent : Mr. N. Vijay
W.A.No.683 of 2021
The State of Andhra Pradesh
Rep. by Principal Secretary,
Industries and Commerce
Mines Department, Block No.3
Secretariat Buildings,
Amaravathi And another ..... Appellants
Versus
Kusuma Sridhar,
s/o Vasantha Rao
occ: Surveyor
D.No.376/A, Isukapudi
Ambajipeta Mandal,
CJ & MSM,J
WA Nos.682, 683 & 687 of 2021
2
East Godavari .... Respondent
Counsel for the Appellants : Learned Advocate General
Counsel for Respondent : Mr. N. Vijay
W.A.No.687 of 2021
The State of Andhra Pradesh
Rep. by Principal Secretary,
Industries and Commerce
Mines Department, Block No.3
Secretariat Buildings,
Amaravathi And another ..... Appellants
Versus
Prathipati Ananda Rao,
s/o George
occ: Assistant Mines officer
Flat No.103, S.S. Residency
Krishna Nagar, Kanuru
Vijayawada .... Respondent
Counsel for the Appellants : Learned Advocate General
Counsel for Respondent : Mr. N. Vijay
COMMON JUDGMENT
Dt.30.12.2021 (Per M. Satyanarayana Murthy, J) The State of Andhra Pradesh filed these writ appeals under Clause 15 of Letter Patent, aggrieved by the common order passed by the learned single Judge of this High Court in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021, whereunder, the learned single Judge allowed the writ petitions, set-aside the proceedings No.3430252/D1- 2/2020-1 dated 12.08.2020, issued the following directions:
(a) The suspension order passed against the petitioners dated 12.08.2020 is hereby revoked. The petitioners are directed to be posted in an appropriate place. The postings should not be CJ & MSM,J WA Nos.682, 683 & 687 of 2021 3 punitive in nature and should be in such a place that they would not interfere with the smooth progress of the enquiry.
(b) The enquiry is directed to be commenced within the shortest possible period of time and not later than two months from the date of a copy of this order.
(c) The petitioners are also strongly cautioned to cooperate for the smooth progress of the enquiry and not to indulge in any activities; tamper with the evidence or attempt to influence the witnesses etc. If any such action or infraction takes place, the respondents are at liberty to take appropriate action.
(d) It is hoped that these orders would be followed in letter and spirit and that the enquiry if any against the petitioners would be completed within the shortest possible period of time keeping in view the settled law on the subject The parties to the writ appeal will hereinafter be referred as arrayed before the learned single Judge in W.P.No.14687, 14689 and 14691 of 2021, for the sake of convenience.
W.P.No.14687, 14689 and 14691 of 2021 were filed under Article 226 of the Constitution of India to declare proceedings No.3430252/D1-2/2020-1 dated 12.08.2020 as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India. The contentions of the writ petitioners in all the three writ petitions and respondent - State Government/appellant herein are one and the same, therefore, we find that it is expedient to decide all the three writ appeals by common judgment.
It is contended that, Proceedings No.3430252/D1-2/2020-1 dated 12.08.2020 impugned in the writ petitions, placing the writ petitioners under suspension by the second respondent without calling for explanation is illegal, arbitrary and unjust.
CJ & MSM,J WA Nos.682, 683 & 687 of 2021 4 The petitioners belong to different caste, possessed different qualifications and joined in service on different dates in different capacities, now working as Assistant Mines Officer, Surveyor and Assistant Mines Officer respectively in different offices.
M/s. M.S.P. Granites obtained mining lease for extraction of colour granites in an extent of Hc.4.517 acres in Sy.No.71, Lingalavalasa Village, Tekkali Mandal, Srikakulam District. A survey was conducted by a team consisting of two surveyors on 24.02.2020 and 25.02.2020 which gave the quantity/volume of excavation by giving pit measurements mentioning its length, width and depth unscientifically and untechnically as 132 X 124 M X 20 M and calculated extracted quantity as 3,27,360 cum and given the excavation of quantity separately relying upon the appropriate/ unreliable/ unscientific/ non-standardized/ irregular patronized figurative data without any supportive document in terms of precisely plotted plan and field exercise. Instead, they have given drawings in rough manner but not to scale for 15 pits without proper and precise position.
Another separate quantity/volume of excavation is given as 91,259 cum in straight without involving any conclusive calculation for the period from 2013 to 25.02.2020. It is only possible to give segregated quantity when either specific markings are conspicuously available physically on ground or contour plan with closed spot levels on marked pit bottom surface is available with the department. The inspection and survey team who have done survey on 24.02.2020 and 25.02.2020 have blatantly violated the standard procedure and given corrective quantity CJ & MSM,J WA Nos.682, 683 & 687 of 2021 5 and this calculation is highly impossible in the absence of any scientific ground markings or contour plan with spot levels.
During the Maha Check on 07.02.2018, the team of officials belonging to Revenue, Mines and Vigilance and Enforcement have thoroughly inspected, surveyed and reported the total quantity of excavation of rock mass since inception of quarry is 1,21,500 cum covering five separate pits. After some time, on 19.12.2019 to 21.12.2019, the officials of Mines, Revenue and Vigilance & Enforcement have also inspected and surveyed reporting the total quantity of rock mass is 1,37,917 cum.
As per the instructions in Memo No.3430252/D1-2/2020 dated 23.07.2020 of the second respondent, the petitioners‟ team have taken up survey with advanced DGPS instrument with accuracy level of 6 to 8 MM from 27.07.2020 to 29.07.2020 and reported the total quantity of excavation of rock mass is 1,45,779 cum on precise computation with e-CADD survey software after taking closed intervals of spot levels in field and drawing for 15 pits is prepared in standard specified scale 1:1000 and during working never appears in form of 15 pits, but the entire quarrying lies in two benches only. However, the petitioners‟ team resorted to closed spot levels making equal cross sections which is more standard and precise method in the arena of survey. The reported quantities on three occasions are in concurrence except the gross quantity of 4,18,619 cum which is said to be inspected and surveyed on 24.02.2020 and 25.02.2020 by the team who got calculated and reported thereon. Thus, there is a huge differential quantity arrived, in view of simply relying upon unscientific and non-standardized data given by the CJ & MSM,J WA Nos.682, 683 & 687 of 2021 6 then surveyor Sri D.M.K. Ambedkar and without undertaking their own field exercise on 24.02.2020 and 25.02.2020, ignoring the standard norms for estimation in the form of either specific distinctive ground markings or pit bottom levels and also blatant violation of specific method of estimation, the reported quantity of 4,18,619 cum is fabricated, unreliable, baseless, far away from the reach of ground reality.
It is further submitted that, the said lease holder approached the Court to set-aside the erroneous and faulty survey report submitted by survey team. The Court granted interim direction to the second respondent and Assistant Director of Mines & Geology, Tekkali in W.P.No.11549 of 2020 dated 15.07.2020 and the order is as follows:
"The petitioner has been quarrying granite in Sy.No.71 of Lingavalasa Village, Tekkali Mandal, Srikakulam District in an extent of Hc.4.517 acres since the year 1998. It appears that the quarry of the petitioner has been inspected from time to time and no complaints of any nature were raised in the earlier inspections. However, in the inspection of February, 2020 the inspection team reported that a huge number of pits were found to have been excavated in the land of the petitioner and a calculation of the material which could have been excavated from the pits would show that the petitioner has not reported the actual amounts of granite which has been mined in the leased area. Consequently, proceedings have been initiated for recovery of seignorage and penalty on the unreported quantity of the material which has been mined by the petitioner.
The complaint of the petitioner is that some pits that have been to be taken into account by the inspection team in the month of February, 2020 related to land which is outside the limit of the quarry lease of the petitioner and as far as the pits in the quarry area of the petitioner are concerned, the measurements of the depth of the pits and the dimensions of the pits were not done properly. In fact, when the Geologists who were deputed subsequently by the Director of Mining for verification of the quantity excavated by the petitioner sought to conduct a survey, the surveyors in the area refused to cooperate in demarcating the quarry area of the petitioner. The said fact is also reflected in the report of geologists sent for the survey.
The petitioner now complains that his application for resurvey is being rejected primarily on the ground that the Vigilance Department has already taken a view that the petitioner CJ & MSM,J WA Nos.682, 683 & 687 of 2021 7 has excavated a huge amount of granite without reporting the said excavation to the Department.
The learned Government Pleader submits that the action initiated by the respondents is appropriate and in view of the fact that the Vigilance report clearly shows under reporting by the petitioner, it would be appropriate to permit the respondents to continue with the proceedings initiated against the petitioner.
The central question which is in dispute is whether the various pits taken into account in the survey in the month of February, 2020 are within the quarry area of the petitioner or not and whether the dimensions of the pits falling in the lease area of the petitioner have been properly measured. This question can be answered only upon a proper survey being, done in the presence of both the Department Officials and the petitioner or his representatives and after such demarcation the actual quantity is recalculated.
To enable a proper adjudication in the matter it would be appropriate to direct the respondent Nos.2 and 3 to take up a survey with the assistance of the necessary surveyor to demarcate the boundaries of the lease area of the petitioner and to measure the dimensions of the pits falling in the lease area of the petitioner and on the basis of such demarcation to recalculate the extent of the granite which is said to have been mined/quarried in the lease area of the petitioner. Needless to say, the said exercise of demarcation and measurement shall be done after due notice to the petitioner and in the presence of petitioner or his representatives. This exercise of resurvey shall be carried out by the respondents within a period of two weeks from the date of receipt of this order, In the meantime, the notice of the 3rd respondent bearing No. 1805/Q/2007, dated 25-06-2020 and 09.03.2020 shall remain stayed, until the exercise of resurvey and recalculation of the extent of the granite is carried out. The expenses of the survey shall be borne by the petitioner.
The petitioners contended that, the second respondent vide Memo No.3430252/D1-2/2020 dated 23.07.2020 nominated a team to conduct resurvey consisting of the petitioners. The survey and inspection is sought to be completed during the period from 27.07.2020 to 29.07.2020 and to submit report on or before 31.07.2020. Accordingly, the petitioners submitted quarry lease report on 06.08.2020 to the second respondent and explained the detailed procedure of survey and inspection. But, the second respondent having found variation in the mining area, calculation of rock mass extracted and issued proceedings No.3430252/D1-2/2020-1 dated 12.08.2020 placing the petitioners under suspension, during pendency of contemplated enquiry. The order CJ & MSM,J WA Nos.682, 683 & 687 of 2021 8 of the second respondent is not legal and not based on prima facie material. Therefore, continuation of these petitioners under suspension for a longer period is illegal, arbitrary and requested to pass appropriate direction.
The respondents did not file counter affidavit, but argued the matter based on the material placed on record.
The learned single Judge accepted the contention based on the principle laid down by the Apex Court in Ajay Kumar Choudhary v.
Union of India through its Secretary1 and issued a direction as stated above.
Aggrieved by the common order in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021, the present writ appeals are filed raising several contentions, more particularly, on the ground that variation in the survey report is only to save the lease holder and to cause loss to the Government, thereby, conduct of these petitioners prima facie falls within the definition of misconduct and proposed to conduct departmental enquiry by following necessary procedure and placed these petitioners under suspension, in view of the discrepancy in the report submitted by them and admitted by the lease holder and earlier team of surveyors.
This Court would not normally interfere with the matters of suspension, but when there is material that the petitioners are prima facie guilty of serious misconduct, the Court cannot set-aside the suspension order and the learned single Judge committed an error in allowing the writ petitions interfering with the order of suspension on the 1 (2015) (7) SCC 291 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 9 ground that, indefinite period of suspension is impermissible, based on the judgment of the Apex Court in Ajay Kumar Choudhary case (referred supra), without following the principles laid down in other judgments and requested to set-aside the same.
During hearing, learned Additional Advocate General contended that, on account of variation of quantum of granite or rock mass excavated by the lease holder, the Government is put to serious financial loss in crores of rupees and these petitioners are responsible for such loss and their conduct is prejudicial to the interest of the State and thereby, the petitioners are placed under suspension vide proceedings No.3430252/D1-2/2020-1 dated 12.08.2020. But the learned single Judge did not consider the gravity of the misconduct and the nature of allegations, but passed simply an order revoking suspension as stated above, while observing that, though long period has elapsed, the charge memo was not served on the employees which is ex facie an illegality and requested to set-aside the same.
Learned counsel for the respondents/writ petitioners - Sri N. Vijay would support the common order of the learned single Judge, while admitting that a charge memo was served, but enquiry was stayed by this Court in another writ petition and continuation of these petitioners under suspension for indefinite period is illegal and arbitrary, as it would stigmatize the employee and requested to dismiss the writ appeals, confirming the order passed by the learned single Judge in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021.
CJ & MSM,J WA Nos.682, 683 & 687 of 2021 10 Considering rival contentions, perusing the material available on record, the sole point that needs to be answered by this Court is as follows:
"Whether the order of suspension impugned in the writ petitions is based on any prima facie material, taking into consideration of gravity of the misconduct and loss to the State Government is legal. If not, whether the Court can interfere with such suspension order on the ground that the suspension for indefinite period is illegal?. If not, whether the order passed by the learned single Judge be sustained?
P O I N T:
In view of the plea of the petitioners and contention of both the learned counsel, att this stage, it is relevant to extract the order impugned in the writ petition, and it is as follows:
"ORDER:
Through the reference 15! cited, M/s MS- Granites while enclosing the Hon'ble winn Court of A.P., orders dt. 15.07.2020 in W.P.No.11549/2020 and they requested to conduct re-survey in presence of the Surveyor, who conducted survey and inspection on 19.12.2019 to 21.12.2019 & 25.02.2020.
The Hon'ble High Court of A.P., in WP No.11549/2020 has issued directions. the Principal Secretary Mines) and Director of Mines & Geology, A.P., to take up a survey with the assistance of the necessary surveyors to demarcate the boundaries of the leased area of the petitioner and on the basis of such demarcations to socalculate the extent of the granite which is said to have been quarried in the leased area of the petitioner.
Through the reference 2nd cited, this office has constituted a committee consists of Sri P.Ananda Rao, Asst. Mines Officer, Sri M.Venkatesh, Asst. Mines Officer and Sri K.Seedhar, Surveyor to conduct resurvey in presence of the petitioner, verify the pits accorded during the survey conducted in month of February, 2020 are within the lease area or not, verify the pic measurements accuracy and after demarcation of boundaries, recalculate the extent of the Granite mine / quarried in the leased area etc. Accordingly, Sri P.Ananda Rao, AMD and two others team has conducted survey of M/s MSP Granite quarry lease in sy.No.71 of Lingalavalasa-or. Tekkali Mandal, Srikakulam District on 27.07.2020 to 29.07.2020. The team reported that 1,45,779.937 Com of Rock mass was excavated by adopting the equal interval crops sections model. After analysing the committee report with information available in the file, since the year 2013 the quarry lease held by M/S ISP Granites in CJ & MSM,J WA Nos.682, 683 & 687 of 2021 11 Sy.No.71 of Lingalavalasa Village has been surveyed, and inspected on 03 occasions. It appears the survey conducted on 26.11.2013, and subsequent surveys on 24th & 25th of February, 2020 has some concurrence. Because the lease holder excavated a 0 quantity of about 3,21.360cbm of rock mass during the initial grant period of 15 years and during 2013 to 2020 February they excavated 91259 Cbm of rock mass. But, in contrary of above two surveys, the latest survey has revealed that 1,45,779.937 Cbm of rock mass was excavated during 22 years lease period and produced 29,155 Cbm saleable granite. :
Hence, It is seen from, the records, when survey was conducted on 26.11.2013, at that time the excavated quantity is abou: 3,27,360 Com..
The same had been confirmed by the lessée also. Subsequently, the Vigilance & Enforcement Officials had beer conducted survey, the total excavated quantity was 4,18,619 Com. There is logic in this case the excavated quantity from 26.11.2013 to February, 2020 is about 91,259 Cbm.
In the recent re-survey was conducted and the team arrived excavation quantity of 1,45,779.937 Cbm, since the inception. Where as, the previous survey and V&E Dept., survey;. they arrived the excavated quantity of 4,18,619 Com. Thereforë, it is construed that the Survey of Sri P.Ananda Rao, AMO and two others eems to be colluded with the lease holder and submitted their report with ulterior ves and also male- fide intension to get favour.from the lessee: Thereby, the ancted the case of penalization under Rule. 26 of APMMC Rules, 1966 920.08 Com of illegally excavated and transported Granlte raw blocks from Granites quarry in Sy.No.71 of Lingalavalasa Village, Tekkall Mandal lessee is. liable to pay penalty of Rs.215.06 Crores.
In the circumstances stated above, Sri P.Ananda Rao, Assistant Mines Officer, O/o Director of Mines & Geology, Ibrahimpatnam is hereby suspended with effect from the date of communication of the order in terms of Sub-Rule (1) of Rule 8 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, and he shall continue to be under suspension till further orders.
Further, Sri P.Ananda Rao, Assistant Mines Officer, Assistant Mines Officer shall be paid subsistence allowance equivalent to the leave salary on half pay leave and further informed that the D.A and other compensatory allowances shall be paid along with subsistence allowances as per Rules. It is further ordered that, during the period of suspension, Sri P. Ananda Rao, Asst. Mines Officer shall not leave the Head Quarters without obtaining the prior permission of the Director of Mines and Geology."
Admittedly, the petitioners are employed in different capacities, as narrated in the affidavits filed along with the writ petition, working as such as on date. There is a prima facie variation in the report submitted by these petitioners with that of earlier team and the information furnished by the lease holder at the time of renewal. If, the information furnished by the lease holder at the time of renewal is accepted, the CJ & MSM,J WA Nos.682, 683 & 687 of 2021 12 report of these petitioners is erroneous prima facie. The alleged submission of report by the petitioners, lot of variation between the reports would prima facie, amount to failure to exhibit devotion to duty.
According to Sub-Rule (4) of Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964 (for short „the Rules‟); No Government employee shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgement except when he is acting under the direction of his official superior, and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, shall obtain written confirmation of the direction as soon thereafter as possible. It shall be incumbent on such official superior to confirm in writing the oral directions given by him, and in any event, he shall not refuse such written confirmation where a request is made by the Government employee to whom such direction was given.
Sub-Rule (5) of Rule 3 says that, Every Government servant holding a superior post shall take all possible steps to ensure the integrity and devotion to duty of all government servants for the time being under his control and authority.
A Government employee is expected to display devotion to duty, devotion to duty implies due care on the part of the employee in the performance of the work assigned to him.
CJ & MSM,J WA Nos.682, 683 & 687 of 2021 13 In Union of India v. J. Ahmed2, the Supreme Court had an occasion to consider the scope of the expression "devotion to duty" and has observed as follows:
„The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings."
In view of the law laid by the Apex Court in the judgement referred supra, failure to devote to duty constitutes misconduct.
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 the sense it 2 (1979) 2 SCC 286 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 14 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. Where the power to suspend is provided for either in the contract of employment or in the statute or the rules framed thereunder, 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.
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. As an employer can suspend an employee pending an inquiry into his conduct, the only question that can arise on such suspension 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.
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 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 15 public interest, the impact of the delinquent‟s continuance in office while facing departmental inquiry or trial of a criminal charge. 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 India3).
Ordinarily, a government servant is placed under suspension to restrain him from availing 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. 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. 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 3 1963 AIR 687 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 16 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.
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. 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 be 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.
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 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 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 17 available material as to whether, in a given case, it is advisable 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. 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. The court cannot act as if it is an appellate forum de hors the power of judicial review. 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. 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, the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
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 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 18 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 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 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 19 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.
In view of the law declared by the Apex Court in the judgments referred above, this Court has to examine the facts of the present case.
The first requirement is gravity of the charge of misconduct. Placing an employee under suspension by exercising power under Rule 8 of the Rules, the allegations against these petitioners is that, they have not displayed devotion to duty, while undertaking survey, as directed by this Court and in view of the appointment by the second respondent. In pursuance of the appointment to conduct survey, the petitioners reported excavation of rock mass is 1,45,779 cum, whereas, the earlier survey report would show different quantity of rock mass excavation. Moreover, the lease holder himself disclosed extraction of 4,18,619 Cum of rock mass at the time of renewal of his lease in the year 2013 itself. On account of the variation, the Government has to impose necessary penalty on the lease holder. But, due to report of these petitioners, the State is put to serious loss as the Government deprived of the amount by CJ & MSM,J WA Nos.682, 683 & 687 of 2021 20 way of penalty to be imposed against the lease holder, calculated it to Rs.215.06 crores. Therefore, causing such loss for the failure of the petitioners to display devotion to duty would prima facie and attract misconduct under Sub-Rule (4) of Rule 3 of the Rules.
The second requirement to place the Government servant under suspension is that, there must be some evidence before placing a Government servant under suspension. Here, in this case, the second respondent concluded that there is prima facie evidence in support of the allegations based on the report of the petitioners and disclosure made by the lease holder at the time of renewal of lease. But, the truth or otherwise in those reports cannot be decided by this Court at this stage, while deciding the legality of the order passed by the learned single Judge in the Intra Court Appeal. The variation in reports and disclosure made by the lease holder is sufficient to conclude to form the basis prima facie to conclude that the petitioners failed to display devotion to duty which resulted in serious financial loss to the State.
The main thrust of the learned counsel for the writ petitioners Sri N. Vijay 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 prima facie material. 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 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 21 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 after 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 Ghosh v. State of Bihar4, 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 officer concerned to function in the ordinary way. Again, in Union of India v. Ashok Kumar Aggarwal5, the Supreme Court held that the delinquent cannot be considered to be any better 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.
After referring to the earlier Judgments in O.P. Gupta v. Union of India6, 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 4 (1971) 1 SCC 734 5 (2013) 16 SCC 147 6 (1987) 4 SCC 328 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 22 passed; 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.
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 Chand v. Union of India7, Union of India v. R.P. Kapur8 and V.P. Girdroniya v. State of Madhya Pradesh9; as also the other judgments of the Supreme Court in Ashok Kumar Aggarwal; U.P. Rajya Krishi Utpadan Mandi v. Sanjiv Rajan10; Secretary to Government, Prohibition and Excise v. L. Srinivasan11; and Allahabad Bank v. Deepak Kumar Bhola12 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 7 1963 AIR 687 8 AIR 1964 SC 787 9 (1970) 1 SCC 362 10 1993 Supp (3) SCC 483 11 (1996) 3 SCC 157 12 (1997) 4 SCC 1 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 23 Andhra Pradesh in Buddana Venkata Murali Krishna v. State Of A.P.13 to which one of us (i.e. MSM,J) is 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 impugned order of suspension, keeping in view of the seriousness and gravity of the misconduct contemplated to be enquired into and the material disclosure of report by the lease holder, while passing impugned order of suspension of the petitioner is supported by prima facie evidence.
The documentary evidence placed on record clearly established prima facie case and it forms basis for placing these petitioners under suspension by the second respondent and there is every possibility of interfering with the enquiry, in case, their suspension is revoked. Apart from that, irregular report of the petitioners is likely to cause substantial loss to the State. Therefore, we find prima facie material against these petitioners for placing them under suspension.
When the suspension is not selective and not malafide, the same cannot be revoked by exercising power of this Court under Article 226 of the Constitution of India. Learned counsel for the writ petitioners contended that, continuation of the petitioners for indefinite period under suspension is illegal, arbitrary and violative of Article 14 of the Constitution of India.
13 2016 (3) ALT 727 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 24 In U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan (referred supra) the Apex Court while dealing with the issue of suspension held as follows:
"The ground given by the High Court to stay the operation of the suspension order, is patently wrong. There is no restriction on the authority to pass a suspension order second time. The first order might be withdrawn by the authority on the ground that at that stage, the evidence appearing against the delinquent employee is not sufficient or for some reason, which is not connected with the merits of the case. As happened in the present case, the earlier order of suspension dated 22nd March, 1991 was quashed by the High Court on the ground that some other suspended officer had been allowed to join duties. That order had nothing to do with the merits of the case. Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question-and hence it is always advisable to allow the disciplinary proceedings to continue unhindered.It is possible that in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory, lo direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the present case, the charge-sheet was filed alter almost a year of the order of suspension. However, the facts pleaded by the appellants show that the-defalcations were over a long period from 1986 to 1991 and they involved some lakhs, of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was bound to take some time. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not. However, in the present case the High Court has not quashed the order of suspension on the ground of delay in framing of the charges. As stated earlier, it has set aside the order of suspension on the ground that the authority had no power to pass the second order of suspension in the same case. We are afraid that the High Court has misconstrued the nature and purpose of the power of suspension vested in the management. It is not disputed that at present all officers concerned are served with the charge-sheets and have been suspended. There is no discrimination between the officers on that account. The charges are also grave and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue in employment to enable them to conduct the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justified.
(emphasis supplied) CJ & MSM,J WA Nos.682, 683 & 687 of 2021 25 In P.N. Raikwar and others v. State of Madhya Pradesh14, the High Court of Madhya Pradesh relied on the judgment of U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan (referred supra) and held that, Courts should not ordinarily interfere with the suspension orders unless passed malafide and without there being even a prima facie evidence connecting the delinquent with the misconduct in question.
Applying the principle laid down by the Apex Court and various High Courts in the judgments referred supra, it is clear that Article 14 of the Constitution of India cannot be invoked for negative enforcement of right. The petitioners are not entitled to claim such relief invoking Article
14 of the Constitution of India on the ground that the report submitted by them is correct. Hence, by applying the principle laid down in the above judgments, it is difficult to accept the contention of learned counsel for the petitioners.
The learned single Judge concluded that, indefinite period of suspension is a stigma on the employee and it would cause colossal loss to the petitioners, being employees, since the charge memo was not filed, the contention of these petitioners under suspension is illegal. But, this reason is factually incorrect, as the charge memo was already served on the petitioners on 12.08.2020 itself i.e. within two months from the date of placing these petitioners under suspension. A copy of the charge memo and suspension order vide proceedings No.3430252/D1-2/2020-1 dated 12.08.2020 are also placed on record to establish the same. Therefore, the learned single Judge erroneously concluded that, no charge memo was served on these petitioners. Therefore, the reason recorded by the learned 14 W.P.No.10787 of 2012 & batch dated 14.03.2013 CJ & MSM,J WA Nos.682, 683 & 687 of 2021 26 single Judge and the revocation of order, based on the principle of Ajay Kumar Choudary case (referred supra) is contrary to the law and facts.
Learned counsel for the petitioners, in addition to the judgment in "Ajay Kumar Choudhary v. Union of India" (referred supra), placed reliance on the judgment of the Apex Court in "Union of India v. Ashok Kumar Aggarwal" (referred supra), which we referred in the earlier paragraphs, he also drew our attention to the principle laid down in another judgment of the Apex Court in "State of Tamil Nadu, represented by Secretary to Government (Home) v. Promod Kumar, IPS15", where the Apex Court held that suspension order, if continued for more than 6 years, the same is held to be illegal in the circumstances of the particular case. In such circumstances, continued suspension of officer is no longer required since his reinstatement would not be threat to fair trial. But this principle has no direct application to the present facts of the case since charge memos were already served and enquiry was commenced, but the writ petitioners are avoiding the enquiry, obtained interim direction against completion of enquiry. In addition to the above judgment, learned counsel for the petitioners would draw our attention to the judgment of the Division Bench of this Court in "A.B.Venkateswara Rao v. State of Andhra Pradesh16", where this Court held as follows:
"The ultimate conclusions of the preliminary report are that (a) the specifications, parameters were changed to suit some vested interest and (b) the son of the petitioner gave a demonstration of the equipment.
This Court in line with the judgments cited above has examined the submissions made and the documents. The gravity of the misconduct and the nature of evidence are matters which should weigh with the Appointing Authority to decide on the suspension. Similarly, there should be a strong prima facie case at this stage to come to the conclusion that the delinquent is likely to be imposed major penalty. If, the available material before the Appointing Authority for passing the order of 15 (2018) 17 SCC 677 16 2020 (6) ALD 33 (AP) (DB) CJ & MSM,J WA Nos.682, 683 & 687 of 2021 27 suspension dated 08.02.2020 is examined, it does not lead to a conclusion that the petitioner himself was solely responsible for reducing the specifications, parameters, payment conditions etc.,. The preliminary report does not specify that the petitioner alone had an important role in the reduction of the parameters, payment conditions etc. The exact role of the son is not mentioned particularly as the earlier visits of the Officers to Israel etc., are mentioned. The reasons for the disqualification of the three bidders; their bids etc., are not mentioned. The gravity of the offence, in the opinion of the Court, is not clearly considered and a strong prima facie case in line with the decision in Ajay Kumar Choudhary's case (supra) is not ex facie visible in the suspension order.
Therefore this Court opines that there is no material to justify the placing of the petitioner under suspension. This Court also holds that the "circumstances" and the "satisfaction" as needed under the rule in question are not present."
The facts of the above two cases are distinguishable for the reason that the act of the petitioners would cause substantial loss to the State exchequer since the State is deprived to collect penalty of Rs.215.06 crores from the leaseholder of the mine on account of such report, despite the admission made by the leaseholder at the time of renewal about the quantity of rock mass extracted from the mine is more than the quantity assessed by the petitioners in the year 2013 itself. Therefore, the gravity of misconduct to be enquired into against the petitioner is grave in nature and there is sufficient material to proceed against them for the misconduct attributed to them. Hence, those principles have no application to the facts of the present case.
On the other hand, as per G.O.Ms.No.526 General Administration (Services-C) Department dated 19.08.2008, Government directed the employees who are under suspension for a period exceeding two years shall be reinstated pending finalization of the disciplinary cases / criminal cases against them. However, in exceptional cases, for example, where the charged Officers are not co-operating for completion of investigation / inquiry or when the inquiry / investigation could not be completed due to pendency of litigation, a Committee headed by the CJ & MSM,J WA Nos.682, 683 & 687 of 2021 28 Secretary of the administrative Department, Head of the Department concerned and an Official from the Anti Corruption Bureau (where the cases are emanated from Anti Corruption Bureau investigation), shall review the orders of suspension against the employees who are continued under suspension well before completion of two years of suspension and take a decision to continue such employees under suspension beyond two years, duly recording the reasons for such a decision.
In view of G.O.Ms.No.526 General Administration (Services-C) Department dated 19.08.2008, suspension can be extended beyond the initial period after conducting necessary review when the employee is not cooperating. In the instant case, it is also contended by learned Additional Advocate General that, a notice was served on the petitioners in the enquiry, but the petitioners are not cooperating with the enquiry and filed writ petition to obtain stay of enquiry. In the circumstances stated above, the authorities concerned are required to review the suspension order in terms of G.O.Ms.No.526 General Administration (Services-C) Department dated 19.08.2008 and extend the period of suspension periodically and the employees under suspension are entitled to claim subsistence allowance, as per Rules.
Though the learned counsel for the petitioners Sri N. Vijay raised several questions regarding correctness of various reports, such examination to find out the correctness of any of the reports shall not be undertaken in the writ petitions, in view of the limited jurisdiction.
The learned single Judge on misconception, held that, no charge memo was filed and continuation of these petitioners under suspension CJ & MSM,J WA Nos.682, 683 & 687 of 2021 29 for indefinite period is declared as illegal, without considering that the charge memo was served on the petitioner and stay granted by the Court against disciplinary enquiry. Hence, the common order passed by the learned single Judge in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021 is against the law, not based on correct facts and liable to be set-aside. Accordingly, the point is answered and the common order passed by the learned single Judge in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021 is not sustainable under law and the same is hereby set-aside.
In the result, all the three writ appeals are allowed, setting-aside the common order passed by the learned single Judge in W.P.No.14687, 14689 and 14691 of 2021 dated 22.09.2021. No costs.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J Sp/Ksp