S.Chandrasekhar, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3084 AP

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


                         WP.No.3771 of 2021
O R D E R:

This writ petition is filed seeking a Mandamus

questioning the order of suspension dated 29.01.2021 and

also for declaration that the Articles of charge dated

29.01.2021 are illegal, without jurisdiction based upon non-

application of mind etc.

This Court has heard Sri P.Gangaiah Naidu, learned

senior counsel appearing for Sri N.Bharath Babu, learned

counsel for the petitioner and Government Pleader for

Services-II.

Learned counsel for the petitioner submits that the

petitioner was posted as Executive Officer of a temple at Lova,

Tuni Mandal and worked there up to 07.03.2020. For certain

alleged irregularities, he was placed under suspension by an

order dated 29.01.2021. Learned senior counsel submits that

by this date, he had already been transferred and was not

working at Lova temple. Learned senior counsel also points

out that the petitioner was initially transferred and posted at

Vizianagaram. The orders were modified and the petitioner

was posted at Lakshminarasimha swami temple on

27.04.2020. Thereafter, he was posted at Dwaraka

Thirumala temple by order dated 12.05.2020. Thus, within a

span of four months, he was transferred thrice and finally

posted at Thirumalagiri in Jaggaihpeta Mandal. Therefore,

learned senior counsel submits that from March, 2020 till

September, 2020, the petitioner was being constantly

transferred to various places. Thereafter he was suspended.

Coming to the order of suspension, learned senior

counsel argues that the suspension order is issued

mechanically without application of mind. He points out that

in para 7 of the writ affidavit, the petitioner has set out the

seven grounds on which he is challenging the order of

suspension. Of these, the main ground urged (and stressed

through the argument) was that for the very same charges,

the petitioner was charge sheeted earlier in January, 2018

and exonerated. The petitioner submitted an explanation

denying the said charges. Thereafter, an enquiry was held by

the Joint Commissioner and Executive Officer of

Simhachalam temple, but reported that the allegations

against the petitioner are mere procedural lapses and need no

action. All the proceedings were dropped pursuant to this

report on 06.07.2019. Therefore, learned senior counsel

submits that conducting a re-enquiry into the very same

charges is barred by law. He also submits that the order of

suspension is issued very mechanically with a few minor

cosmetic charges and it is vindictive. Therefore, the prayers

are made for declaring the impugned order of suspension as

bad and also to declare Articles of charges as illegal.

Learned senior counsel, during the course of his

argument, filed a memo giving the list of events and a table

comparing the allegations. By relying on the tabular

statement, the learned senior counsel argues that the present

allegations and the previous allegations are virtually the

same.

In reply to this, learned Government Pleader for

Services, Smt. Sumathi, argues that the charges are not the

same. According to her, the impugned memo that is issued

suspending him after the Articles of charges that were issued

is correct. There is little similarity according to the learned

Government Pleader in a few cases, but she states that all the

charges are not identical. Additional documents were filed by

the learned Government Pleader to justify the case and her

argument. According to her, there are substantial differences

in between these two cases and it cannot be said that both

the cases are identical. She has also filed a memo comparing

the present charges and the previous allegations. According

to the learned Government Pleader, only three charges are

partially similar and 12 charges are not at all similar.

Therefore, it is her contention that the Court should not enter

into this disputed area because similarity of charges is a

matter to be decided by an Enquiry Officer and not by the

Court. She also relies upon the judgment of the Division

Bench of the combined High Court reported in Buddana

Venkata Murali Krishna v. State of A.P., rep., by its

Principal Secretary, TR & B Department, Hyderabad 1 and

argues that this judgment makes it very clear that the Court

should lightly to interfere in cases of suspension.

In reply, learned senior counsel cites the case of

G.Govindu v. Telangana State road Transport

Corporation rep., by its Managing Director,

Musheerabad, Hyderabad2, wherein a learned single Judge

has also summarized the case law on the subject. Lastly, the

learned senior counsel submits that if the substance of

charges are taken and the "language" is avoided, it is clear

that they are the same allegations. He also points out that

the petitioner was transferred long ago and that there is no

likelihood of his tampering with the investigation or

interfering with the enquiry. He argues that if such an

imminent threat is not there, keeping the petitioner under

suspension is bad in law. He points out that mala fides are

apparent from the quick and successive transfers and the

issuance of a second charge memo when the petitioner was

exonerated in the first charge memo. Therefore, he terms the

action as "vindictive".

COURT: This Court after examining all the submissions and

the law on the subject notices that there is no dispute

between the parties about the sequence of events that took

2016 (3) ALT 727

2017 (3) ALD 755

place. It is admitted that there was an earlier order and

earlier charge which was held to be mere „procedural lapses‟.

A second charge memo is now issued. The learned senior

counsel and the learned Government Pleader took great pains

to explain the similarities/dis-similarities between the

charges. While the learned senior counsel argues that the

charges are the same, by relying on his charge and the

documents, learned Government Pleader argued that the

charges are different by relying on her charge and documents.

This Court, at this stage, while exercising jurisdiction

under Section 226 of the Constitution of India, cannot go

deeper into the matter. Whether the evidence to support the

same would lead to a conclusion of the petitioner‟s guilt is not

a matter that this Court can go into at this stage. This is a

matter of evidence and in the opinion of this Court, this Court

would be entering into the area/domain exclusively reserved

for the Enquiry Officer who has to weigh the evidence that is

entrusted and decide the case on merits.

In the opinion of this Court, the petitioner has the

opportunity to raise the defence that the charges are identical

and that two enquiries cannot be held into the same set of

facts. Therefore, there is no issue of "irreparable" loss to the

petitioner. Hence, the issue whether the two charges are

identical etc., is left open to the Enquiry Officer to decide.

Articles of charge have already been issued and it is also

mentioned that the Enquiry Officer was appointed. Hence,

this Court is of the opinion that there should be a direction to

the Enquiry Officer to complete the enquiry in all respects

within a span of four months from the date of receipt of a

copy of this order. The petitioner is also at liberty to raise all

his legal pleas. He should also participate in the enquiry and

not to seek adjournments on frivolous grounds. The enquiry

to be disposed of strictly in accordance with law within the

time limit stipulated above.

As far as order of suspension is concerned, the law on

the same is well settled. Even the Division Bench states that

the suspension is a step in aid and for the ultimate result of

the enquiry. Public interest is also a factor that should weigh

before the suspension order is passed. The purpose of

keeping the Government servant under suspension is to

restrain him from availing further opportunities to perpetuate

misconduct, scuttle the enquiry or to win over the witnesses

to impede the progress of investigation etc. Even in the

Division Bench judgment, it is also stated that the order of

suspension should not be interfered ordinarily, but each case

must be considered depending on the nature of the

allegations, the gravity of the situation etc. It is also

mentioned that if the suspension order is actuated by mala

fides, arbitrariness or if it is for an ulterior purpose, it can be

interfered. All these factors must be taken into account

before passing an order of suspension.

If the present case is viewed against the backdrop of

this case law, it is clear that the allegations against the

petitioner pertain to the period prior to January, 2018 when

he worked at Lova temple. A show cause was given on

11.02.2018 and the same was denied. Thereafter, in

January, 2021, fresh Articles of charge are issued to him.

There is no explanation forthcoming from the State for this

delay. Apart from that, it is also clear that the petitioner is

not working in the said temple or in its vicinity. He was

transferred and ultimately posted at Thirumalagiri in Krishna

District. He joined duty on 14.09.2020. It is not mentioned

in the counter anywhere that the petitioner can still influence

any witness or that he will impede the investigation or cause

some delay in the disposal of the case.

The charge sheet is issued as per the form prescribed in

the CCA Rules. Annexure-3 deals with the list of documents

by which the Articles of charge are proposed to be sustained.

There is a reference to one document dated 29.10.2020.

Annexure-4 deals with the list of witnesses by which the

Articles of charge are proved. No witness is mentioned

therein. Therefore, a reading of the impugned proceedings

dated 29.01.20201 makes it clear that one document is

proposed to be used and no oral evidence is sought to be

introduced.

In these circumstances, this Court does not find any

strong or compelling reasons to keep the petitioner under

suspension. Admittedly, the alleged incidents related to

2018. He was suspended in January, 2021. No reason is

forthcoming if there is a compelling need to keep the

petitioner under suspension after the passage of this time. A

reading of the impugned order does not show that the

existence of any reasons for keeping the petitioner under

suspension. The Division Bench judgment relied upon by the

State which is the settled law on the subject, in para 12,

clearly states that if there is a risk to the enquiry by the

delinquent and public interest is affected, the suspension

may be necessary. A note of caution is also stated in para 14

that the power of suspension should not be passed in a

perfunctory manner or in a routine manner. It should be

passed keeping in view the factors into account. In the

opinion of this Court, the respondents have not considered

the factors mentioned in the preceeding two paragraphs and

the Division Bench judgment before suspending the

petitioner.

The writ petition is, therefore, partially allowed. The

order of suspension dated 29.01.2021 is set aside. The

petitioner is forthwith reinstated into service. Directions are

also given with regard to completion of the enquiry as above.

No order as to costs.

As a sequel, the miscellaneous petitions if any shall

stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date:18.08.2021 KLP