M.R.A. Samuel, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 929 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.17187 OF 2020

ORDER:

This petition under Article 226 of the Constitution of India is

filed for issue of writ of mandamus declaring the action of placing

the petitioner under suspension from service vide order dated

24.08.2020,Rc.No.ESE02-12021/238/2020-PESHI-CSE, as illegal,

arbitrary and violative of principles of natural justice and Articles

14, 19(1)(g) and 21 of the Constitution of India and consequently

reinstate him in the same post.

2. The petitioner joined in Education Department as Junior

Assistant in the year 1989 at Vizianagaram and worked with

utmost satisfaction of the authorities. The petitioner served at

different places and as on date, working as Assistant Director in

the office of the Regional Joint Director, School Education

Department, Kadapa, on promotion from different cadres. Till date,

no remarks are recorded against the petitioner at any time. Thus,

petitioner discharged his duties with due diligence and honestly.

3. While working at Kadapa as Assistant Director in the office

of Regional Joint Director of Education Department, one Konda

Sudhakar Reddy, C.Suresh Babu, who are superintendents

working in the office of DEO, Kadapa and Sri M.Venkata Krishna

Reddy, RJDSE Kadapa, have conspired together and started

harassing the petitioner in one way or the other for different

personal reasons. All of them have conspired together and sent a

Telugu letter to the 2nd respondent from one press reporter by

name Anil Proddatur. He made a complaint against the petitioner

by addressing a letter to the Commissioner, School Education

Department, alleging that he is misusing his official power and

revealing official secrets of the Department, to the third parties and

thereby he is minting money. It is also alleged that with the money,

he purchased house at Visakhapatnam and thereby tarnishing the

image of the Department. It is also alleged that he is lodging fake

complaints against the department officials by name Palle Ramesh

and others and that he is taking photographs of the letters received

in the inward department and sharing the said photographs to the

outsiders as such he is revealing the official information to various

third parties even before such information reached the concerned

departments, hence requested to take appropriate action against

the petitioner to safeguard the interest of the Education

Department and to keep up the prestige of the Department. The

allegations made in the complaint are false and baseless but he

was backed by departmental officials only with a view to harass

him in one way or the other and they transformed their idea into

reality and sent those complaints only with a view to send him out

from the present station.

4. On receipt of the letter, Regional Joint Director, School

Education Department - 4th respondent herein, issued notice to the

petitioner dated 18.08.2020 vide Rc.No.2641/B2/2020 calling for

his remarks on the complaint submitted by the press reporter Anil

Proddatur. Accordingly, petitioner submitted his remarks on

19.08.2020 denying the allegations. It is specifically contended

that there is no iota of truth in the allegations made in the

complaint and it is not based on any material but without

considering the remarks submitted by the petitioner to the 4th

respondent, the petitioner was placed under suspension vide

impugned order dated 24.08.2020.

5. The impugned suspension order is questioned on the

following grounds.

a) There is no iota of truth in the allegations made in the

complaint lodged against the petitioner.

b) The disciplinary authority did not afford any opportunity to

the petitioner and recorded no satisfaction to place the

petitioner under suspension in the absence of any material for

order of suspension, is illegal and arbitrary.

c) Placing the petitioner under suspension on the baseless and

vague complaint letter lodged by the press reporter against the

petitioner without considering the lurking malice behind the

letter is a serious illegality.

d) On account of placing the petitioner under suspension, his

career will be affected seriously besides tarnishing his image in

the society and that the impugned order is arbitrary and illegal

and requested to set aside the same.

6. The respondent did not file any counter but advanced

arguments during hearing.

7. Learned counsel for the petitioner Sri P.S.P.Suresh Kumar,

contended that the allegations made against the petitioner is not

based on any material and the alleged voice messages sent along

with complaint, are not placed before the Court and the order is

silent with regard to such material. Therefore, in the absence of

any iota of truth in the allegations, the impugned suspension order

in the Writ Petition is liable to be set aside.

8. Mere recording of satisfaction of the authorities without any

basis is not sufficient in compliance of Rule 8 of the Andhra

Pradesh Civil Services (Classification, Control and Appeal) Rules,

1991, and when such transfer is mala fide, the order cannot be

sustained and in support of his contention, he placed reliance on

judgment by the Division Bench of this Court reported in

A.B.Venkateswara rao Vs State of Andhra Pradesh1

represented by Chief Secretary through Government and draw the

attention of this Court to the para Nos.17,18 and 19 of the

judgment in support of his contention.

9. Finally, it is contended that on account of such impugned

order, the image of the petitioner is tarnished in the public at large

besides stigma on the career of the petitioner and if he is allowed

to be under suspension till completion of the departmental

proceedings, it is contrary to the law laid down by the Apex Court

in Ajay Kumar Choudhary2 and G.O.Ms.No.86 dated 08.03.1994

and requested to set aside the order.

10. Whereas learned Government Pleader for Services, Sri

Ashwatha Narayana contended that the Court must be slow in

interfering with suspension orders passed on administrative side

by the State and its instrumentalities, in the present facts of the

case, along with the complaint, voice messages are submitted to

the competent authority and on the basis of the voice messages

2020 LawSuit(AP) 166

2015 (7) SCC 291

only, the 4th respondent concluded that there is prima facie

material to proceed against the petitioner to take disciplinary

action by initiating disciplinary proceedings and it is suffice to

place the petitioner under suspension as his continuation in the

office seriously affects the administration and it amounts allowing

perpetration of illegal activities to tarnish the image of the

department itself and requested to dismiss the Writ Petition.

11. Considering the viable contentions available in the record,

the sole point that arises for consideration is:-

Whether order of suspension is liable to be set aside on any of the grounds urged by the petitioner?

POINT:

Admittedly, the petitioner is working as Assistant Director in

the office of the Regional Joint Director, School Education

Department, Kadapa. It appears from the material on record that

there are rival groups in the office working against one another.

Petitioner appears to be a member of one group. Konda Sudhakar

Reddy, C.Suresh Babu and others are supporting the rival group

but at the behest of the petitioner, those two persons allegedly sent

the complaint through press reporter Anil Proddatur and acting

thereupon, the 4th respondent called for remarks on the complaint

and dissatisfied with the remarks, the petitioner was placed under

suspension vide impugned order Rc.No.ESE02-12021/238/2020-

PESHI-CSE, dated 24.08.2020, but this Court cannot examine the

truth or otherwise in the allegations at this stage, while exercising

powers under Article 226 of the Constitution of India. At best, this

Court can examine the regularity of the procedure followed by the

authorities in passing administrative order, while exercising power

under Article 226 of the Constitution of India. Therefore, it is

appropriate to advert to the relevant provisions in Andhra Pradesh

Civil Services (CCA) Rules, 1991, and law declared by the Apex

Court time and again to find out whether the order passed by the

4th respondent placing the petitioner under suspension, which is

impugned in the writ petition, is in compliance of Rule 8 of the

Andhra Pradesh Civil Services (CCA) Rules, 1991, or it is tainted by

any mala fides with an ulterior motive to tarnish the image of the

petitioner and whether such order is supported by material to

record satisfaction of the concerned authorities.

12. The petitioner is governed by the Andhra Pradesh Civil

Services (CCA) Rules, 1991. Rule 8 is the relevant rule that deals

with suspension of a Government servant.

Suspension: - (1) A member of a Service may be placed under

suspension from service-

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(b) where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State, or

(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

(d) A member of a service may be placed under suspension from service even if the offence for which he was charged does not have bearing on the discharge of his official duties.

The suspension order under Rule 8 is not punitive in nature

as a penalty after completion of inquiry as contemplated under

Rule 9 of the same rules. The order challenged is only a

suspension in contemplation of disciplinary proceedings against

the petitioner. Thus, rule 8 empowers the competent authority to

place a member's service under suspension but the rule specifies

authorities competent to place various members of the state

services under suspension but in the present case, the petitioner

did not challenge the competency of the 4th respondent to place the

petitioner under suspension. Therefore, this Court is not required

to examine the competency of 4th respondent to pass the impugned

order.

13. The meaning of suspension is to debar from any privilege of

office, emoluments etc., for a time. The real effect of an order of

suspension is though an employee is continued to be member of

the Government service, he is not permitted to work, further,

during the period of his suspension, he is paid only some

allowances generally called subsistence allowance, which is less

than his salary instead of pay and allowances he will be entitled to,

if he is not suspended. An order of suspension no doubt affects the

Government servant as aforesaid but there is no basis for thinking

that because of the order of suspension, he ceases to be a member

of service, vide Kemchand Vs Union of India3. Suspension from

service cannot be also equated with reduction in rank vide Dr.G.

Thimma Reddy Vs State of Andhra.

14. The suspension is the effect of temporarily suspending the

relationship of master and servant and during this period the

employee is not permitted to work and employer is not bound to

pay vide Jammu University Vs D.K. Rampal4. An order of

suspension of the Government servant does not put an end to his

service under the Government. The real effect of the order of

AIR 1963 SC 687

AIR 1977 SC 1146

suspension is that he continues to be member of the Government

service but not permitted to work and further, during the period of

suspension he is paid in the same allowance generally called

subsistence allowance. An order of suspension, unless the

departmental inquiry is completed within a reasonable time, affects

a Government servant injuriously. The very expression subsistence

allowance has an undeniable penal significance. The expression

'life' does not merely connote animal existence or a continued

drudgery through life. It has much wider meaning. Although

suspension is not one of the punishments specified in rules vide

O.P. Gupta v. Union of India5. Thus, it is undeniable that the

effect of suspension is serious on the career and in the office also

in the public life. Therefore, before passing an order, the

authorities have to apply their mind and if the authority found that

his continuation in the office during pendency of the inquiry,

allowing him to work may adversely affect the pending inquiry or

contemplated inquiry. The Government servant can be placed

under suspension subject to filing some material to record prima

facie satisfaction that the petitioner is indulged in such activities

amounting to misconduct as defined under Rule 3 of the A.P. Civil

Services (Conduct) Rules or other rules of the same.

15. Keeping in view of the effect of suspension, it is appropriate

to examine the legality of the impugned order in the writ petition.

The petitioner is undisputedly working as Assistant Director in the

office of the Regional Joint Director, School Education Department,

Kadapa. The allegation against him is that he is disclosing official

information and minting money and acquired property at

AIR 1987 SC 2257

Visakhapatnam with the ill-gotten money and that he is sending

anonymous complaints against the other officials working in the

department and that he is disclosing official information to

outsiders thereby tarnishing the image of the department. The

allegations made in the complaint submitted by the said Anil

disclose that he also submitted certain voice messages along with

the complaint which discloses that he is committing theft of

information in files and providing those files to the outsiders. This

act, if true, is serious and prejudicial to the interest of the State

but the voice messages are not placed on record by the petitioner

along with the complaint and it is not known whether such voice

messages were actually furnished to the petitioner along with the

written complaint, while calling remarks of the petitioner and the

petition is totally silent on non-furnishing of such voice messages

to the petitioner, while calling for remarks by the 4th respondent,

before placing him under suspension vide impugned orders.

Therefore, based on the material furnished along with the

complaint, the petitioner is placed under suspension after

considering the remarks of the petitioner. Though the petitioner

made certain attributions against the other employees working in

the department, there is absolutely nothing on record to establish

the same prima facie and the petitioner never gave any complaint

against those persons, who allegedly subjecting the petitioner to

harassment while discharging his duties, for the first time, the

petitioner invented the story of harassing him by the

Superintendents working in the office obviously for the reasons

best known to him, may be to come out from the complaint.

16. In the 3rd para of the order, the 4th respondent stated that

after careful consideration of available material, he concluded that

there is prima facie evidence against the petitioner and satisfied

that it is necessary to place the petitioner under suspension from

the office of Assistant Director of School Education. He also

referred the Rule 8 of the Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, 1991, while placing the

petitioner under suspension. According to Rule 8(1)(b) of the rules,

wherein in the opinion of the authority competent to place the

Government servant under suspension, if he has engaged himself

in activities prejudicial to the interest of the security of the State,

the Government servant can be placed under suspension. Here,

the allegations made in the complaint, if true and the voice

messages support such allegations, it is certainly prejudicial to the

interest of the State, since disclosing official information to the

third parties even before acting on those information by the

departmental authorities would seriously affect the interest of the

State and it will have its impact on the Department itself, as such

the person who is acting or indulging in such activities prejudicial

to the interest of the State has to be dealt with in accordance with

law and if such person is allowed to continue to work in the

Department, he would continue to indulge in such activities. Those

activities may have some impact on the inquiry contemplated

against the petitioner as per Rule 20 of the Rules. Therefore,

placing a Government servant based on such serious allegations, if

true, is justifiable.

17. Clause (1) of Article 311 of the Constitution of India has no

application to a situation where a government servant has been

merely placed under suspension pending departmental enquiry

since such action does not constitute either dismissal or removal

from service. In certain cases, suspension may cause stigma, even

after exoneration in the departmental proceedings or acquittal by

the criminal court, but it cannot, in the strict legal sense and by

any stretch of imagination, be treated as a punishment. (Ashok

Kumar Aggarwal6; O.P. Gupta v. Union of India ; and Capt. M.

Paul Anthony v. Bharat Gold Mines Ltd).

18. An order of interim suspension can be passed against the

employee while an inquiry/investigation is pending against him

Suspending an officer, and thereby disabling him from performing

the duties of his office on the basis that the contract is subsisting,

is always an implied term in every contract of service. When an

officer is suspended in this sense it means that the Government

merely issues a direction to the officer that so long as the contract

is subsisting and till the time the officer is legally dismissed he

must not do anything in the discharge of the duties of his office. In

other words, the employer is regarded as issuing an order to the

employee which, because the contract is subsisting, the employee

must obey. (Balvantrai Ratilal Patel v. State of Maharashtra ;

T. Cajee v. U. Jormanik Siem ; R. P. Kapur7; Bhimal Kumar

Mohanty8; V.P. Gidroniya9; Jammu University v. D.K. Rampal).

Where the power to suspend is provided for either in the contract

of employment or in the statute or the rules framed thereunder,

(2013) 16 SCC 147

AIR 1964 SC 787

(1994) 4 SCC 126

(1970) 1 SCC 362

the order of suspension has the effect of temporarily suspending

the relationship of master and servant with the consequence that

the servant is not bound to render service and the master is not

bound to pay his full salary and allowances. (B.R. Patel10; Hanley

v. Pease & Partners, Ltd; Wallwork v. Fielding and Boston

Deep Sea Fishing and Ice Co. v. Ansell ).

19. If the order of suspension is a valid order, it has suspended

the contract of service and the government servant is entitled to

receive only such subsistence allowance as might be payable under

the rules and regulations governing his terms and conditions of

service(Jammu University11). As an employer can suspend an

employee pending an inquiry into his conduct, the only question

that can arise on such suspension will relate to the payment

during the period of such suspension. If there is a provision in the

Rules providing for the scale of payment during suspension, the

payment would be in accordance therewith. On general principles,

therefore, the authority entitled to appoint a public servant would

be entitled to suspend him pending a departmental inquiry into his

conduct or pending a criminal proceeding, which may eventually

result in a departmental inquiry against him. (R.P. Kapur12; V.P.

Girdroniya13; T. Cajee14; and Balvantray Ratilal Patel15; Tarak

Nath Ghosh16; Bhimal Kumar Mohanty17).

AIR 1968 SC 800

AIR 1977 SC 1146

AIR 1964 SC 787

(1970) 1 SCC 362

(1961) 1 SCR 750 = AIR 1961 SC 276

AIR 1968 SC 800

20. An order of suspension must be a step in aid to the ultimate

result of the investigation or inquiry. The authority should also

keep in mind the public interest of the impact of the delinquent's

continuance in office while facing departmental inquiry or trial of a

criminal charge. (Ashok Kumar Aggarwal18; Bimal Kumar

Mohanty19; R.P. Kapur20; and Balvantrai Ratilal Patel21. The

importance and necessity of proper disciplinary action being taken

against government servants for inefficiency, dishonesty or other

suitable reasons, cannot be over emphasized. While such action

may be against the immediate interest of the government servant,

yet it is absolutely necessary in the interests of the general public

for serving whose interests the government machinery exists and

functions. Suspension of a government servant pending an enquiry

is a necessary part of the procedure for taking disciplinary action

against him. (Khem Chand v. Union of India).

21. Ordinarily, a government servant is placed under suspension

to restrain him from availing the further opportunity to perpetrate

the alleged misconduct or to scuttle the inquiry or investigation or

to win over the witnesses or to impede the progress of the

investigation or inquiry, etc. It would also remove the impression,

among members of the service that dereliction of duty would pay.

(1971) 1 SCC 734

(1994) 4 SCC 126

(2013) 16 SCC 147

(1994) 4 SCC 126

AIR 1964 SC 787

AIR 1968 SC 800

(Ashok Kumar Aggarwal22 Bimal Kumar Mohanty23). When

serious allegations of misconduct are imputed against a member of

a service, normally it would not be desirable to allow him to

continue in the post where he is functioning. The government may

rightly take the view that an officer, against whom serious

imputations are made, should not be allowed to function anywhere

before the matter has been finally set at rest after proper scrutiny

and holding of departmental proceedings. (Tarak Nath Ghosh24).

The purpose of suspension is generally to facilitate a departmental

enquiry and to ensure that, while such enquiry is going on-it may

relate to serious lapses on the part of a public servant-, he is not in

a position to misuse his authority in the same way in which he

might have been charged to have done so in the enquiry. (R.P.

Kapur25).

22. The effect on public interest, due to the employee's

continuation in office, is also a relevant and determining factor.

Suspension is a device to keep the delinquent out of the mischief

range. The purpose is to complete the proceedings unhindered.

Suspension is an interim measure in the aid of disciplinary

proceedings so that the delinquent may not gain custody or control

of papers or take any advantage of his position. At this stage, it is

not desirable for the court to find out as to which version is true

when there are claims and counterclaims on factual issues.

(2013) 16 SCC 147

(1994) 4 SCC 126

(1971) 1 SCC 734

AIR 1964 SC 787

(Ashok Kumar Aggarwal26). No conclusion can be arrived at

without examining the entire record. It is always advisable to allow

disciplinary proceedings to continue unhindered, and the

concerned employee kept out of the mischiefs range. If he is

exonerated, he would then be entitled to all the benefits from the

date of the order of suspension. (U.P. Rajya Krishi Utpadan

Mandi Parishad v. Sanjiv Rajan; Bhimal Kumar Mohanty27).

The usual ground for suspension, pending a criminal proceeding,

is that the charge is connected with his position as a government

servant or is likely to embarrass him in the discharge of his duties

or involves moral turpitude. In such a case a public servant may

be suspended pending investigation, enquiry or trial relating to a

criminal charge. (R.P. Kapur28).

23. The power of suspension should, however, not be exercised

in an arbitrary manner and without any reasonable ground or as a

vindictive misuse of power. A suspension order cannot be actuated

by mala fides, arbitrariness, or be passed for an ulterior purpose.

(Ashok Kumar Aggarwal's case (referred (25) supra)). An order of

suspension should not be passed in a perfunctory or in a routine

and casual manner but with due care and caution after taking all

factors into account. (Ashok Kumar Aggarwal's case). It should

be made after consideration of the gravity of the alleged

misconduct or the nature of the allegations imputed to the

delinquent employee. The authority should also take into account

all available material as to whether, in a given case, it is advisable

(2013) 16 SCC 147

(1994) 4 SCC 126

AIR 1964 SC 787

to allow the delinquent to continue to perform his duties in the

office or his retention in office is likely to hamper or frustrate the

inquiry. (Ashok Kumar Aggarwal's case). Ordinarily, an order of

suspension is passed after taking into consideration the gravity of

the misconduct sought to be inquired into or investigated, and the

nature of the evidence placed before it, on application of mind by

the disciplinary authority. (Ashok Kumar Aggarwal; Bimal

Kumar Mohanty29).

24. Whether the employee should or should not continue in

office during the period of inquiry is a matter to be assessed by the

concerned authority. Ordinarily, the Court should not interfere

with orders of suspension unless they are passed mala fide and

without there being even prima facie evidence on record connecting

the employee with the misconduct in question. (Sanjiv Rajan30).

The court cannot act as if it is an appellate forum de hors the

power of judicial review. (Ashok Kumar Aggarwal). The Court or

the Tribunal must consider each case on its own facts and no

general law or formula of universal application can be laid down in

this regard. (Ashok Kumar Aggarwal; Bimal Kumar Mohanty31).

Each case must be considered depending on the nature of the

allegations, gravity of the situation and the indelible impact it

creates on the service for the continuance of the delinquent

employee in service pending inquiry or contemplated inquiry or

investigation. The authority should also keep in mind the public

interest of the impact of the delinquent's continuance in office

(1994) 4 SCC 126

1993 Supp (3) SCC 483

(1994) 4 SCC 126

while facing departmental inquiry or trial of a criminal charge.

(Bhimal Kumar Mohanty's case).

25. Even if the present case is examined based on the law

referred above, the Court must be slow in interfering with such

suspension orders. When the competent authority recorded its

satisfaction based on the material placed before him along with the

complaint that itself suffice to place a Government servant under

suspension. Though the effect of suspension is serious on the

career of the employee but debarring him from discharging his

duties temporarily is only to avoid his interference or continuously

indulging in such activities prejudicial to the interest of the state.

Normally, an appointing authority or disciplinary authority seeks

to suspend an employee pending inquiry or contemplated inquiry

or pending investigation into grave charges of misconduct or

defalcation of funds or serious acts of omission and commission.

The order of suspension would be passed after taking into

consideration of the gravity of the misconduct sought to be

enquired into or investigated and the nature of evidence placed

before the appointing authority and on application of mind by the

disciplinary authority. Appointing authority or disciplinary

authority should consider the above aspects and decide whether it

is expedient to keep an employee under suspension pending

aforesaid action. It would not be an administrative routine or an

automatic order to suspend an employee. It should be on

consideration of the gravity of the alleged misconduct or the nature

of the allegations imputed to the delinquent employee. The Court

or the Tribunal must consider each case on its own facts and no

general law could be laid down in that behalf. Suspension is not a

punishment but is only one of forbidding or disabling an employee

to discharge the duties of office or post held by him. In other

words, it is to refrain him to avail further opportunity to perpetrate

the alleged misconduct or to remove the impression among the

members of service that dereliction of duty would pay fruits and

the offending employee could get away even pending inquiry

without any impediment or to prevent an opportunity to the

delinquent officer to scuttle the inquiry or investigation or to win

over the witnesses or the delinquent having had the opportunity in

office to impede the progress of the investigation or inquiry etc.

But, each case must be considered depending on the nature of the

allegations, gravity of the situation and the indelible impact it

creates on the service for the continuance of the delinquent

employee in service pending inquiry or contemplated inquiry or

investigation. It would be another thing if the action is actuated by

mala fides, arbitrary or for ulterior purpose, the suspension must

be a step in aid to the ultimate result of the investigation or

inquiry. The authority also should keep in mind public interest of

the impact of the delinquent's continuance in office while facing

departmental inquiry or trial of a criminal charge vide State of

Orissa Vs Bimal Kumar Mohanty32 referred above.

26. In view of the law declared by the Apex Court in the

judgment referred above, this Court has to examine the facts of the

present case. The first requirement is gravity of the charge of

misconduct. The allegation against the petitioner is that he is

disclosing information to the third parties and collected money.

The same is recorded in voice messages and such voice messages

(1994) 4 SCC 126

are also allegedly sent to the 4th respondent but it is not placed on

record either by the petitioner or by the Government Pleader for

Services. Even it was not denied by the petitioner in the affidavit

except contending that it is mala fide. In the absence of denial, the

voice messages, if any annexed to the complaint in support of the

allegation therein, are true, it is a grave misconduct since such

acts are prejudicial to the interest of the State. Therefore, keeping

in view of the gravity of the misconduct sought to be enquired into,

the petitioner is placed under suspension by the 4th respondent.

27. The second requirement to place the Government servant

under suspension is there must be some evidence before placing a

Government servant under suspension. Here in this case, the 4th

respondent concluded that there is prima facie evidence in support

of the allegations perhaps the voice messages or other material,

though not referred specifically in the order. The said voice

messages are sufficient to form the basis to prima facie to conclude

that petitioner is indulged in the activities prejudicial to the

interest of the State.

28. A bare look at the impugned order, it is clear that the

disciplinary authority - 4th respondent herein has applied his mind

to the facts of the case and passed an order, not as an

administrative routine.

29. As discussed above in the earlier paras, the Courts must be

slow in interfering with the order of suspension while exercising

power under Article 226 of the Constitution of India more

particularly when the Court is satisfied that there is some material

in support of the satisfaction recorded by the 4th respondent and

not tainted by mala fides.

30. One of the allegations made in the petition is that the order

is tainted by mala fides. The reason for attribution of mala fides is

the alleged harassment of the petitioner by two of the

superintendents working in RJD office by name Konda Sudhakar

Reddy and C.Suresh Babu but it is absolutely baseless as the

petitioner never made any complaint against those employees

earlier but for the first time, the rivalry is highlighted somehow to

sneak away from the proceedings. Therefore, on the basis of such

allegations, this Court cannot interfere with the order of

suspension impugned in the writ petition.

31. Learned counsel for the petitioner placed reliance on Division

Bench judgment of this Court in A.B.Venkateswara Rao Vs State

Of A.P33 referred above and drawn attention to para 17,18 and 19

of the judgment, where the Court after analysing the law, laid

down three requirements for passing an order placing a

Government servant under suspension. The factors which are

necessary for placing officer under suspension are a) The

circumstances of the case b) nature of charges c) the satisfaction

necessary and desirability.

32. The Division Bench further reiterated that the authority

should be satisfied based on the circumstances of the case, the

evidence collected till then and nature of charges, to place the

officer under suspension. In para 19, the Division Bench of the

High Court adverted to the judgment in Bimal Kumary Mohanty

2020 LawSuit(AP) 166

and Ashok Kumar Aggarwal's case including A.K.K Nambiar34

case where the Court laid down two factors for placing an officer

under suspension and such suspension is warranted under the

rules and must be honest exercise of power. The Court can only

come to conclusion that out of honest exercise of power or of the

suspension wherein, as per the rule, when the material examined

by the authority before suspending the officer is seen by the Court

and not otherwise. The law laid down by the constitutional Bench

of Apex Court is not in dispute as discussed in the above paras.

More so, in this case, the petitioner did not attribute any mala

fides to the 4th respondent, who placed the petitioner under

suspension but attributed mala fides to the other employees in the

cadre of Superintendents who are allegedly harassing the

petitioner for different reasons. The order was passed by the 4th

respondent in his official capacity and when no mala fides are

attributed against the 4th respondent, the Court need not examine

the malus animus on the part of the 4th respondent or malice in

law or malice in fact. On the other hand, the petitioner had neither

pleaded nor established either malice in fact or malice in law.

Therefore, it is difficult to accept the contention of the petitioner

that the suspension order is tainted by mala fides.

33. The petitioner approached this Court to set aside the

impugned order of suspension on various grounds discussed

above, but this Court finds no substance in the contention.

However, the order of suspension is liable to be reviewed for every

six months, in exercise of its executive power under Article 162 of

the Constitution of India, the Government issued G.O.Ms.No.86

(1969) 3 SCC 864

General Administration (Ser.C) Department, dated 08.03.1994,

directed that the order of suspension against a government servant

should be reviewed at the end of every six months; the appropriate

reviewing authority should take a decision regarding continuance

or otherwise of the employee concerned under suspension, with

reference to the nature of charges, where the delay in finalisation

of the inquiry proceedings cannot be attributed to the employee or

when there is no interference from the employee in facilitating the

inquiry; an outer limit be provided, as two years from the date of

suspension, failing which the public servant should be reinstated

without prejudice to the proceedings being pursued; however, in

exceptional cases, considering the gravity of the charges, one could

be continued under suspension even beyond a period of two years,

especially in cases where there is a deliberate delay caused due to

non-cooperation of the employee concerned; the concerned

Principal Secretary/Secretary of the department should review

suspension, in cases of their department, at an interval of six

months with the representative of Anti-Corruption Bureau, if the

proceedings arose out of the investigation conducted by Anti-

Corruption Bureau; and they should make suitable

recommendations as to the desirability or otherwise of further

continuance of the officers under suspension. The executive

instructions issued in G.O.Ms.No.86 dated 08.03.1994 were, more

or less, reiterated in the subsequent instructions issued in

G.O.Ms.No.526 dated 19.08.2008. Therefore, in view of the G.Os

referred above if for any reason the suspension need not be

continued, the reviewing authority may take a decision to reinstate

the petitioner cancelling the suspension.

34. The main thrust of the learned counsel for the petitioner is

that when the suspension is tainted by mala fides not supported

by any material, the Court can interfere with the suspension

orders. No doubt, the Court can interfere with such mala fides

orders not supported by any material, but interference is limited.

However, in this case, as discussed above, there is some matter in

Ajay Kumar Choudhary's case. The Apex Court observed that if

the inquiry is not completed within 90 days, the suspension has to

be revoked but in the later judgments of the judgment of the

Supreme Court, in Ajay Kumar Choudhary's case, held that Rule

10(6) of the 1965 Rules and Rule 8(5) of the State Rules and the

executive instructions issued in this regard have been rendered

redundant, is not unfounded. As the law declared by the Supreme

Court is binding on the High Court, it would be inappropriate to

say anything more about the judgment. The Supreme Court in

Ajay Kumar Choudhary's case referred above drew a distinction

between cases where a charge sheet is filed within 90 days of the

order of suspension and cases where it is not. The latter has been

held to result in putting to an end the order of suspension, while

the former has been held to require a reasoned order, extending

the period of suspension, to be passed by the Government.

However, in Tarak Nath Ghosh35, the Supreme Court held that,

in principle, there is no difference between the position of an officer

against whom definite charges have been framed to which he is

required to put in his written statement and a situation where, on

receipt of allegations of grave misconduct against him, the

Government is of opinion that it would not be proper to allow the

(1971) 1 SCC 734

officer concerned to function in the ordinary way. Again, in Ashok

Kumar Aggarwal's case, the Supreme Court held that the

delinquent cannot be considered to be any better of after the

charge-sheet has been filed against him in the Court on conclusion

of the investigation than his position during the investigation of the

case itself.

35. After referring to the earlier Judgments in O.P. Gupta36,

where it was held that suspension of an employee was injurious to

his interests and must not be continued for an unreasonably long

period and, therefore, an order of suspension should not be lightly

passed; to K. Sukhendar Reddy v. State of A.P. which castigated

selective suspension perpetuated indefinitely in circumstances

where other persons involved had not been subjected to any

scrutiny; and State of A.P. v. N. Radhakishan wherein it was

observed that it would be fair to make the assumption of prejudice

if there was unexplained delay in the conclusion of proceedings;

the Supreme Court, in Ajay Kumar Choudhary's case, observed

that suspension, specially preceding the formulation of charges, is

essentially transitory or temporary in nature, and must perforce be

of short duration. If it is for an indeterminate period or if its

renewal is not based on sound reasoning contemporaneously

available on the record, this would render it punitive in nature.

Departmental/disciplinary proceedings invariably commence with

delay, are plagued with procrastination prior and post the drawing

up of the Memorandum of Charges, and eventually culminate after

even longer delay.

(1987) 4 SCC 328

36. Thus the Apex Court did not take into consideration of the

judgment in Ashok Kumar Aggarwal's case and other

constitutional Bench judgments of Supreme Court Khem Chand37,

R.P. Kapur38 and V.P. Girdroniya39; as also the other judgments

of the Supreme Court in Ashok Kumar Aggarwal; Sanjiv

Rajan40; L. Srinivasan41; and Deepak Kumar Bhola42 and

therefore, the interference is not necessitated in this case by this

Court based on the principle laid down in Ajay Kumar

Choudhary's case. All these principles were considered by the

Division Bench of High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh in Buddana

Venkata Murali Krishna Vs State Of A.P.43 to which I am one of

the members of the Division Bench. Therefore, applying the same

principle to the present facts of the case, it is difficult to interfere

with the administrative order of suspension passed by exercising

power under Rule 8(1) of A.P.Civil Services (CCL) Rules, 1991,

keeping in view of the seriousness and gravity of the misconduct

contemplated to be enquired into and the material i.e., voice

messages along with the complaint by the complainant Anil

Proddaturu and recording of satisfaction by the 4th respondent

while passing impugned order of suspension of the petitioner and

it is supported by prima facie evidence.

AIR 1963 SC 687 = 1963 Supp (1) SCR 229

AIR 1964 SC 787

(1970) 1 SCC 362

1993 Supp (3) SCC 483

(1996) 3 SCC 157

(1997) 4 SCC 1

2016 (3) ALT 727

37. The order impugned in the writ petition placing the

petitioner under suspension till completion of inquiry, he appears

to be erroneous since the suspension order is required to be

reviewed at the end of every six months as discussed in the earlier

paras vide G.O.Ms.Nos.86 and 526 referred above. Hence, it is

obligatory on the part of the 4th respondent to review the order at

the end of every six months period and take administrative

decision either to continue the Government servant under

suspension or revoke the same in the interest of the State.

Therefore, the order of suspension impugned in the Writ Petition

does not preclude the authorities to review this order of

suspension at the end of every six months strictly adhering to

G.O.Ms.Nos.86 and 526 referred above, otherwise it would amount

to suspension ad infinitum which may cause serious prejudice to

the petitioner and remain as stigma throughout his career besides

affecting the promotional chances and causing financial loss.

Accordingly, the point is answered.

38. In view of my foregoing discussion, I find no ground to set

aside the impugned order of suspension, dated 24.08.2020 vide

Rc.No.ESE02-12021/238/2020-PESHI-CSE and the petition is

liable to be dismissed.

39. In the result, the Writ Petition is dismissed. No costs.

The miscellaneous applications pending, if any, shall also

stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:18.02.2021 AKN

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.17187 OF 2020

Date:18-02-2021

AKN