HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WP.No.2484 of 2021
O R D E R:
This writ petition is filed questioning the order of suspension dated 06.10.2020 suspending the petitioner from service as Assistant Director of Fisheries, Fisheries Department.
This Court has heard Sri P.Gangainaidu, Learned Senior Counsel appearing for the petitioner and the Government Pleader for Services-I appearing for the respondents.
Learned senior counsel appearing for the petitioner submits that the petitioner was working in the Fisheries Department and was posted as the Assistant Director. He was sent on deputation to another Office in June, 2019. Because of certain personal reasons, he submitted an explanation to re-post him at Kadapa. After getting clarifications and no objection, the second respondent recommended the case of the petitioner for repatriation to his parent department and his native District. Thereafter, on 26.08.2020, an order was passed repatriating him to his parent department and native District. The petitioner reported in the 2 respondents' office on 27.08.2020. These nd facts are not in doubt. Thereafter, learned counsel for the petitioner argued that the petitioner gave a letter seeking 2 leave and went on extending the same by a series of letters which are filed. Learned senior counsel submits that on the ground that the petitioner proceeded on leave without prior permission and did not attend the work, he was placed under suspension. Learned senior counsel draws the attention of the Court to the suspension order dated 06.10.2020, and the same refers to the leave applications dated 28.08.2020, 03.09.2020, 07.09.2020 and 22.09.2020. Learned senior counsel submits that when these leave applications were duly submitted, the failure to consider the same is on the respondents and passing an order of suspension is not called for. He points out that the alleged offence is neither grave nor serious. He also argues with some force that a suspension order cannot be passed for the mere asking and as a matter of routine. He also relies upon articles of charge which are served on the petitioner. He points out that it merely says that the petitioner left without a letter and proceeded on leave for months together without the prior approval of the concerned authority. The Annexures to the charge sheet are a letter dated 25.08.2020, and the leave letters of the petitioner. Annexure-3 of the charge memo shows that no oral evidence is proposed to be introduced and there are no witnesses to be examined. Hence he raises an issue of the very need for suspension. Learned senior counsel therefore submits that although the jurisdiction of the Court is limited in cases of suspension, it is not totally prohibited. 3 He argues that if the suspension is for 'extraneous' reasons and is an arbitrary action, the Court must and should interfere since suspension for a long period, according to the learned senior counsel, is also a punishment in one way. He relies upon four judgments which are filed with separate memo which are as follows:
1. O.P.Gupta v. Union of India1
2. State of Orissa v. Bimal Kumar Mohanty 2
3. Union of India v. Ashok Kumar Aggarwal3 And
4. P.Rajender V. Union of India4 Learned senior counsel argues that in cases involving grave misconduct and cases where likelihood of the tampering with the evidence etc., arises, there may be a need and a necessity to place an Officer under suspension, but in the case on hand, he points out that a reading of the charge sheet shows that there is (a) no oral evidence (b) the documents necessary are already with the respondents. In these circumstances, learned senior counsel argues that there is absolutely no need to keep the petitioner under suspension. Relying upon para 15 of O.P.Gupta's case (1 supra) para 11 1 AIR 1987 SC 2257 2 1994 (4) SCC 126 3 2014 (16) SCC 147 4 2001 (5) ALD 290 4 of Bimal Kumar Mohanty's case (2 supra), para 14 of Ashok Kumar Aggarwal's case (3 supra) and para 8 of P.Rajender's case (4 supra), learned senior counsel argues that the Court should on a case to case basis examine the issues involved in the case, consider the gravity of the offence alleged, whether the delinquent has an opportunity to scuttle the enquiry/investigation, where he is likely win over witnesses etc., etc as the factors which would justify suspension. He also submits that the suspension must be a step in aid of the enquiry.
In the present case, learned senior counsel points out that in the counter affidavit that is filed various other factors are highlighted by the respondents for suspending the employee. Therefore, it is argued that the entire action is mala fide and not correct. He also submits that the respondents cannot rely upon factors which are not mentioned in the original memos issued to the petitioner.
Learned Government Pleader for Services-I argues that the petitioner being a Gazetted Officer did not display the conduct that is necessary as a Gazette Officer. He has left the Office and also headquarters without leave or permission. He has also failed to discharge his official duties or attend various meetings which were convened. Therefore, learned Government Pleader argues that the petitioner exhibited lack of integrity, devotion to duty and his conduct unbecoming of a Government servant. He relies upon Rules 3 (1) (2) of 5 A.P.Civil Services (Conduct) Rules, 1964. Learned counsel also argues that as per the A.P.Leave Rules and FR 67, leave cannot be claimed as a matter of right and that prior approval must be taken. He argues that the petitioner cannot abstain from duties. He points out that the reasons for suspension are detailed in the counter affidavit filed in para 8 to support paras 9 (5). Therefore, learned Government Pleader justifies the suspension. He also relies upon Ashok Kumar Aggarwal's case (3 supra) and Division Bench judgment of the High Court of A.P. in Buddana Venkata Murali Krishna v. State of A.P. and Ors. 5. On the basis of this, it is argued that the Court should lightly interfere in these matters and that the suspension etc., are matters which are within the exclusive domain of the respondent employer.
In rejoinder, learned senior counsel again points out that the issues that are raised during the course of the hearing by the Government Pleader as justifications for suspension are not the original issues for which the petitioner was suspended. He points out that these are the new grounds urged to justify the action. Learned senior counsel submits that as per the settled law on the subject, including the Constitution Bench of Mohinder Singh Gill and Ors. v. The Chief Election Commissioner, New Delhi 5 2015 (6) ALD 694 6 and Ors.6, it was held that the Court should only consider the factors and the issues that are raised in the original order of suspension, but a later explanation of the same cannot be the ground to justify the suspension.
COURT: This Court after examining the facts and circumstances notices that the charge against the petitioner is a simple charge of staying away from duties without obtaining prior permission from the superiors or waiting to see if his leave has been sanctioned.
In the articles of charge which are served on the petitioner, it is clearly mentioned that he has simply put a letter and proceeded on leave for months together. He has not taken the prior approval of the competent authority. List of documents which are mentioned are the letter of the CADA dated 25.08.2020 and the leave letters of the petitioner. (Annexure-2 of the charge memo). Annexure-3 which deals with the list of witnesses is marked NIL. Therefore, it is clear that the respondents are not proposing to examine any witnesses to prove the case.
The law on the subject which is sufficiently clear and well settled need not be reiterated. The purpose of suspension is to facilitate the smooth enquiry and to prevent any tampering with the evidence, influencing witnesses or other conduct of a similar nature. As per the judgments of 6 (1978) 1 SCC 405 7 the Hon'ble Supreme Court of India, each case has to be decided on its own merits and the nature of the allegations, the gravity of the situation and the need to ensure that the enquiry proceeds smoothly without any hindrance etc must be seen.
If the present case is examined against the backdrop of this case law, it is clear that none of these eventualities are likely to occur. There is no oral evidence proposed to be introduced. The essential documents sought to be relied upon are the letters given by the petitioner himself which are referred to almost in the entire correspondence. There is no allegation that the petitioner is likely to influence a witness or has tried to impede the process of the enquiry.
Apart from this, the reasons given in the counter affidavit for justifying the suspension are mentioned paras 8 to 10 of the counter affidavit. Only para 8(a) 8 (c) talks of the petitioner proceeding on leave without prior permission. The rest are not actually the reasons mentioned in the notice issued to the petitioner or in the charge sheet. As rightly pointed out by the learned senior counsel, subsequent events/explanations and versions cannot be used to justify the action taken to suspend the petitioner. The law on the subject is also clear. These reasons are not the reasons mentioned in the original order of suspension which is impugned.
8
In addition, this Court also notices that the State Government itself has issued orders providing for a periodical review of suspension orders. Reiterating the need and necessity for extension of the order, there should be a periodic review conducted of the suspension. In the case on hand, the suspension order is dated 06.10.2020 and has not been reviewed so far.
In conclusion, this Court finds (a) that in the facts and circumstances of the case and considering the allegations against the petitioner, there is no need or necessity to keep him under suspension. (b) the justifications given for the suspension order in the counter affidavit and during the course of the hearing show that the State is attempting to press into service other reasons which are not borne out by the record for the purpose of justifying the suspension. This is both impermissible and arbitrary.
Therefore, for both these reasons, the writ petition is allowed. The impugned order is set aside.
It is however made clear that the enquiry should be proceeded with and disposed of in a time bound manner. Both the parties are directed to ensure that the enquiry is completed in time.
Lastly, it is made clear that this order will not come in the way of respondents in finalizing the departmental enquiry. Any opinion expressed in this writ petition is only 9 for this order and is not a pronouncement on the merits of the matter.
With these observations, the writ petition is allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
____________________________ D.V.S.S.SOMAYAJULU, J Date: 16.08.2021 KLP