Andhra Pradesh High Court - Amravati
K.Mallikarjuna, vs The State Of Andhra Pradesh, on 16 October, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.12009 OF 2020
ORDER:
This writ petition under Article 226 of the Constitution of India is filed by the petitioner questioning the suspension Proceedings No.Vig.I(2)43/2020, dated 30.06.2020 issued by the second respondent, received by the petitioner on 01.07.2020, on the basis of adverse news published in Andhra Jyothi Telugu daily that the petitioner influenced officials of the fourth Respondent to issue and distribute unprocessed and non-certified Groundnut seeds to the farmers in the district as illegal, improper, unjust, arbitrary, contrary to law and without jurisdiction.
The petitioner is working as Assistant Director of Agriculture (Regular) Kalyanadurg since 20-06-2019 in Kalyanadurg division comprising of the following mandals, namely (1) Kalyanadurg (2) Kambadur (3) Settur (4) Kundurpi (5) Beluguppa and (6) Bramhasamudram without any adverse remarks.
While so, on 03-06-2020 a news Item with a caption "Aakash Ramanna company - Anantha Rythuku Buridi" has been published in Andhra Jyothi Telugu daily newspaper in the district edition, in which it was adversely commented that, one key Agricultural Department Officer of Department of Agriculture colluded with prime public representative and resorted to the unauthorized transaction of groundnut seeds being supplied by Akash Agro Tech and supplied poor quality seeds to the farmers.
2 MSMJ WP _12009_2020 Based on the adverse news published in Andhra Jyothi, the 3rd Respondent issued a Show Cause Notice to the petitioner on 05-06-2020 received on 10-062020 alleging that,
a) 4598 Qtls. of Groundnut seed was delivered to Rythu Bharosa Kendram centers to different villages and mandals in the district without quality certification of in-charge Agricultural Officers deputed to them.
b) Discrepancy in actual processed quantity and distributed quantity noticed based on the original register i.e., inward and outward D.C. Register and based on the consumption of Electricity.
The petitioner submitted his explanation on 13.06.2020 stating that the seed processing unit by name "Akash Agro Tech" is located at Gotlur village of Dharmavaram division which is not in his jurisdiction. Further, it is submitted that quality groundnut seeds have been distributed to the farmers of Kalyandurg during kharif season of 2020 and no single complaint has been received from the farmers of Kalyandurg division in this regard. Infact, news items were published in newspapers that the farmers of the Kalyandurg Rural are very much happy with the quality seeds distributed by the Department and there has been a huge demand for them. The concerned Village Agriculture Assistant/Village Horticulture Assistant / Village Sericulture Assistant at Rythu Bharosa Kendras (RBK) checked the seed in the presence of available farmers and upon being satisfied with the quality of seeds, groundnut seed received from the fourth Respondent is distributed. The concerned Mandal Agricultural Officer also randomly checked groundnut seed received and upon being satisfied only, the seeds are distributed to the formers as per the guidelines issued by the higher authorities. The petitioner is only 3 MSMJ WP _12009_2020 a supervising officer at divisional level for six mandals and he verified the quality of the seeds through random checks also.
The Joint Collector, Anantapuram has also visited the villages of Kalyandurg division of Kambadur Mandal R.B.K-4 and verified the distribution of groundnut seed and also visited some of the farmers' houses, namely, 1) T.Ramanna 2) K.Hanumantha Rayudu and expressed his satisfaction. The seed received in Manirevu, Mudenayanapalli, Thammasamudram villages of Kalyandurg Mandal, Narasapuram of Beluguppa Mandal and Cherlopalli of Settur Mandal has been rejected and the said stock sent back due to low quality of seed. An inquiry was conducted in this issue and vide Report dated 9.6.2020, the Enquiry Officer submitted his report wherein no adverse findings were recorded against the petitioner; despite it the impugned suspension proceedings were issued. It is further submitted that a clear finding was recorded by the Enquiry Officer that bags and tags for processed seed were supplied by the District Manager of the fourth respondent, despite which the petitioner was made a scapegoat in this issue instead of placing the Manager of the fourth Respondent under suspension.
The attributions made against this petitioner by the District Administration is full of malafides and that the seed was delivered by the fourth respondent after thorough check of quality and quantity and after labelling the seed bags. It is further contended that, there were no irregularities or illegalities in the distribution of quality seeds, as it is checked at different stages before distribution and only upon satisfaction, the seed was distributed to various farmers.
4 MSMJ WP _12009_2020 It is contended that, as per the instructions of the second Respondent, the fourth respondent is the Nodal Agency for Groundnut seed distribution in the state of Andhra Pradesh. The procedure for seed procurement is that the fourth Respondent as the nodal agency in the district for supply of subsidized Groundnut seed in the district has entered into an agreement with seed supplying firm i.e., M/s. AkashAgro Tech, Anantapuramu having a processing plant at D.No.453/2, Dharmavaram(M), Ananthapuramu (Dist) for supply of the required quantity and quality seed with quality parameters as per Indian Minimum Seed Certification Standards. The concerned Agriculture Officer has the primary responsibility whether concerned firm is processing/cleaning the seed or not and concerned nodal agency officer also should monitor the movement of the processed seed to the destination point from the processing unit. As per Point Nos.1, 5 and 10, in the agreement between the fourth respondent and the seed supplying firm, it is clearly indicated that the process is between the two parties and there is no chance of involvement of other third party. The clauses in the agreement are as follows:
Clause 1 - The seed supplying firm i.e., the seed processing unit shall supply the offered quantity of Machine Cleaned Groundnut K
- 6 T/L seed in their new so Kg. HDPE bags duly stenciling the matter as (specified) by the APSSDC Ltd., but the APSSDC will procure by placing supply order as per requirement on need basis and on outright purchase and also as per the seed standards mentioned in the agreement.
Clause 5 - The APSSDC Ltd., is having every right to reject the seeds if the seed is not as per the prescribed norms.
Clause 10 - The seed supplied by the tenderer shall confirm to the prescribed quality parameters and in case it is found not confirming to the quality parameters either at the processing plant or at the sale point, it will be rejected at the cost of the tenderer. The freight charges and other incidental expenses if any incurred shall be recovered from the tenderer of the concerned.
5 MSMJ WP _12009_2020 In view of the clauses referred above, the entire information of seed processing i.e., quantity of seed procured, processed, dispatch particulars at processing plant are available with the proprietors of the processing plant only and should be monitored by the fourth Respondent. This information should be made available to the concerned Assistant Director Agriculture and Mandal Agricultural Officer of Dharmavaram Mandal to monitor the activity as well to the Joint Director of Agriculture for further course of action. But such information not received from either nodal agency i.e., the fourth respondent or from Joint Director of Agriculture, Ananthapuramu to supervise the seed processing activity in Kalyanadurg. Even in the agreement between the fourth Respondent and seed supplying firm, all the responsibilities right from procurement of quality seed to dispatching of processed and packed seeds to distribution centres i.e., RBKs located in the villages lies with fourth Respondent and the seed processing firm. The personnel from Agriculture Department have no primary duty in processing and transportation of the seed to the destination points. All the activities starting from agreement, processing, transportation of clean seed to the destination point should be monitored by the fourth Respondent only and nothing lies within the purview of the department officers i.e., Assistant Director Agriculture and Mandal Agricultural Officer of Kalyanadurg Mandal.
While narrating the entire process of collection of seed from the department in terms of agreement, the petitioner raised the following specific grounds:
1. Even without any basis of material, the second respondent saddled the petitioner with liability for the alleged distribution of seed and the order of suspension impugned in the writ
6 MSMJ WP _12009_2020 petition is passed by the third respondent is bereft of any material, passed the impugned order mechanically and without application of mind, thereby, such order cannot be sustained.
2. The third respondent submitted a report to the second respondent even without appreciating the findings recorded by the third respondent in the fact findings enquiry, the second respondent placed this petitioner under suspension erroneously, which would seriously affect his carrier and violative of Article 14 of the constitution of India.
3. Placing this petitioner under suspension based on news item published in Andhra Jyothi newspaper is not based on any material and that the petitioner is not responsible for any irregularity, if any committed and therefore, the suspension order passed against the petitioner is illegal and arbitrary and requested to set-aside the same.
Respondents filed counter affidavit, denying material allegations, inter alia contending that this petitioner is Supervising and Monitoring Officer for six mandals, as admitted by him for proper distribution of seeds to the farmers in the above mandals within his jurisdiction. The respondents denied the contention of the petitioner that he was discharging his duties without any adverse remarks, while asserting that this petitioner integrity is doubtful, as the petitioner is already facing disciplinary proceedings. It is also submitted in the counter affidavit that, the factum of publication of adverse news item in Andhra Jyothi Telugu Daily newspaper.
The respondents further contended that, The District Collector & Magistrate, Ananthapuramu has concentrated only about the petitioner's intention in asking the AP Seeds to supply 10,000 tags of Groundnut seed to the Akash Agro Tech Company and the District 7 MSMJ WP _12009_2020 Administration has not gone into the quality and distribution of seed. The petitioner has intentionally requested the AP Seeds, Ananthapuramu to supply 10,000 tags of Groundnut seed to the Akash Agro Tech Company situated at Gotlur (V), Dharmavaram Mandal which is not within the petitioner's jurisdiction.
It is further contended that, the second respondent has taken a decision on the report of the District Collector, Ananhapuramu, since there are grave irregularities and has passed orders by suspending the petitioner from service. The APSSDC (Andhra Pradesh State Seed Development Corporation) is the nodal agency for Groundnut seed distribution in the State of Andhra Pradesh to the destination points. The petitioner has no jurisdiction over the seed company namely Akash Agro Tech, the petitioner has intentionally interfered, influenced the Officials of AP Seeds, Ananthapuramu to supply 10,000 tags of seed material to the above Agro Tech Company located at Gotlur (V). Dharmavaram Mandal. Thus, the interference of this petitioner for supply of 10,000 seed tags is sufficient to conclude prima facie, that the petitioner is involved in the process of procurement of seed, though he is unconcerned. The second respondent/Director of Agriculture being the appointing authority, basing on the report of third respondent, who has recommended to take appropriate action based on the allegations levelled against this petitioner, as the allegations are serious in nature, the petitioner was placed under suspension.
In the counter affidavit, the respondents denied the material allegations that, since there are no allegations reported against other reports have been received against such persons and the petitioner 8 MSMJ WP _12009_2020 has involvement of activities by telephone to AP seeds, Ananthapuramu and a written statement was submitted by Sri Md. Shamshuddin, Junior Assistant, that the petitioner has directly requested to supply 10,000 tags of Groundnut seed and placed the petitioner under suspension in accordance with the procedure only.
The third respondent has taken into consideration the report of Revenue Divisional Officer, Dharmavaram and the` explanation submitted by Md. Shamshuddin, Junior Assistant of AP Seeds, Ananthapuramu, Statement of District Manager, APSSDC, Ananthapuramu and a detailed report has been sent to the second respondent by third respondent to take appropriate action on the ground that the reasons assigned by the petitioner are illusory in nature, false and created by for the purpose of the petition. Further, all the reasons assigned in the paras (a to m) are created and cannot be taken into consideration at all.
The material collected by the third respondent, during fact finding enquiry disclosed the role played by this petitioner in supply of poor quality of seeds to the farmers directly involving in the process of procurement of seed. Further, making a phone call to the A.P. Seeds for supply of 10,000 groundnut tags and suppied poor quality of seed, thereby caused loss to the farmers of the villages of various mandals and consequently liable for action and that the impugned suspension order cannot be set-aside, in view of the limited jurisdiction conferred on this Court under Article 226 of the Constitution of India and finally prayed for dismissal of the writ petition.
9 MSMJ WP _12009_2020 During hearing, learned counsel for the petitioner and learned Government Pleader for Services reiterated the contentions urged in the respective pleadings.
Considering the rival contentions of learned counsel for the petitioner and learned Government Pleader for Services, the point that arises for consideration is as follows:
"Whether this Court can interfere with the order of suspension during pendency of disciplinary proceedings by exercising power under Article 226 of the Constitution of India. If so, whether in the present facts of the case, the suspension order be sustained?"
P O I N T:
Undisputedly, the petitioner is working as Assistant Director in Agriculture Department, having control over six mandals, as narrated above. The main allegation made against the petitioner is that, though he is unconcerned with the supply of groundnut seed in different areas, being a supervising authority, he influenced to issue 10,000 tags of groundnut seed to the supplier and accordingly, they supplied, who in-turn supplied poor quality of seed. A news item was published in Andhra Jyothi daily newspaper reporting the incident and on the basis of the same, fact finding or preliminary enquiry was ordered.
The third respondent who conducted fact finding/preliminary enquiry submitted his report on 22.06.2020 and made a recommendation to take appropriate action against this petitioner. On the basis of the report of third respondent, the petitioner was placed under suspension and issued impugned order.
10 MSMJ WP _12009_2020 Before adverting to the facts, to decide the legality/justification of the suspension order impugned in the writ petition, it is appropriate to advert to the law laid down by the Apex Court and other Courts about the scope of interference of this Court in the order of suspension.
Though, Article 226 of the Constitution of India, conferred no limited powers, such discretionary power has to be exercised within the self-imposed limitations by the Courts. If the order impugned in the writ petition is totally with malafides or arbitrary or in violation of principles of natural justice or against the statutory provisions or constitutional provisions, the Court can lightly interfere with the proceedings impugned in the writ petition, while exercising power under Article 226 of the Constitution of India. However, the Court can exercise limited jurisdiction to interfere with the suspensions orders, as suspension deprives the right of this petitioner during pendency of the disciplinary proceedings temporarily to discharge his official duties, subject to payment of subsistence allowance.
In Union of India v. Ashok Kumar Aggarwal1, the Supreme Court held that, the power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, 1 (2013) 16 SCC 147 11 MSMJ WP _12009_2020 removal or dismissal from service. The authority should also take into account all the 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. Suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc. 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 aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review. However, as the suspension order constitutes a great hardship to the person concerned as it leads to reduction in emoluments, adversely affects his prospects of promotion and also carried a stigma, an order of suspension should not be made in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account.
12 MSMJ
WP _12009_2020
In Secretary to Government and Another vs.
K.Munniappan2, Supreme Court held that, the order of suspension can be resorted to pending further investigation or contemplate disciplinary action in only grave charges. It is permissible to place an employee under suspension only for grave charges in contemplation of the disciplinary action.
In Ajay Kumar Chowdhary Vs Union Of India3 Supreme Court considered the justification for prolonged suspension, the right of employee to seek speedy trial and disposal of disciplinary proceedings and held that, Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that We will sell to no man, we will not deny or defer to any man either justice or right. In similar vein the Sixth Amendment to the Constitution of the 2 AIR 1997 SC 2559 3 (2015) 7 SCC 291 13 MSMJ WP _12009_2020 United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
Following the judgments of the Supreme Court referred above, the learned single Judge of High Court of Judicature at Telangana in M. Raghunath v. Telangana State Road Transport Corporation4 laid the following guidelines to exercise power under Article 226 of the Constitution of India to interfere with the suspension order and they are as follows:
(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;
(iii) 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; should not be vindictive and in misuse/abuse 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;4
2017 (3) ALD 364 14 MSMJ WP _12009_2020
(ix) Suspension should not be continued for long time.
Soon after suspension, charges should be drawn and served and disciplinary proceedings should be concluded as expeditiously as possible;
(x) Prolonged suspension without reasons recorded in support of the continuation under suspension is not valid.
In M. Paul Anthony v. Bharat Gold Mines Limited5 the Apex Court observed that exercise of right to suspend an employee may be justified on the facts of a particular case and in most of the cases, persons suffering from suspension syndrome are placing employees under suspension.
The real effect of suspension was explained by the Apex Court in Khem Chand v. Union of India6, wherein the Apex Court held that the employees continues to be a member of the Government service, but is not permitted to work and further during the period of suspension he is paid only some allowance, generally called subsistence allowance, which is normally less than the salary instead of the pay and allowances, he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary is "to remain alive as on food; to continue to exist".
"Subsistence" means - means of supporting life, especially a minimum livelihood.5
(1999) 3 SCC 679 6 AIR 1958 SC 300
15 MSMJ WP _12009_2020 Relying on various principles, the High Court of Madhya Pradesh in P.N. Raikwar and others v. State of Madhya Pradesh7 observed that the settled law is, when an appointed authority or the 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 when an appointed authority or the 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 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 enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry 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 enquiry etc. But as stated earlier, 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 enquiry or contemplated enquiry or investigation would be another thing if the action is by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result. The authority also in mind a public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge. 7 W.P.No.10787 of 2012 dated 14.03.2013 16 MSMJ WP _12009_2020 In U.P. Rajya Krishna Utpadan Mandi Parishad v. Sanjiv Rajan8, while dealing with the issue of suspension, the Supreme Court 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 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 8 1993 Supp (3) SCC 483
17 MSMJ WP _12009_2020 completing the 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."
Thus, in view of the law declared by the Apex Court and persuaded by the law laid down by the two different High Courts, the Court must keep in mind the guidelines laid down in the above judgments to uphold or to set-aside the order of suspension while exercising power under Article 226 of the Constitution of India.
The word 'misconduct' is defined as unacceptable or improper behaviour, especially by an employee or professional person.
According to Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964 (for short 'Conduct Rules'):
(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 18 MSMJ WP _12009_2020 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 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.] Rule 3 of the Conduct Rules requires that a Government servant shall do nothing which is unbecoming of a Government Servant. Obviously, these rules are not exhaustive with relation to the conduct of Government servants. It is the exigencies of circumstances that alone can determine as to what is becoming or unbecoming for a Government servant to do or not to do. The rules deal with the conduct of the public servant in his official life, but also in his private life. Rule 3 is a sense elliptic, in that it does not lay down a proper and a becoming standard of behaviour for public servants although it requires them to avoid impropriety or unbecomingness in behaviour. The rules are not exhaustive in relation to the code of conduct specified in these rules. There exists what is known as an "Unwritten code of conduct" which must be observed by every Government servant. The Government servants should conduct themselves not only in accordance with any specified orders of Government regulating the behaviour and conduct which may be enforced but also in accordance with any implied orders--that is to say, he must also honour the implications of the various orders of the Government taken as a whole. There is no doubt that this rule refers to the unwritten code of conduct and requires Government servants to behave like decent citizens in their private lives. Every Government 19 MSMJ WP _12009_2020 servant is expected to observe certain standards of decency and morality in his private life. For example, the State has the power to determine that no Government servant shall remarry during the life time of his first wife. It may require its officials not to drink alcoholic liquors at social functions. If Government were to sit back and permit its officials to commit any outrage in their private lives provided it falls short of a criminal offence, the result may very well be a catastrophic fall in the normal prestige of the administration. It is the duty of the servant to be loyal, diligent, faithful and obedient. The liability to respect and the recognition of a subordinate role on the part of an employee also flows form the nature of the contract. Thus disobedience, insubordination and acts subversive of discipline are the recognised misconducts because these acts are contrary to the obligations imposed on an employee by the nature of contract itself and can freely be treated as implied. Under this Rule no Government employee shall behave in a manner which is becoming of such employee or derogatory to the prestige of the Government. It possible to define the phrase "conduct unbecoming of a Government servant"
with exactitude. The said phrase has however been explained by the Madras Court in R. Srinivasan vs. Union of India9 as follows:
"What is conduct unbecoming of a Government servant has not defined or explained in the entral Civil Services (Conduct) Rules 100 According to Webster's International Dictionary, the word "unbecoming means "unsuitable", "indecorous", "improper". In the light of the ordinare dictionary meaning of the word, a conduct which is indecent, reprehensihi or abominable involving moral though not legal lapse, is conduct unbecoming of a Government servant. In the instant case, if the appellant had not paid the rent even after the bill was sent to him or claimed house rent allowance from the Government without paying the rent to the Lodge, or had done some favours by virtue of his official position and was expecting that recovery of rent may be waived by the Lodge or that his financial position was so weak that he could never have been expected to pay the rent, they may indicate a conduct unbecoming of a Government servant. An innocent indiscreet act on the part of the appellant in not paying the rent in the hope that he can pay the same as soon as the monthly rent is fixed, cannot be characterised as conduct unbecoming of a Government servant, especially when a Government servant is permitted 9 1981 (3) SLR 639 at page 646
20 MSMJ WP _12009_2020 to have credit facilities with a bonafide trader under Rule 16 of the Central Civil Services (Conduct) Rules, 1964". When there is material prima facie against the government servant, which is a grave in nature, the disciplinary authority or appointing authority can place the government servant under suspension exercising power under Rule 8(1) of The Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, (for short 'C.C.A Rules').
Rule 8 of C.C.A Rules deals with 'Suspension'. According to it:
(1) A member of a Service may be placed under suspension from service-
(a) where a disciplinary proceeding against him is contemplated or is pending, or
(b) where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State, or
(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
(d) A member of a service may be placed under suspension from service even if the offence for which he was charged does not have bearing on the discharge of his official duties.] (2)A Government servant shall be deemed to have been placed under suspension by an order of the authority competent to place him under suspension-
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty-eight hours
(b) with effect from the date of his conviction if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation : - The period of forty-eight hours referred to in clause
(b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
21 MSMJ WP _12009_2020 [(c) the order of suspension ceases to be operative as soon as the criminal proceedings, on the basis of which the Government servant was arrested and released on bail, are terminated]. (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on revision or review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal, or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a court of law and the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority which made or is deemed to have made the order or by an authority to which that authority is subordinate.
(b) Where a Government servant is suspended or is deemed to have been suspended, whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may, at any time, be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
Turning to the facts of the present case, as per the Proceedings of the Collector & District Magistrate, Anantapuram in Rc.No.B6/268/2020 dated 11.05.2020, the petitioner being the 22 MSMJ WP _12009_2020 Assistant Director of Agriculture is having overall supervision of all the sale points or RBKs under his jurisdiction. That, the petitioner being the Assistant Director of Agriculture concerned, being monitoring officer is personally held responsible for the lapses if any takes place in distribution of seed in his jurisdiction and he shall visit four distribution points in the subdivision per day and submit the report on daily basis to the higher authorities by the evening. The records of the source seed supplied of all consignments shall be verified by every Joint Director of Agriculture and submit the compliance report to the Commissionerate. The nodal agency will make necessary logistic arrangements for ensuring timely distribution of seed at village level. The Andhra Pradesh State Seed Development Corporation Limited (APSSDCL) shall ensure seed quality by pre- testing of seed for germination, moisture, purity etc before offering the seed for distribution. Any complaints received through officers or media shall be enquired immediately and necessary action to be initiated. The APSSDCL shall display a banner showing the particulars of crop wise and variety wise subsidy and non-subsidy of the seed to be distributed at distribution point and also at RBK (if both are different). APSSDCL shall make necessary arrangements for collection of the non-subsidy amount through VDAs and APSSDCL shall supply printed coupons to MAOs, as per the decision taken by the Government.
The last condition that the APSSDCL shall supply printed coupons i.e tags only after testing the quality of seed being supplied by the seed corporation. Instead of Corporation testing the quality of seed and supplying the printed coupons i.e. tags, on telephonic request of this petitioner, the corporation supplied 10,000 23 MSMJ WP _12009_2020 tags/printed coupons to Akash Agri Tech. Using those tags/printed coupons, in-turn seed was supplied to various farmers. Whether the seed is of expected quality or not is a matter to be decided by the concerned authorities, but not by this Court. Therefore, the role of this petitioner is limited, but he exceeded his powers conferred on him and procured 10,000 tags/printed coupons for supply of groundnuts to farmers which is not tested by APSSDCL in accordance with the Proceedings of the Collector & District Magistrate, Anantapuram in Rc.No.B6/268/2020 dated 11.05.2020. Finally, in the same proceedings, recommended to take action against this petitioner as per the material, more particularly, inspection report of Akash Agro Tech by Revenue Divisional Officer dated 04.06.2020, where, 4598.00 Qtls of groundnut seed was delivered to RBK centers of different villages and mandals in district without quality certification of in- charge Agricultural Officers deputed to the firm. Discrepancy in actual processed quantity and distributed quantity noticed based on the original Registers i.e. inward and outward, DC Registers and based on the consumption of Electricity.
Thus, it is clear from the material on record that there is lot of fraud in quality of groundnut seed supplied, testing, termination, moisture period etc, by the Corporation. Thus, the petitioner alone does not appear to have involved in this fraud and the enquiry report/departmental enquiry held against Akash Agri Tech disclosed several findings and they are extracted herein:
Findings:
On the basis of statements of the representative M/s. Akash Agro Tech, Gotlur, Mandal Agricultural Officer, VAA/VHA, AMC officials and farmers of the said village produced before me in this case the findings are as follows:
1. M/s. Akash Agro Tech, Gotlur processed the seed at Gotlur processing unit and some of the farmers have clean the seed at AMC, Kalyandurgam to remove the stones and plant debris
24 MSMJ WP _12009_2020 before giving the same to the firm (as per the statement giving by the firm representative).
2. The bags and tags for processed seed was supplied by the District Manager, APSSDC, Ananthapuramu.
3. After processing the groundnut seed, the processed seed has to be moved to APSSDC godowns or directly to RBKs, this process has to be monitored by District Manager, APSSDC, Ananthapuramu and same has to be informed to the Joint Director of Agriculture, Ananthapuramu.
4. The District Manager, APSSDC Ltd., Ananthapuramu has to inform regarding processing units to the concerned ADAO, MAO through the Joint Director of Agriculture, Ananthapuramu to check quality of the seed during processing and packing of the seed at processing unit level.
5. The groundnut stock was received by the concerned VAA/VHA and distributed the same with consent of the farmers after quality check.
6. Farmers also expressed their satisfaction about the quality of the seed.
7. There are no complaints from the farmers regarding quality aspects.
8. The quantity received from M/s. Akash Agro Tech, Gotlur and distributed by the VAA/VHA to the farmers was tallied. In view of this report, not only this petitioner, but also the concerned authorities including the officials of the Corporation and the other employees who supplied tags/printed coupons, enabling M/s. Akash Agro Tech to supply seed to the farmers being a nodal agency through the officials of the State without testing the germination, moisture and quality of the seed. Though the petitioner is unconcerned with the alleged distribution within the areas, the petitioner made recommendation for supply of 10,000 tags/printed coupons and made the Corporation to supply 10,000 tags/printed coupons. That itself is sufficient to conclude that this petitioner played major role for supply of poor quality of groundnut seed to the farmers through the department officials. Telephoning by this petitioner to the Corporation for supply of 10,000 tags/printed coupons without any authority is a serious misconduct, since such supply will have its serious impact on the produce after harvesting. Therefore, conduct of this petitioner is a serious misconduct, if proved, which caused loss to the Corporation.
25 MSMJ WP _12009_2020 Learned counsel for the petitioner mostly relied on the statement of one Shamshuddin, wherein he stated that the petitioner did not make any such call to the Corporation. But, such disputed fact cannot be gone into at this stage, while exercising power under Article 226 of the Constitution of India. The other material produced before this Court, including the letter issued by M/s. Akash Agri Tech on 27.05.2020 addressed to the District Manager, APSSDCL requesting to supply 10,000 tags/printed coupons shows that the nodal agency itself made such request. But, this petitioner allegedly requested the Corporation to supply 10,000 tags of groundnut seeds to M/s. Akash Agri Tech. When the company is dealing with the Corporation, this petitioner, who is only a supervising authority is unconcerned with the seed supply of tags. Apart from that, the report of Revenue Divisional Officer dated 06.06.2020 filed along with this petition would show that the groundnut seed supplied to the farmers in different villagers from the unit of M/s. Akash Agri Tech is suspected as poor quality without certification.
In any view of the matter, the material on record would show that this petitioner made recommendation for supply of 10,000 tags of groundnut seed, though he is unconcerned with the supply of such tags to the nodal agency. Hence, there is prima facie material to conclude that this petitioner misconducted himself as defined under Rule 3 of the Rules.
Sri K. G. Krishna Murthy, learned Senior Counsel for the petitioner while contending that, when there is no substantive material to place this petitioner under suspension, the order is liable to be set-aside and placed reliance on the judgment of the Apex Court 26 MSMJ WP _12009_2020 in L.K. Verma v. H.M.T Limited and others10, wherein the Apex Court held that it is well settled that, availability of an alternative forum for redressal of grievances itself may not be sufficient to come to a conclusion that the power of judicial review vested in the High Court is not to be exercised. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar.
The question in the above judgment is that, when an alternate remedy is available, he cannot approach the High Court under Article 226 of the Constitution of India of India directly. But, that is not the question now before this Court.
Learned counsel for the petitioner also placed reliance on unreported Division Bench judgment of this Court in D.T.V. Ramana v. The Commissioner of Commercial Taxes, Government of Andhra Pradesh11, wherein the Court observed that, each case has to be decided on its own merits. It is not necessary for us to consider whether Rule 33 is mandatory or directory. It is beyond the pale of controversy that the disciplinary authority or the notified competent 10 AIR 2006 SC 975 11 W.P.No.514 of 2004 dated 16.02.2004 27 MSMJ WP _12009_2020 authority is vested with the power of suspension under Rule 8. There is a marked difference between sub-Rule (1) and (2) which are extracted below:
"Suspension:
(1) A member of a Service may be placed under suspension from service-
a. Where a disciplinary proceeding against him is contemplated or is pending, or b. Where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the Sate, or c. Where a case against him in respect of any criminal offence is under investigation, inquiry or trial d. A member of a service may be placed under suspension from service even if the offence for which he was charged does not have bearing on the discharge of his official duties.
(2) A Government servant shall be deemed to have been placed under suspension by an order of the authority competent to place him under suspension -
a. With effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty-eight hours; b. With effect from the date of his conviction if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. c. The order of suspension ceases to be operative as soon as the criminal proceedings, on the basis of which the Government servant was arrested and released on bail, are terminated.
It is to be noted from the above that the word used is 'may' and hence sub-Rule (1) is not mandatory and it is left to the discretion of the competent authority. But under sub- Rule (2) statutory legal fiction is created leaving no room for the authority except to treat the employee as having been placed under suspension - and/or deemed to have been placed under suspension. The authority has no option except to succumb to the provision contained in sub-Rule (2).
10. But when we consider sub-Rule (1) it is incumbent on the authority to consider whether to place the employee under suspension or whether the suspension is warranted keeping in view the fact of each case. It is not a rule of thumb that whenever disciplinary proceedings are contemplated or circumstances existed as set out in clauses (a), (b) and 9c) of sub-Rule (1) the employee shall automatically be placed under suspension. Hence wide discretion is vested with the authority either to place an employee under suspension or not. The discretion has to be exercised fairly, reasonably and in accordance with law.
28 MSMJ WP _12009_2020 Failing which the action is fraught with arbitrariness attracting the wrath of Article 14 of the Constitution"
Taking advantage of the principle laid down in the above judgment, when such discretion is vested on the authorities to place the government servant under suspension, exercise of jurisdiction under Rule 8 and placing this petitioner under suspension is an illegality. But, there is no dispute regarding the law declared by the Division Bench of this Court, since the word 'may' is used, it is left to the discretion of the competent authority/appointing authority to take decision depending upon the grave misconduct, placing this petitioner under suspension, is justifiable.
Learned counsel for the petitioner placed on record another judgment of this Court in Deep Industries v. Oil and Natural Gas Corporation Limited and others12.
There is no quarrel about the law declared by various Courts including Supreme Court and this Court. But, while placing a government employee under suspension, the authorities have to look into the gravity of the misconduct, seriousness and its impact on the public at large. Here, in this case, on account of distribution of 10,000 tags of sub-standard groundnut seed, atleast not less than 10,000 farmers will be put to loss due to failure of the crop. Therefore, though the role played by the petitioner is simple, its ensuing consequences are serious. Hence, taking into consideration of the facts and circumstances of the case, the appointing authority placed this petitioner under suspension. There are certain disputed questions of facts raised before this Court. But, this Court cannot 12 2020 (2) ALD 220
29 MSMJ WP _12009_2020 decide such disputed question of facts while exercising power under Article 226 of the Constitution of India.
While excluding the disputed question of facts, taking into consideration of the gravity of the misconduct and consequences of such misconduct, in view of the limited jurisdiction of this Court, while exercising power under Article 226 of the Constitution of India interfering with the suspension order, as termed by the various Courts in the judgments referred above, I find no ground to interfere with the impugned order. However, the appointing authority/enquiry officer is directed to complete enquiry within six months, as mandated by the circulars issued by the Government from time to time, more particularly, when the government servant is placed under suspension, take appropriate action against all concerned officials, including the officials of APSSDCL and the persons who issued the tags on the recommendation made by this petitioner, if sufficient material is found against them, to conclude prima facie that they are guilty of misconduct as defined under Rule 3 of the Conduct Rules.
In the result, writ petition is dismissed, with a direction to complete the enquiry within six months from the date of this order.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:16.10.2020 SP