N.Reddaiah, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3049 AP

          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

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.

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

AIR 1987 SC 2257

1994 (4) SCC 126

2014 (16) SCC 147

2001 (5) ALD 290

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

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

2015 (6) ALD 694

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

(1978) 1 SCC 405

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.

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

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