Andhra Pradesh High Court - Amravati
The State Of Ap vs S.Peraiah on 23 September, 2021
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami, Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No.449 of 2021
(Through video conferencing)
The State of Andhra Pradesh
Rep., by its Principal Secretary,
School Education Department,
Secretariat, Velagapudi,
Guntur District and others.
...Appellants
Versus
S. Peraiah, S/o Late Venkaiah,
Aged 43 years, Occ: Senior Assistant
Under suspension, O/o District Educational Officer,
H.No.81745, Medarametla, Korisepadu M,
Prakasam District.
...Respondent
Counsel for the appellants : GP for Services III
Counsel for the respondent : Mr. Poodattu Amarender
Date of hearing : 13.09.2021
Date of Judgment : 23.09.2021
JUDGMENT
(per Arup Kumar Goswami, CJ) Heard Mr. K. Bheema Rao, learned Government Pleader for Services III appearing for the appellants. Also heard Mr. Poodattu Amarender, learned counsel appearing for the respondent/writ petitioner.
2. This writ appeal is directed against the judgment and order dated 21.07.2020 passed by the learned single Judge in W.P.No.7647 of 2020.
HCJ & NJS,J 2 WA No.449 of 2021
3. The writ petition was filed praying for a writ of Mandamus to direct the respondents (hereinafter referred to as 'appellants') to enhance the subsistence allowance at the rate of 75% of pay from 28.04.2019 onwards in terms of Fundamental Rule 53, to release the arrears and to continue to pay the same at that rate.
4. The case of the writ petitioner is that he was appointed as Junior Assistant on 11.01.1999 in the office of the Deputy Educational Officer, Purchur and was promoted as Senior Assistant in the year 2013. While he was working as such, he was sent to judicial custody for more than 48 hours in connection with CR.No.01/RCT-OGL/2019 on the allegation that he had demanded bribe amount of Rs.60,000/- from the complainant for processing the file pertaining to St.Arnold's English Medium High School, Medaramettla for opening of additional sections to classes 1 to V in the said school, for which the complainant was the correspondent, and for handing over the order of the District Education Officer (DEO) according permission to open additional sections to classes 1 to V to the complainant.
5. Since the petitioner was in judicial custody for more than 48 hours, the DEO, Prakasam District, Ongole, in exercise of powers conferred by Sub-rule (2) (a) of Rule (8) of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, 'Rules of 1991'), vide proceedings dated 30.01.2019, placed him under suspension indicating that he shall continue to remain under suspension until the conclusion of the disciplinary proceedings relating to the charges.
6. The learned single Judge disposed of the writ petition observing as follows:
HCJ & NJS,J 3 WA No.449 of 2021 "2. Heard the counsel for the petitioner and the Government Pleader for Education appearing for the respondents 1 to 3.
3. The counsel for the petitioner at the outset submits that in similar matter, this Court by virtue of the orders in Writ Petition No.15212 of 2019 has directed the respondents therein to pay 75% of wages as subsistence to the petitioner. The order reflects that this Court took into consideration the orders passed in Writ Petition No.15212 of 2019, dated 30-09-2019, wherein a similar direction was made to the respondents.
There is no dispute by the Government Pleader that this order covers the facts of the present case also.
4. Hence, in terms of the said order, there shall be a direction to the respondents to pay 75% of wages as subsistence to the petitioner with effect from 28-04-2019.
5. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs."
7. Mr. K. Bheema Rao, learned Government Pleader for Services III appearing for the appellants, submits that in view of Fundamental Rule 53 (1)(ii)(a)(iv), the petitioner is not eligible for subsistence allowance to the tune of 75%. It is submitted that without any discussion as to whether the order in W.P.No.15212 of 2019 applies to the facts of the present HCJ & NJS,J 4 WA No.449 of 2021 case, the learned single Judge proceeded to issue a direction in terms of the order dated 30.09.2019 in W.P.No.15212 of 2019.
8. Mr. P. Amarender, learned counsel for the respondent/writ petitioner, submits that vide G.O.Rt.1846 General Administration (SC.D) Department, dated 23.08.2018, as available at page No.33 of the material papers, the Government had enhanced the subsistence allowance of one Karanam Venkata Ranga Sai Kumar, Joint Secretary, from 50% to 75%, though he was under judicial custody exceeding 48 hours in a disproportionate assets case in Cr.No.05/RCA-CIU-ACB/2017 registered under sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988. It is submitted that the counsel for the appellants had agreed that the order dated 30.09.2019 in W.P.No.15212 of 2019 covers the issue involved in the present writ petition and accordingly, Mr. Amarender submits that no case is made out for interference with the aforesaid order and the appeal is liable to be dismissed.
9. We have considered the submissions of the learned counsel for the parties and perused the materials on record.
10. Perusal of the materials on record would go to show that after the judgment dated 21.07.2020, without prejudice to the criminal/disciplinary proceedings pending against him, in exercise of powers conferred by clause (c) of Sub-Rule (5) of Rule 8 of the Rules of 1991, the suspension of the petitioner was revoked and he was reinstated in service subject to the condition that he would be transferred to any vacant non-focal post at a distant place.
HCJ & NJS,J 5 WA No.449 of 2021
11. At this stage, it is appropriate to extract relevant portion of Fundamental Rule 53:
Fundamental Rule 53. (1) A Government Servant under suspension (or deemed to have been placed under suspension) by an order of the appointing authority shall be entitled to the following payments, namely:
(i) x x x
(ii) In the case of any other Government servant:-
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary:
Provided that where the period of suspension exceeds (three months), the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:
(i) The amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 percent of the subsistence HCJ & NJS,J 6 WA No.449 of 2021 allowance admissible during the period of first three months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant;
(ii) x x x
(iii) x x x
(iv) the amount of subsistence allowance shall be restricted to 50% in all cases where a prima-facie case is established on charges of corruption, misappropriation and demand or acceptance of illegal gratification until finalisation of the disciplinary case.
12. The writ petitioner had submitted a representation dated 16.09.2019 for enhancement of subsistence allowance from 50% to 75% in terms of FR 53(1)(ii)(a)(i) with effect from 28.04.2019 i.e., from the date of completion of three months of suspension.
13. The argument of Mr. Bheema Rao is that in view of FR. 53(1)(ii)(a)(iv), the amount of subsistence allowance is to be restricted to 50% in all cases where a prima facie case is established on charges of corruption, misappropriation and demand or acceptance of illegal gratification until finalisation of the disciplinary case.
14. Mere suspension of an employee does not mean that a prima facie case is established on charges of corruption, misappropriation and demand or acceptance of illegal gratification. A disciplinary proceeding is HCJ & NJS,J 7 WA No.449 of 2021 initiated with the issuance of a charge sheet. No material has been placed on record to indicate that any charge sheet has been submitted against the petitioner. In the absence of the same, when a disciplinary proceeding has not even been initiated, by no stretch of imagination can it be said that a prima facie case was established against the petitioner on the charge of corruption, misappropriation and demand or acceptance of illegal gratification. The argument advanced by Mr. Bheema Rao is wholly misconceived.
15. In view of the above discussion, we find no good ground to interfere with the order under appeal.
16. Accordingly, the Writ Appeal is dismissed. No costs. All pending miscellaneous applications shall stand dismissed. ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J Nn