Dasari Venkateswara Rao vs State Of Andhra Pradesh
2021 Latest Caselaw 3009 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

                    WP.No.17283 of 2020

O R D E R:

This writ petition is filed by the petitioner questioning

the order of suspension dated 16.09.2020.

This Court has heard Sri P.Durga Prasad and learned

Government Pleader for Services-II appearing for the main

answering respondents.

Sri P.Durga Prasad, learned counsel points out that the

petitioner was working as Panchayat Secretary in

Lalacheruvu, Rajanagaram Mandal from September, 2015 till

17.07.2019. The impugned proceedings dated 16.09.2020

were issued suspending him from service on the ground that

he had misappropriated house tax and private tap fee

collection amounts to a tune of Rs.57.27 lakhs in

Lalacheruvu when he was posted there. Initially, proceedings

dated 07.09.2020 were issued in which the District Collector

had signed the suspension order. The petitioner challenged

the same in a writ petition. Learned counsel submits that

realizing a legal mistake, the fresh impugned proceedings was

issued by the Commissioner for Panchayat Raj. It is his

contention that the alleged failure to collect the money and/or

misappropriating the same took place long prior to his

transfer on 17.07.2009. In view of the fact that the petitioner

is no longer working in the same area namely Lalacheruvu,

he argues that there is no need or necessity to keep him

under suspension. Apart from that, it is submitted that there

is no independent application of the mind before the order of

suspension was passed and by relying on an order of District

Collector dated 07.09.2020, the impugned proceedings were

issued. Lastly, relying on paras 8 and 9 of the writ affidavit,

the learned counsel raised the point that as the petitioner is

not posted at the place whether the alleged misappropriation

took place and is not the custodian of the records, the

question of his tampering the records, tampering with the

case etc., will not arise. Therefore, learned counsel argues

that the order is incorrect and deserves to be set aside.

Learned counsel also filed a memo along with five reported

cases and argued on the basis of the five cases that the Court

can interfere in case of suspension also.

In reply to this, learned Government Pleader for Services

argues that the Court has limited jurisdiction to interfere in

cases of suspension pending enquiry. He pointed out that the

amounts collected for house tax and private tap fee from the

house owners of the Grampanchayat were not remitted to the

account of Grampanchayat thereby causing the loss. It is

pointed out that only after a detailed enquiry was conducted,

the action was taken. It is also mentioned in the counter that

there is dereliction of duty as the petitioner entrusted the job

to subordinate staff, contract staff and had failed to remit the

amounts by defining on daily basis.

Learned Government Pleader also argued that there is

no infringement of the fundamental right of the petitioner nor

is there any infringement of rules of natural justice. He

argues that after the Extension Officer conducted enquiry, a

show cause was also issued to the petitioner. Lastly, he

submits that as per Rule 34 of the CCA Rules, there is an

effective alternative remedy of filing an appeal. Therefore, he

submits in conclusion that as there is no arbitrary exercise of

power and as there is an effective alternative remedy, this

Court should not interfere at the stage of the show cause

notice.

This Court after considering the submissions, the

evidence on record and the pleadings notices that the law on

the subject is not in doubt. Suspension per se is not a

punishment. The power to suspend a Government servant in

a State service is available under Rule 8 of the CCA Rules.

This is not in dispute. However, it is also clear that as per the

settled law, the suspension cannot be for an indefinite

period. The State Government itself has issued G.Os

directing the review of suspension to every six months. Apart

from that, the law is also settled that the purpose of the

suspension is as follows: (a) to deliver a message to a that

the irresponsible conduct etc., will not be allowed (b) to

prevent the suspended employee from interfering with the

progress of the inquiry, influencing the witnesses etc and to

ensure that the inquiry is completed smoothly (c) orders of

suspension cannot be mechanically passed and there must be

application of mind.

If the records of this case are examined, it is clear that

although the suspension was issued on 16.09.2020, till date,

the departmental proceedings are not initiated. One year has

passed. The petitioner has also come before this Court with a

specific ground as mentioned in the writ affidavit that the

alleged misappropriation and failure to supervise took place

in Lalacheruvu Grampanchayat. Admittedly, the petitioner

has left this post on transfer in July, 2019 itself. In paras 7

and 8 of his writ affidavit, the petitioner has specifically

stated that he is not the custodian of the records, nor is he at

the same place where the alleged misappropriation took

place. He also states clearly that there cannot be any

tampering of records or evidence, since he is working

elsewhere. In the counter affidavit that is filed, these issues

are not at all answered. Normally, suspension pending

enquiry is justified on such grounds of likelihood of the

witness tampering the evidence, influencing the witnesses etc.

In the case on hand, the available record does not disclose

that such an opinion has been formed by the respondents or

is very likely to happen. The petitioner admittedly is not

working in the same place and the suspension order is issued

long after he is transferred.

The counter affidavit filed shows that the Extension

Officer has conducted an enquiry from February, 2020 itself.

Ultimately, it appears that in July, 2020, he had submitted a

report. Portions of that report are reproduced in the counter

affidavit. The show cause given to the petitioner has also

resulted in an explanation. At this stage itself, the amounts

said to have been expended by the petitioner are also

deducted before the final demand is made. Therefore, it is

clear that the respondents are in possession of a certain

amount of data to base their case. Therefore it is also not a

case of suspension in order to complete the investigation or to

facilitate the ascertainment of facts etc.

In the reply affidavit, the petitioner has also brought

certain additional facts to the notice of this Court. He also

filed certain documents. Re-enquiry has been ordered by the

Commissioner of Panchayat Raj into the alleged

misappropriation. This is borne out by the proceedings dated

09.03.2020. On 10.03.2020, for this new preliminary re-

enquiry, the petitioner was invited to attend. The petitioner

also submitted a written reply or a note to this preliminary

enquiry. As mentioned in the reply affidavit, the District

Collector has yet not come to a firm conclusion in this re-

enquiry and the District Panchayat Officer has also not

submitted a report. This is a subsequent event that is

brought to the courts notice.

In the case of Ajay Kumar Choudary v. Union of

India1, the Hon'ble Supreme Court noted that an extended

suspension can cause trauma. There is a Division Bench

judgment of this Court in WP.No.8185 of 2020, but to the

knowledge of this Court, the same is now under challenge

before the Hon'ble Supreme Court. The same is not being

looked into for now. In State of Tamilnadu v. Pramod

Kumar IPS2, the Hon'ble Supreme Court of India relying

upon Ajay Kumar Choudary's case (1 supra) has held that

on the basis of the available material, keeping the petitioner

under protracted suspension is not called for. The Supreme

Court also held that he should be reinstated into service.

In conclusion, this Court is of the opinion that the order

of suspension cannot be sustained now because:

(1) there is no whisper nowhere in the entire set of

documents filed or in the counter affidavits filed that the

petitioner can still influence a witness or tamper with the

record.

(2) It is not the case of the respondents that further

material has to be gathered, witnesses are being examined or

that the records are being traced etc.

1 2015 (7) SCC 291

Civil Appeal No.8427-8428 of 2018

(3) The reason for suspending the petitioner almost a

year after his transfer from the post is not explained and

there is no visible "application of mind" which is needed and a

mechanical suspension order cannot be countenanced in

law.

(4) more that a year has elapsed without a review being

conducted also and lastly,

(5) prolonged suspension itself can amount to a

punishment in a way.

In the facts and circumstances of this case, this Court

is of the opinion that the petitioner has to succeed.

Therefore, there shall be an order as prayed for and the

impugned order dated 16.09.2020 is set aside. It is hoped

that the enquiry, if any, would be completed in a time bound

and strict manner. The petitioner is also cautioned not to in

any way interfere with the progress of the enquiry/interfere

with the witnesses etc when the same is commenced against

him.

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: 12.08.2021 KLP