Andhra Pradesh High Court - Amravati
M. Hariya Naik, vs The State Of Andhra Pradesh on 3 March, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.13969 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"toissue a direction, order or writ more particularly one in the nature of writ of Certiorari:
a. Calling for all the relevant records related to and connected with Rc.No.A1/180/2019 dated 28.1.2020 of the 3rd Respondent as also Rc.No.COE 13025(43)/86/2019 C SEC Endowments dated 23.1.2020 of the 2nd Respondent (not issued to the Petitioner) and quash or set aside the same holding it as arbitrary, illegal, unjust, violative of Article 14 of the Constitution of India;
b. Consequently, direct the 3rd Respondent to reinstate the petitioner together with all benefits treating the entire period of suspension as spent on duty and release monetary and other service benefits that flow out of the quashing of the impugned order and granting the direction prayed for"
The petitioner was appointed on Nominal Muster Roll Basis in the third respondent - Devasthanam and joined in the service on 0 1.11.1989. He has been regularized as a helper in 1992 and was granted time scale in 1994. By virtue of seniority, he was promoted as Record Assistant in 2009; Junior Assistant in 2009 and Senior Assistant in 2011.
As a matter of routine transfers, the petitioner was posted in the Indian Oil Corporation petrol bunk managed by the 3rd Respondent Devasthanam. As the petrol bunk is wholly managed by the Devasthanam and in view of shortage of manpower and also in consonance with the present policy of the Devasthanam, the personnel physically managing the petrol bunk are employees from the outsourcing agency, while the maintenance of stock position, MSM,J WP_13969_2020 2 loading and unloading, payment to be made to the Indian Oil Corporation etc. are being taken care of by regular employees of the 3rd Respondent Devasthanam. The functioning of the petrol bunk i.e., the duties of both the outsourced employees and the regular employees is entrusted to the Superintendent who works under the Assistant Executive Officer who is the overall in-charge of the petrol bunk.
As the outsourced employees handle dispensing petrol and diesel to the customers, collection of amount sale of towards that head, remittance of the amount into the Devasthanam, shall done by them. The outsourced employee will ensure compliance of this requirement and the Superintendent is bound to ensure strict compliance of their duties. The Assistant Executive Officer who is the overall in-charge would be vicariously liable for the commissions and omissions of the outsourced employees.
As there was no supervision on the working of outsourced employees, taking advantage of the said fact, they appear to misappropriated the collections from the petrol bunk instead of remitting it into the third respondent - Devasthanam. When the accounts of the petrol bunk were audited by the Assistant Audit Officer, State Audit, it was reported that there were short remittances from the petrol bunk. The Assistant Commissioner was asked to look into the same and submit a report. Strangely, the said officer constituted a Committee for the purpose, comprising of three supervisors and assistants. The said Committee made it categorically clear that one Gurumurthy and Anil Kumar, outsourced employees were responsible for the short MSM,J WP_13969_2020 3 remittance and in fact, they have misappropriated the money. The outsourcing agency, M/s. Srisaileswara Agencies Limited, who were the principal employer of the outsourced employees, was called upon to remit the amount of Rs.41,69,402/-. Criminal action also was sought to be initiated against those two employees wherein they have been shown as Accused 1 and 2 respectively. The said accused, in their confessional statements, implicated the petitioner along with one Sri G.Ravi who, according to them were the employees of the 3rd Respondent Devasthanam working in the petrol bunk. Based on the confessional statement, the petitioner has been arrayed as Accused No.4 in Crime No. 51 of 2019 on the file of Srisailam I Town Police station, Kurnool District. The petitioner filed Criminal Petition No.8146 of 2019 for grant of anticipatory bail and the same was allowed by this Court on 08.01.2020, observing that nothing was attributed to the petitioners in F.I.R, stating that they are also involved in misappropriation of the money and came to the conclusion that the accusation made against them is prima facie not well founded at that stage.
Based on the confessional statement, the Devasthanam also conducted a preliminary enquiry on petitioner's probable culpability and issued a Memo on 10.10.2019 asking the petitioner to submit his explanation on the allegation of lack of supervision on a day-to-day basis. The petitioner submitted his explanation on 17.10.2019 specifically pointing out that the duties expected of the petitioner do not relate in any way to the collection and deposit of money from the sale of petrol and diesel MSM,J WP_13969_2020 4 from the petrol bunk. Since the Committee appeared to have observed that disciplinary action may be considered for the purported dereliction of duty and based on the orders of the 2nd Respondent dated 23.1.2010 to initiate disciplinary action against the petitioner, the 3rd Respondent Devasthanam issued R.C.No.A1/180/2019 dated 28.1.2020 placing the petitioner under suspension. The petitioner submitted a detailed representation on 12.2.2020 requesting to revoke the suspension and reinstate him in service, as the action itself has been initiated on the dictation of the 2nd Respondent, the 3rd Respondent has only been maintaining stoic silence. It is contended that the order passed by the second respondent placing this petitioner under suspension is illegal and arbitrary and raised several grounds, they are as follows:
a) The order passed by the second respondent placing this petitioner under suspension is without any tangible evidence and material, same is illegal.
b) The second respondent without applying his mind to the facts and circumstances of the case including the allegations made against this petitioner, as a matter of routine, same is illegal.
c) The petitioner was placed under suspension, leaving the Superintendent, Assistant Executive Officer under whose aegis the petrol bunk is being run and thereby the selective suspension cannot be sustained.
d) The petitioner further contended that though six months. From the date of placing this petitioner under suspension, no charge memo was served on this petitioner commencing disciplinary action against this petitioner which is sufficient to indicate that there is no material worthy to substantiate the allegations made against this petitioner for which he has been suspended. Therefore the action of the second respondent lacks bonafides and it is in violation of right of equality MSM,J WP_13969_2020 5 guaranteed under part III of the Constitution of India.
e) It is further contended that the allegations made against the petitioner is lacking supervision which will not amount to misconduct and that the order placing is petitioner under suspension for contemplating initiation of disciplinary proceedings is illegal.
f) Finally it is contended that when the enquiry period of six months is completed from the date of placing this petitioner under suspension under the impugned order, no review is taken up by the concerned authority and no enquiry was initiated till date, thereby the Court can infer that there is no material to proceed against this petitioner and thereby the balance of convenience is in favour of this petitioner and against the respondents, finally requested to pass order as stated supra.
The respondents filed counter affidavit denying specific grounds raised in the writ affidavit, while admitting about passing of impugned suspension order against this petitioner, placing him under suspension under the impugned order, registration of crime against this petitioner and others in Crime No.51 of 2019 on the file of Srisailam I Town Police Station, Kurnool District.
The respondents also admitted that this petitioner is posted to work in the petrol bunk being managed by the Devasthanam and his duties are specific. He has to supervise the entire loading and dispensation of petrol by the outsourced employees to the customers and maintain accounts but failed to supervise the affairs of the petrol bunk being the supervisor of the petrol bunk and on account of lack of supervision an amount of Rs.41,69,402/- is found MSM,J WP_13969_2020 6 misappropriated by the audit officer for the financial year 2016-2017. The preliminary enquiry also disclosed that this petitioner and others involved in such misappropriation, therefore crime was registered against this petitioner vide Crime No.51 of 2019 on the file of Srisailam I Town Police Station, Kurnool District.
It is specifically contended that on 16.05.2019 the following nine employees were ordered to appear before the enquiry officer for enquiry with all the related material of IOCL petrol bunk pertaining to the financial year 2016 - 2017.
1. Sri G.Ravi, Senior Assistant
2. Sri M.Hariya Naik, Senior Assistant
3. Sri K.Ayyanna, Senior Assistant
4. Sri M.Ramanaidu, Record Assistant
5. Sri K.Srinivasulu, Record Assistant
6. Sri K.Venkata Ramana, Record Assistant
7. Sri V.Gowri Shankar, Contract Labour
8. Sri Guru Murthy, Outsourcing
9. Sri S.Anil Kumar, Outsourcing Agency The petitioner who is working in the cadre of Senior Assistant has submitted his explanation on 24.05.2019 stating that he is not responsible for the Bill Books or any records relating to Petrol Bunk and the Counter Clerks are responsible for the misappropriation. The Enquiry Officer rejected their explanation, on 07.06.2019 and ordered to submit the documents. Due to gravity of the case, the Executive Officer constituted a Team on 15.08.2019. The Team scrutinized the records and submitted their report on 22.09.2019, so far as the petitioner is concerned stating that, during 01.12.2016 to 09.08.2017 the petitioner worked as in-charge clerk in IOCL and not performed duties with MSM,J WP_13969_2020 7 responsibility which has led to misappropriation of funds to the tune of Rs.28,61,541/- in connivance with the outsourcing staff namely Guru Murthy and Anil Kumar. Hence, recommended disciplinary action for negligence of duties as per rules in G.O.Ms.No.830 dated 18.08.1989. Therefore the petitioner being the in-charge clerk of the petrol bunk in connivance with the one G. Ravi had managed to misappropriate Rs.41,69,402/- for the entire financial year 2016 - 2017.
It is also contended that from 01.04.2016 to 07.08.2017 the petitioner while working at the petrol bunk maintained by the Devasthanam, along with the outsourcing staff, also Assistant Executive Officer and Superintendent misappropriated an amount of nearly Rs.28,61,541/- and did not remit the same into the bank account and the same was detected by the Audit Officer, State Audit and raised specific objection. Thus the petitioner directly involved in such illegal activity of misappropriation of Devasthanam funds.
It is further contended that, based on the preliminary enquiry officer report, a charge memo was issued vide Rc.No.A1/180/2019 dated 10-10-2019 consisting of three charges to conduct regular departmental enquiry and further directed the petitioner to submit explanation within seven days or otherwise action will be taken basing on the available records with the Devasthanam as per Rules i.e., Office MSM,J WP_13969_2020 8 Holders Servants Punishments Rules, 1987 vide G.O.Ms.No.830 Revenue (Endts-I) Department Dated 18-08- 1989. Accordingly, the petitioner submitted his explanation dated 17-10-2019 to the 3rd respondent denying the charges and requested to drop further proceedings. The second respondent issued proceedings vide Rc.No.COE.13025(43)/86/2019 C SEC Endowments dated 23.01.2020 by which the Joint Commissioner of Endowments (Estates) was appointed as Enquiry Officer to conduct regular enquiry. While things stood thus, other misappropriation of other amount was unearthed in other wings of the Devasthanam and a preliminary enquiry was conducted by the Additional Commissioner of Endowments and submitted a report basing on which as many as ten employees were placed under suspension and the Devasthanam and ACB authorities conducted a detailed enquiry/investigation and because of that reason, only the enquiry pertaining to this petitioner was delayed, but not otherwise.
The third respondent issued proceedings Rc.No.A1/180/2019 dated 28.01.2020 by which the
petitioner was placed under suspension and the second respondent issued suspension orders legally valid and justifiable in facts and circumstances of the case referred supra and requested to dismiss the writ petition. During hearing Sri Goda Siva, learned counsel for the MSM,J WP_13969_2020 9 petitioner raised a specific ground that suspension cannot be continued for more than three months and continuation of suspension without review is a serious illegality after expiry of six months period and that when the enquiry is not initiated and completed, the suspension order is to be set aside and the government servant has to be reinstated in service. In support of his contention, learned counsel for the petitioner placed reliance on the judgement of Supreme Court in Ajay Kumar Choudhary v. Union of India1 and K. Sukhendar Reddy v. State of Andhra Pradesh2. Learned counsel for the petitioner contended that, though the Assistant Executive Officer and the Superintendent are responsible for the management of the petrol bunk being managed by Devasthanam, they were ultimately responsible for any misconduct of the outsourcing employees and this petitioner cannot be saddled with any liability for the alleged misappropriation and those two persons were not placed under suspension, thereby, the suspension order impugned in the writ petition is a selective one and it is violative of Article 14 of the Constitution of India.
Finally, learned counsel for the petitioner contended that Respondent Nos. 2 & 3 have passed the impugned order without applying their mind to the allegations made against this petitioner, did not consider the explanation submitted by the petitioner and till date no enquiry was initiated 1 CDJ 215 SC 129 (Judgment of the Supreme Court in Civil Appeal No.1912 of 2015 (arising out of SLP) No.31761 of 2013 dated 16.02.2015) 2 (1999) 6 Supreme Court Cases 257 MSM,J WP_13969_2020 10 against this petitioner. Thereby, this Court can draw an inference that there is no substantive material to prove against this petitioner to establish lack of supervision over the employees working in the petrol bunk. Even otherwise, such lack of supervision does not amount to misconduct, thereby, the order impugned in the writ petition is liable to be quashed and requested to allow the petition, quashing the impugned orders.
Whereas, Sri G.V.Ramana Rao, learned Standing Counsel for Endowments (Rayalaseema Region) would contend that, the voluminous material collected by the Audit Officer, State Audit would clinchingly establish prima facie involvement of this petitioner in alleged misappropriation of huge amount and the crime is under investigation by the concerned police. Anti Corruption Bureau Officials also took up investigation in this matter and it is not concluded. However, an explanation was called and the petitioner submitted his explanation. Dissatisfied with the explanation submitted by this petitioner, an enquiry was ordered against this petitioner based on the material collected by the officer appointed to conduct preliminary enquiry. Thus, there is sufficient material to conclude that this petitioner failed to supervise the affairs of the petrol bunk, more particularly, loading and unloading of petrol, sales and collection of amount including remittance of the same to the bank account of the Devasthanam, while he was working as incharge of the petrol bunk. This would show that the petitioner did not devote to MSM,J WP_13969_2020 11 his duty, thereby, failed to supervise the affairs of the petrol bunk and lack of supervision would also constitute misconduct as defined under Section 3 of Andhra Pradesh Civil Service (Conduct)s Rules, 1964 and placed reliance on the judgment of the Apex Court in Union of India v. J. Ahmed3.
Learned counsel further contended that as many as ten employees were placed under suspension by the respondent for other financial irregularities after registration of crime against this petitioner and others. It is contended that, suspension of this petitioner cannot be said to be selective suspension. Even otherwise, right to Equality cannot be enforced for negative rights, thereby on that ground petitioner is not entitled to claim the relief against the respondents and consequently the writ petition is liable to be dismissed, as the interference of this Court in suspension orders is limited.
Finally, it is contended that, though suspension of this petitioner for a long period is not permissible in view of the judgement of the Supreme Court in Ajay Kumar Choudhary v. Union of India (referred supra), but still the judgments of the Constitutional Bench as discussed by the Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Buddana Venkata Murali Krishna v. State Of A.P.4, is not a ground to quash the 3 (1979) 2 SCC 286 4 2016 (3) ALT 727 MSM,J WP_13969_2020 12 proceedings against this petitioner and thereby, the principle laid down in Ajay Kumar Choudhary v. Union of India (referred supra) cannot be applied since the Apex Court did not consider the Constitutional Bench judgement in Union of India v. Ashok Kumar Aggarwal5; O.P. Gupta v. Union of India6, Union of India v. R.P. Kapur7. Thus, in view of the judgments referred supra, on the ground of delay of six months in initiation of disciplinary proceedings, learned counsel for the respondent contended that the suspension order cannot be set-aside and prayed to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the point that arise for consideration is as follows:
"Whether the impugned order of suspension placing the petitioner under suspension is selective, without application of mind and without any material. If so, whether this Court while exercising power under Article 226 of the Constitution of India can interfere with the order of suspension and set -aside the same by issuing writ of certiorari?
P O I N T:
The petitioner was admittedly appointed as helper in the the second respondent Devasthanam and he was placed as incharge clerk in the same petrol bunk. Duties of the in-charge clerk is to supervise the entire petrol bunk including loading and dispensation of petrol to the customers; collection of amount from the customers by the
5 (2013) 16 SCC 147 6 (1987) 4 SCC 328 7 AIR 1964 SC 787 MSM,J WP_13969_2020 13 outsourcing employees and remit the same to the bank account of the second respondent-Devasthanam.
The contention of the petitioner is that he is not supervising the petrol bunk and the Assistant Executive Officer and Superintendent are the persons supervising affairs of the petrol bunk and they are liable for any such misappropriation found during the audit of accounts.
It is a most unfortunate situation prevailing in the third respondent- Sri Bhramarambika Mallikarjuna Swamy Devasthanam. The amount to be credited to the temple is misappropriated by its employees. The employees are under the obligation to protect the property of the temple. But instead of doing so, they themselves indulged in misappropriation allegedly to a tune of Rs.41,69,402/-. The same was unearthed by the Audit Officer during State Audit and during the period of supervision of this petitioner, an amount of Rs.28,61,541/- was not remitted to the bank account of the Devasthanam. During the said period, the petitioner was the incharge of the petrol bunk who was taking care of the affairs of the petrol bunk being managed by the Devasthanam, the petitioner failed to supervise the work done by the staff in the petrol bunk which lead to misappropriation of huge amount during his tenure. Therefore, the second respondent issued show cause notice calling upon explanation of this petitioner. Accordingly, the petitioner submitted his explanation. But still, the second respondent found the petitioner prima facie guilty of dereliction of his duties i.e. failure to supervise the affairs of the petrol bunk.
MSM,J WP_13969_2020 14 One of the contentions of the petitioner is that failure to supervise the affairs of the petrol bunk does not constitute misconduct. According to Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964;
(1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety.
(2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government.
(3) No Government employee shall act in a manner which will place his official position under any kind of embarrassment. (4) 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. Explanation:- Nothing in sub-rule (4) shall be construed as empowering a Government employee to evade his responsibilities by seeking instructions from, or approval of, an official superior where such instructions are not necessary under the scheme of distribution of powers and responsibilities.
[(5) Every Government servant holding a superior post shall take all possible steps to ensure the integrity and devotion to duty of all MSM,J WP_13969_2020 15 government servants for the time being under his control and authority.
Explanation: - A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty.] [(6) Prohibition regarding employment of children below 14 years of age : -No member of the service shall employ to work any child below the age of 14 years.] 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.
In Union of India v. J. Ahmed (referred supra), 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 MSM,J WP_13969_2020 16 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.
Turning to the present case, failure to supervise the petrol bunk constitutes misconduct prima facie. Having exclusive control over the supervision of the petrol bunk, to supervise the affairs of the petrol bunk which constitutes failure to devotion to duty. Thus, the petitioner failed to devote to duty and thereby it attracts misconduct as defined under Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964. The contention of the petitioner that lack of supervision does not amount to misconduct is hereby rejected, in view of the law referred above. However, this finding is only for limited purpose of deciding the issue and the enquiry officer, if any, appointed for conducting enquiry against this petitioner shall conduct enquiry uninfluenced by the observation(s) or finding(s) recorded herein above and shall decide the misconduct of this petitioner independently.
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 MSM,J WP_13969_2020 17 suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time, the officer is legally dismissed he must not do anything in the discharge of the duties of his office. In other words, the employer is regarded as issuing an order to the employee which, because the contract is subsisting, the employee must obey. 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 will relate to the payment during the period of such suspension. If there is a provision in the Rules providing for the scale of payment during suspension, the payment would be in accordance therewith. On general principles, therefore, the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental inquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental inquiry against him.
MSM,J WP_13969_2020 18 An order of suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority should also keep in mind the public interest, 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 India8). Ordinarily, a government servant is placed under suspension to restrain him from availing the further opportunity to perpetrate the alleged misconduct or to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry, etc. It would also remove the impression, among members of the service that dereliction of duty would pay. 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 8 1963 AIR 687 MSM,J WP_13969_2020 19 facilitate a departmental enquiry and to ensure that, while such enquiry is going on-it may relate to serious lapses on the part of a public servant-, he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry.
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 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 usual ground for suspension, pending a criminal proceeding, is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge.
The power of suspension should, however, not be exercised in an arbitrary manner and without any reasonable ground or as a MSM,J WP_13969_2020 20 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 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 MSM,J WP_13969_2020 21 impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. The authority should also keep in mind the public interest of the impact of the delinquent's continuance in office 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 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 MSM,J WP_13969_2020 22 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 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. The allegation against the petitioner is that he has misappropriated MSM,J WP_13969_2020 23 huge amount of money belonging to Devasthanam which is a grave misconduct since such acts are prejudicial to the interest of the State. Therefore, keeping in view of the gravity of the misconduct sought to be enquired into, the petitioner is placed under suspension by the 2nd respondent.
The second requirement to place the Government servant under suspension is there must be some evidence before placing a Government servant under suspension. Here in this case, the second respondent concluded that there is prima facie evidence in support of the allegations based on the report of the Audit Officer, State Audit. The said report is sufficient to form the basis, prima facie to conclude that petitioner is indulged in the serious financial irregularities prejudicial to the interest of the State.
The main thrust of the learned counsel for the petitioner is that when the suspension is tainted by mala fides, not supported by any material, the Court can interfere with the suspension orders. No doubt, the Court can interfere with such mala fides orders not supported by any material, but interference is limited. However, in this case, as discussed above, there is some 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 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 MSM,J WP_13969_2020 24 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 Bihar9, 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 Ashok Kumar Aggarwal's case, the Supreme Court held that the delinquent cannot be considered to be any better of after the charge-sheet has been filed against him in the Court on conclusion of the investigation than his position during the investigation of the case itself.
After referring to the earlier Judgments in O.P. Gupta v. Union of India (referred supra), where it was held that suspension of an employee was injurious to his interests and must not be continued for an unreasonably long period and, therefore, an order of suspension should not be lightly passed; to K. Sukhendar Reddy v. State of A.P (referred supra) which castigated selective suspension perpetuated indefinitely in circumstances where other persons involved had not been subjected to any scrutiny; and State of A.P. 9 (1971) 1 SCC 734 MSM,J WP_13969_2020 25 v. N. Radhakishan10 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 India (referred supra), Union of India v. R.P. Kapur (referred supra) and V.P. Girdroniya v. State of Madhya Pradesh11; as also the other judgments of the Supreme Court in Ashok Kumar Aggarwal; U.P. Rajya Krishi Utpadan Mandi v. Sanjiv Rajan12; Secretary to Government, Prohibition and Excise v. L. Srinivasan13; and Allahabad Bank v. Deepak Kumar Bhola14 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 10 (1998) 4 SCC 154 11 (1970) 1 SCC 362 12 1993 Supp (3) SCC 483 13 (1996) 3 SCC 157 14 (1997) 4 SCC 1 MSM,J WP_13969_2020 26 Andhra Pradesh in Buddana Venkata Murali Krishna v. State Of A.P.15 to which I am one of the members of the Division Bench. Therefore, applying the same principle to the present facts of the case, it is difficult to interfere with the impugned order of suspension, keeping in view of the seriousness and gravity of the misconduct contemplated to be enquired into and the material i.e., embezzlement of funds, recording of satisfaction by the State Audit Officer and the Devasthanam, while passing impugned order of suspension of the petitioner is supported by prima facie evidence. The contention of the petitioner is that, when the Assistant Executive Officer and Superintendent who were placed as incharge of the petrol bunk were also on the same footing, they were not placed under suspension for their failure to supervise the affairs, thereby, the order of suspension passed against this petitioner the impugned in the writ petition is illegal.
Whereas, the learned Standing Counsel for the second respondent contended that it is not a selective suspension and in fact, ten employees were placed under suspension, as alleged in Paragraph No. 18 of the counter affidavit. Therefore, not only this petitioner, but also ten other employees were placed under suspension in view of unearthing huge amount of misappropriation by the employees working under the control of the Devasthanam and the case was entrusted to Anti Corruption Bureau authorities to conduct detailed investigation.
15 2016 (3) ALT 727 MSM,J WP_13969_2020 27 Even otherwise, placing this petitioner under suspension cannot be said to be selective, for the reason that, he being an employee placed as incharge of the petrol bunk, his duty is to take care of the accounts and other affairs of the petrol bunk. But, the petitioner failed to take care as required to supervise the affairs of the petrol bunk including unloading, collection and remittances of amount to the Devasthanam. So far as other employees are concerned they are not direct employees under the control of the second respondent and third respondent but they are under the control of principal employer that is M/s. Srisaileswara Agencies Ltd. Therefore, failure to place the outsourcing staff under suspension cannot be said to be selective suspension of this petitioner and it amounts to discriminating this petitioner from other employees and violative of Article 14 of the Constitution of India.
No doubt, Article 14 of the Constitution of India deals with equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Concept of equality is a positive concept. Court can command the State to give equal treatment to similarly situated persons but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. Article 14 cannot be invoked for perpetuating irregularities or illegalities (vide Usha Mehta v. Government of Andhra Pradesh16). Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. (vide Bondu Ramaswamy v. Bangalore Development 16 2012 (10) SCALE 468 MSM,J WP_13969_2020 28 Authority17). A person is treated unequally only if that persons is treated worse than others, and those others (the comparison group) must be those who are "similarly situated" to the complainant. (vide Glanrock Estate (Private) limited v. State of Tamil Nadu18) Thus, equal protection is to be provided to equally placed persons and any amount of discrimination is violative of fundamental right guaranteed under Article 14 of the Constitution of India. In the present facts of the case, the petitioner is an employee who is placed as in-charge clerk of the petrol bunk being managed by the Devasthanam. He failed to devote to his duty i.e. failed to supervise the affairs of the petrol bunk. When he is placed as in-charge of the petrol bunk for a particular period, he is the person supervising the petrol bunk at the grass root level. The Assistant Executive Officer and the Superintendent are also liable for such lack of supervision, but their liability is remote, since they are not working directly in the petrol bunk. Hence, failure to place the other employees under suspension cannot be said to be invidious discrimination and selective suspension.
Learned counsel for the petitioner while contending that suspension of the petitioner is a selective one, placed reliance on the judgement of the Apex Court in K. Sukhendar Reddy v. State of Andhra Pradesh (referred supra), where the question relates to the arbitrary suspension of an IAS Officer pending investigation for many years and not resorting to such suspension in respect to other officers and it was in those circumstances held that to keep an 17 (2010) 7 SCC 129 18 (2010) 10 SCC 96 MSM,J WP_13969_2020 29 officer under suspension selectively contemplating disciplinary proceeding for indefinite period is not permissible. In Vice-Chancellor, M.D. University v. Jahan Singh19, that the benefit conferred to one person illegally cannot be claimed by other persons on the ground of equality, holding that Article 14 of the Constitution of India cannot be invoked to perpetuate illegality and Article 14 is a positive concept. In the said decision, it was held as follows:
"28. Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India carries with it a positive concept. Article 14 of the Constitution cannot be invoked, for perpetuating illegality. (See Kuldeep Singh v. Govt. of NCT of Delhi, [2006] 5 SCC 702.)"
In Tata Engineering & Locomotive Co. Ltd. v. Jitendra P. D.Singh and another20, in the context of three workmen involved in a misconduct who were found guilty, out of whom one was punished with one month suspension, other was reinstated as per the direction of the Labour Court, and the third person was singled out for dismissal from service, the Supreme Court held that the connection between misconduct and employment of workman may not be of much significance when such act has taken place within the premises of the factory and that should be decided in appropriate cases.
19
[2007] 5 SCC 77 20 [2001] 10 SCC 530 MSM,J WP_13969_2020 30 In S. Vadivel v. The State of Tamil Nadu21, the Madras High Court reiterated the principles laid down by the Supreme Court in the judgments referred supra.
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 21 W.P.No.855 of 2008 dated 17.12.2009 MSM,J WP_13969_2020 31 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) In P.N. Raikwar and others v. State of Madhya Pradesh22, 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.
Thus, 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 petitioner is not entitled to claim such relief invoking Article 14 of the Constitution of India on the ground of selective suspension. Hence, by applying the principle laid down in the above judgments, the contention of the learned counsel for the petitioner is rejected.
The other ground raised by the petitioner before this Court is that, there is absolutely no material to saddle him with any liability 22 W.P.No.10787 of 2012 & batch dated 14.03.2013 MSM,J WP_13969_2020 32 and the second respondent did not apply his mind to the material available on record.
It is evident from the material on record, that an amount of Rs.41,69,402/- of deity's amount was misappropriated from the petrol bunk being run by the temple authorities. But, the respondents having satisfied about the material based on the Audit Officer, State Audit report, concluded that there is material against this petitioner. the petitioner being the custodian of the property of the deity, is under obligation to protect the property of the deity, since deity is a perpetual minor, as held by the Apex Court in K. Arjun Das v. Commissioner of Endowments, Orissa23. Instead of protecting the interest of the deity, the petitioner indulged in such unlawful activity of misappropriation of the amount from the petrol bunk being run by the Devasthanam. But, the exact amount allegedly misappropriated by the petitioner and his role can be decided only at the end of enquiry, but not at this stage, this Court cannot venture to decide the exact liability and role played by this petitioner in the alleged misappropriation of amount.
The departmental authorities can place the government servant under suspension in the following circumstances:
(i) The real effect of the order of suspension is that employee continues to be a member of service of employer but is not permitted to work and further during the period of suspension he is paid subsistence allowance.
(ii) It would not be as an administrative routine or an automatic order to suspend an employee and not to be lightly passed. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. 23
(2019) 10 SCC 355 MSM,J WP_13969_2020 33
(iii) The suspension must be a step in aid to the ultimate result of the investigation or inquiry.
(iv) The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground, as vindictive and in misuse of power.
(v) Suspension should be made only when there is a strong prima facie case of delinquency.
(vi) Suspension is a device to keep the delinquent out of the mischief range.
The purpose is to complete the proceedings unhindered.
(vii) order of suspension can be resorted to pending further investigation or contemplated disciplinary action only on grave charges.
(viii) Competent Authority should take into consideration relevant facts and attendant circumstances as to how far and to what extent public interest would suffer if the delinquent is not placed under suspension. (vide G. Shashi Kumar v. Telangana State Road Transport Corporation24) Keeping in view the principles laid down in the above judgment, the petitioner was placed under suspension by the second respondent, having satisfied that there is material against this petitioner prima facie. There is a possibility of interference of this petitioner with further investigation being done by the Anti Corruption Bureau and the material being collected during enquiry by the department. To avoid such interference, the second respondent placed the petitioner under suspension.
Yet, another purpose in placing this petitioner under suspension is that, in case, the petitioner is allowed to render his service, despite his involvement in such huge misappropriation, it will amount to permitting the petitioner to perpetuate illegality and possibility of committing similar acts during pendency of investigation in the criminal case and enquiry in the present case, 24 W.P.No.2666 of 2017 dated 22.03.2017 MSM,J WP_13969_2020 34 cannot be ruled out, such misappropriation can never be a premium to government servant. Therefore, the petitioner was rightly placed under suspension by the second respondent and such order cannot be interfered by this Court, since this Court while exercising power under Article 226 of the Constitution of India cannot sit over an appeal against the order of a disciplinary authority. Therefore, I am not inclined to set-aside the impugned order of suspension at this stage.
The second respondent having considered the material prima facie, concluded that there is material to proceed against this petitioner to enquire into the role of this petitioner in misappropriation of Rs.41,69,402/- in total and along with this petitioner, ten other employees were placed under suspension, as per the material available on record. Therefore, the order passed by the second respondent placing this petitioner under suspension is neither selective suspension, nor without any material. Apart from that, this Court cannot enforce right to equality for negative rights, on the ground of selective suspension against this petitioner.
Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. The Seven Judge Bench of the Apex Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors25 laid down four propositions and summarized the principles of the Constitution Bench in The Custodian of Evacuee 25 (1955) 1 SCR 1104 MSM,J WP_13969_2020 35 Property Bangalore v. Khan Saheb Abdul Shukoor etc26 as under:-
"the High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque (referred supra) and the following four propositions were laid down :-
"(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
In the exercise of certiorari jurisdiction, the High Court proceeds on an assumption that a Court which has jurisdiction over a subject matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. 26
(1961) 3 SCR 855 MSM,J WP_13969_2020 36 In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors27, the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench:
"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226."
The Constitution Bench of the Apex Court in T.C. Basappa v. T. Nagappa & Anr28, held that certiorari may be and is generally granted when a Court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also be issued if the court or tribunal though competent has acted in flagrant disregard of 27 (1958) SCR 1240 28 (1955) 1 SCR 250 MSM,J WP_13969_2020 37 the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available, if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari.
Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be subjected to certiorari.
As discussed above, the jurisdiction of this Court is limited and therefore, this Court cannot interfere with such order of suspension of a government servant, more particularly, when there is prima facie material against this petitioner to place this petitioner under suspension.
In view of my foregoing discussion, I find no ground to interfere with the order impugned in the writ petition. However, it is appropriate to direct the respondents to review objectively, the suspension order in terms of G.O.Ms.No.86 General Administration (Ser.C) Department, dated 08.03.1994 and G.O.Ms.No.526 General Administration (Ser.C) Department dated 19.08.2008. If, for any reason, before completing the enquiry, if the respondents during review found that there is no need to continue MSM,J WP_13969_2020 38 this petitioner under suspension, the disciplinary authority/ respondents may pass appropriate order as expeditiously as possible, complete the enquiry in any event not later than six months from the date of receipt of copy of this order.
In the result, writ petition is dismissed. No costs. Consequently, miscellaneous petitions pending, if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 03.03.2021 SP