Andhra HC (Pre-Telangana)
Ch. Sri Lakshmi vs Executive Officer, Sri Durga ... on 3 July, 2002
Equivalent citations: 2002(4)ALD761, 2002(4)ALT553, (2002)IIILLJ1008AP
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Dr. AR. Lakshmanan, C.J.
1. The appellant/petitioner, who was working as an Attender, was kept under suspension by an order dated 22-1-2001 by the Executive Officer of the Sri Durga Malleswara Swamy Varia Devasthanam, Vijayawada. Certain charges were framed against her in the departmental proceedings stating that the appellant had stolen certain articles and that the stock register was not maintained properly and therefore she was placed under suspension temporarily from 22-1-2001. The appellant was directed to submit her explanation against the charges within fifteen days from the date of receipt of the said letter. She was also directed to return the stocks available with her to one Kum. D. Naga Kumari, temple Attender.
2. The writ petition was filed by the appellant to direct the respondents therein to reinstate the appellant into service as an Attender by declaring the proceedings dated 22-1-2001 as illegal and ultra vires the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short "the Act") and to supply the Photostat copies of the documents as requested by the appellant in her representation dated 27-1-2001. A further prayer was made to direct the respondents to stay the departmental enquiry till the conclusion of C.C. No. 601 of 2001 on the file of the Court of II Metropolitan Magistrate, Vijayawada. It was also prayed to declare the action of the respondents as illegal and ultra vires the provisions of Articles 14 and 21 of the Constitution of India and also the mandatory provisions of the Act and the rules framed thereunder.
3. We have perused the charges framed against the appellant. According to the learned Counsel for the appellant, the charges framed against the appellant in the departmental proceedings and the charge-sheet filed before the competent criminal Court are one and the same and therefore the Devasthanam cannot proceed with the enquiry basing on the same charges arising out of the same incident. A detailed counter-affidavit was filed by the respondents denying the allegations. The learned single Judge after following the decision report in V. Srinivas v. Superintendent of Police, Medak, , held that pending criminal trial is not a bar to proceed with the departmental enquiry, unless it is established by the charged official that the same will cause prejudice to him and he was forced to disclose evidence on findings before the enquiry officer.
4. We have gone through the records placed before us. The charge against the appellant is about misappropriation of funds towards the value of the goods entrusted to her which were missing, whereas the charge before the criminal Court is about missing of the articles and the persons responsible for the theft have to be investigated by the police. Therefore, in our opinion, the charges are not identical. In view of the same, the learned single Judge dismissed the writ petition. Aggrieved by the said order, the present writ appeal has been filed by the unsuccessful writ petitioner.
5. Sri V.S.R. Anjaneyulu, learned Counsel for the appellant, repeated the same contentions raised and argued before the learned single Judge. We are unable to countenance the submission made by the learned Counsel for the appellant on the first point, viz., that the departmental proceedings should be stayed pending criminal trial.
6. Sri Anjaneyulu further submitted that the suspension order has to be revoked since the suspension order was passed on 22-1-2001 was valid only for a period of six months and that under Rule 6 (1) of the Office Holders and Servants Punishment Rules, 1987 (for short "the Rules") six months period expired by 27-1-2001 and as such any further continuation of the suspension period is contrary to statutory rules and as such the appellant is liable for reinstatement. We have perused Rule 6 of the Rules, which is reproduced herein:
"(1) An office-holder or servant attached to a charitable or religious institution or endowment may be ordered to be under suspension from office or service by the trustee, the Executive Officer, the Assistant Commissioner, the Deputy Commissioner or the Regional Joint Commissioner or the Additional Commissioner or the Commissioner, as the case may be pending investigation or enquiry into grave charges where such suspension is necessary in public interest:
Provided that where the investigation has not been completed and the action proposed to be taken in regard to him has not been completed within a period of six months from the date of suspension, the fact shall be reported to the Government, the Commissioner, Regional Joint Commissioner, Deputy Commissioner or Assistant Commissioner, as the case may be for orders. The period of suspension shall not, however, exceed six months without the previous orders of the Government in case of suspension ordered by the Commissioner or the Additional Commissioner and of the Commissioner in other cases:
Provided further that during the period of suspension he shall be paid, subsistence allowance in accordance with the rules in Chapter-VIII of the Fundamental Rules and Subsidiary Rules of the Andhra Pradesh Government.
(2) An Office-holder or servant attached to a charitable or religious institution or endowment who is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention by an order of the authority competent to impose the suspension and shall remain under suspension until further orders by such authority.
(3) Any order of suspension made or deemed to have been made under this rule may, at any time, be revoked by the authority by which such order was made or deemed to have been made, or by any authority to which that authority is subordinate."
7. The first proviso to Rule 6(1) of the Rules provides that where the investigation has not been completed and the action proposed to be taken in regard to an employee has not been completed within a period of six months from the date of suspension the fact shall be reported to the Government, the Commissioner, the Regional Joint Commissioner, Deputy Commissioner or the Assistant Commissioner, as the case may be, for orders and that the period of suspension shall not, however, exceed six months without the previous orders of the Government in case the suspension is ordered by the Commissioner or Additional Commissioner and of the Commissioner in other cases. In the instant case, the appellant was suspended on 22-1-2001 in public interest. Six months' period expired by 22-7-2001. Learned Counsel for the respondents is not in a position to apprise this Court as to whether the department has obtained previous orders from the competent authority as mentioned in Rule 6(1) of the Rules and got the suspension extended beyond the period of six months. Learned Counsel for the respondents, however, argued that since this Court granted status quo order on 5-10-2001, the department could not do anything in compliance with the proviso to Rule 6 (1) of the Rules. We are unable to countenance the said submission. The writ petition was filed by the appellant only on 5-10-2001 i.e., after expiry of six months as provided under Rule 6 of the Rules. Status quo order was passed by this Court on 5-10-2001 and the same was extended for a period of two weeks on 19-10-2001 and thereafter the same was not extended. In view of the same, we are of the opinion that there is no bar for the respondents to proceed with the enquiry into the charges levelled against the appellant or to obtain orders from the competent authority extending the period of suspension. The department, in our view, has miserably failed to obtain orders within the time stipulated in Rule 6 of the Rules. Therefore, in our opinion, the temple employee cannot be kept under suspension indefinitely for ever. We, therefore, have no hesitation in revoking the order of suspension and restore the appellant to duty with immediate effect.
8. Learned Counsel for the appellant further submitted that though the department was requested to furnish certain copies of the documents, which are vital for her defence, they have not been furnished inspite of a letter sent by registered post to the Executive Engineer and the Executive Officer of the Sri Durga Malleswara Swamy Varia Devasthanam, Vijayawada. Since the charges relate to alleged misappropriation of the funds of Devasthanam, the appellant is entitled to get the copies of the documents/records which are vital for her defence. Therefore, we direct the management of the Devasthanam to furnish xerox copies of the documents required by the appellant after considering the relevancy of those documents for the purpose of enquiry.
9. The writ appeal is allowed in part. The order of the learned single Judge is modified only to the above extent. Since the enquiry is pending from January, 2001, we direct the enquiry officer to conduct and complete the enquiry within three months from the date of receipt of a copy of this order or on production of the same by the appellant, whichever is earlier.