Andhra HC (Pre-Telangana)
1.The Prl. Secretary To Govt., Higher ... vs 1.Kum. A.Bhavani, D/O Sri ... on 30 October, 2017
Author: M.Ganga Rao
Bench: M.Ganga Rao
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.33000 of 2017
30-10-2017
1.The Prl. Secretary to Govt., Higher Edn. (I.E.1) Dept., Telangana State, Secretariat Bldgs., Hyderabad-22 2. The Commissio
Nampally, Hyderabad-01 Petitioners/Respondents 3&4
1.Kum. A.Bhavani, D/o Sri A.Shankaraiah, Aged about 31 years, Occ: Jr. Lecturer in Hindi, Govt. Jr. College, Yacharam, Ranga
Respondent/Applicant in O.A.No.8237/2012 2. Prl. Secretary to Govt. Higher Edn., IE1) Dept., Secretariat Bldgs., Hyderaba
Nampally, Hyderabad-01 Respondents/Respondents (R2 & R3 are not necessary parties in this W.P.)
Counsel for the Petitioners:Government Pleader for
Services-I (Telangana)
Counsel for Respondent No.1:Smt. Ch.Sujatha
Counsel for Respondents 2&3: ---
<Gist:
>Head Note:
? Cases referred:
Nil.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.33000 of 2017
Order: (per V.Ramasubramanian, J.)
Aggrieved by the order of the Andhra Pradesh
Administrative Tribunal directing the Government to
regularise the period of suspension of the 1st respondent
herein as duty period with all consequential benefits, the
State of Telangana has come up with the above writ petition.
2. Heard the learned Government Pleader for Services-I
(Telangana) appearing for the petitioners and
Smt. Ch.Sujatha, learned counsel appearing for the
1st respondent.
3. When the 1st respondent herein was working as
a Junior Lecturer (Hindi) in the Government Junior College,
she was placed under suspension on 13-10-2009.
The following Article of Charge was framed against her:
That the said Ms A.Bhavani, JL in Hindi, Govt. Jr. College,
Yacharam, Ranga Reddy District during the academic year
2009-10 was continuously absent to her duties from
03-6-2009 to 06-6-2009 without obtaining prior permission
from Higher authorities. Further, she has signed in the
attendance register in columns marked as CLs., by higher
authorities ignoring the instructions of the in-charge
Principals which is highly unbecoming which leads to
disobedience, insubordination towards higher officers on
her part. Thus she acted in an irresponsible way towards
her legitimate duties and attracts rule 3(2) of APCS
(Conduct) Rules, 1964 and warrants deterrent action
against her for tampering the attendance register of the
college.
4. Eventually the Director of Intermediate Education,
imposed a penalty of stoppage of one increment without
cumulative effect, by an order dated 30-10-2010. By the very
same order, the 1st respondent was directed to be reinstated
into service after revocation of the order of suspension.
5. Aggrieved by the penalty, the 1st respondent filed
a regular appeal to the Government. By an order dated
28-10-2011, the Government modified the penalty into one of
Censure. This order has attained finality.
6. However, the competent authority did not pass any
order as to how to treat the period of suspension from
28-10-2009 to 18-11-2010. Therefore, the 1st respondent filed
an application in O.A.No.8237 of 2012 on the file of the A.P.
Administrative Tribunal. Finding that a major penalty
proceedings ultimately resulted only in a minor penalty of
censure and also finding that the issue with respect to the
treatment of the period of suspension in such cases, was
already covered by a decision of this Court in A.V. Vinod
Kumar v. Executive Committee of Central Warehousing
Corporation, New Delhi [2007 (5) ALD 445], the Tribunal
allowed the application filed by the 1st respondent and
directed the Government to treat the period of suspension as
duty for all purposes including pay and allowances. Aggrieved
by the said order, the State has come up with the above writ
petition.
7. Placing reliance upon Fundamental Rule 54-B(7), it is
contended by the learned Government Pleader for Services-I
that at the most the competent authority can only treat the
period of suspension as leave of any kind due and admissible
to the Government servant and that therefore the order of the
Tribunal directing the period of suspension to be treated as
duty period is contrary to the Fundamental Rules.
8. We have carefully considered the above submissions.
Before dealing with the legal issues, we are compelled to take
note of certain things. We have already extracted the one and
only charge framed against the 1st respondent.
9. Though there was only one Article of Charge, the
same was actually split into two portions, the first comprising
of the absence of the 1st respondent from 03-6-2009 to
06-6-2009 without permission and the second comprising of
her action in signing the attendance register. The enquiry
report in respect of such major penalty proceedings runs to
just two pages. The analysis and assessment of the evidence,
is confined to one paragraph of the enquiry report which
reads as follows:
In her defence statement she denied the charges
framed against her. The incharge Principal stated that
Smt. A.Bhavani signed in the attendance register on the CL
marked columns for four days on 08-6-2009. Further she
stated that she has not taken any prior permission for four
days. The teaching staff members (those who were attended
on that day) are also stated that she has not attended the
college for four days. Further she signed on CL marked
columns for four days. Attendance register also clearly
shows that she has signed on CL marked columns. There is
a lot of difference between her normal signatures and that
four days signature. Hence it is construed that she is
a guilty.
10. It is based upon the aforesaid finding that the
Director of Intermediate Education passed the original order
of penalty, imposing a punishment of stoppage of one
increment without cumulative effect. In other words, the
Disciplinary Authority did not find it proper to impose a major
penalty, despite the proceedings being initiated for a major
penalty.
11. The mistake committed by the Disciplinary
Authority was that he failed to address himself to the
question whether the suspension for a period of nearly one
year, in this case was justified or not. He simply ordered
reinstatement.
12. The Government modified the penalty and reduced
the same into one of censure. The Government also did not
pass any order in terms of F.R. 54-B. Therefore, the
conclusion that is inevitable is that there was no enough
material for the Government to impose a major penalty.
Having kept the 1st respondent under suspension for a period
of more than a year from 28-10-2009 to 18-11-2010, the only
honourable way out for the Government was to impose some
penalty and this is what they have done.
13. Coming to the contention revolving around
F.R. 54-B, it is seen that sub-rule (1) of F.R. 54-B requires the
competent authority to make a specific order regarding pay
and allowances to be paid for the period of suspension.
Sub-rule (1) of F.R. 54-B reads as follows:
(1) When a Government servant who has been
suspended is reinstated or would have been so reinstated
but for his retirement while under suspension; the
authority competent to order reinstatement shall consider
and make a specific order
(a) regarding the pay and allowances to be paid to
the Government servant for the period of suspension ending
with reinstatement or the date of his retirement on
superannuation, as the case may be; and
(b) whether or not the said period shall be treated as
a period spent on duty.
14. Sub-rule (2) of F.R. 54-B deals with the case of
a Government servant under suspension, who dies before
a final order is passed. Sub-rule (3) deals with cases where
the competent authority finds the suspension wholly
unjustified. Sub-rule (3) reads as follows:
(3) Where the authority competent to order reinstatement
is of the opinion that the suspension was wholly
unjustified, the Government servant shall subject to the
provisions of sub-rule (8), be paid the full pay and
allowances to which he would have been entitled, had he
not been suspended:
Provided that where such authority is of the opinion
that the termination of the proceedings instituted against
the Government servant had been delayed due to reasons
directly attributable to the Government servant, it may after
giving him an opportunity to make his representation
within sixty days from the date on which communication to
this regard is served on him and after considering the
representation, if any submitted by him, direct for reasons
to be recorded in writing, that the Government servant shall
be paid for the period of such delay only such amount (not
being the whole) of such pay and allowances as it may
determine.
15. Under sub-rule (4), the period of suspension should
be treated as a period spent on duty for all purposes, if the
case falls under sub-rule (3). Sub-rule (4) reads as follows:
(4) In a case falling under sub-rule (3) the period of
suspension shall be treated as a period spent on duty for all
purposes.
16. It is only in cases which do not fall under sub-rules
(2) or (3), that the pay and allowances payable to the
Government servant should be limited to the subsistence
allowance already paid. Sub-rules (5) and (7) of F.R. 54-B
read as follows:
(5) In cases other than those falling under sub-rules (2)
and (3) the pay and allowances payable to the Government
servant for the period of suspension, shall be limited to the
subsistence allowance already paid under FR 53.
(7) In a case falling under sub-rule (5) the period of
suspension shall not be treated as a period spent on duty:
Provided that if the Government servant so desires,
such authority may order that the period of suspension
shall be converted into leave of any kind due and
admissible to the Government servant.
17. It is only in cases which fall under sub-rule (5) that
the period of suspension shall not be treated as a period
spent on duty. In this case the competent authority did not
even address itself to the question whether the suspension
was wholly unjustified or not. In other words, there was no
compliance with F.R. 54-B(3). Therefore, the Tribunal itself
had to apply its mind.
18. As rightly observed by the Tribunal, the
1st respondent was put on defence in major penalty
proceedings. Eventually the Department could impose only
the minor penalty of censure. Therefore, keeping the
1st respondent under suspension for more than a year,
in cases of this nature, was obviously unjustified. Therefore,
the Tribunal was right in allowing the application. We find no
merits in the writ petition, hence, it is dismissed.
The miscellaneous petitions, if any, pending in this writ
petition shall stand closed. No costs.
__________________________
V.RAMASUBRAMANIAN, J.
__________________ M.GANGA RAO, J. 30th October, 2017.