M. Hariya Naik, vs The State Of Andhra Pradesh
2021 Latest Caselaw 1299 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.13969 OF 2020
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"toissue a direction, order or writ more particularly one in the nature of writ of Certiorari:

a. Calling for all the relevant records related to and connected with Rc.No.A1/180/2019 dated 28.1.2020 of the 3rd Respondent as also Rc.No.COE 13025(43)/86/2019 C SEC Endowments dated 23.1.2020 of the 2nd Respondent (not issued to the Petitioner) and quash or set aside the same holding it as arbitrary, illegal, unjust, violative of Article 14 of the Constitution of India;

b. Consequently, direct the 3rd Respondent to reinstate the petitioner together with all benefits treating the entire period of suspension as spent on duty and release monetary and other service benefits that flow out of the quashing of the impugned order and granting the direction prayed for"

The petitioner was appointed on Nominal Muster Roll Basis in the

third respondent - Devasthanam and joined in the service on

0 1.11.1989. He has been regularized as a helper in 1992 and

was granted time scale in 1994. By virtue of seniority, he was

promoted as Record Assistant in 2009; Junior Assistant in 2009

and Senior Assistant in 2011.

As a matter of routine transfers, the petitioner was posted in the

Indian Oil Corporation petrol bunk managed by the 3rd Respondent

Devasthanam. As the petrol bunk is wholly managed by the

Devasthanam and in view of shortage of manpower and also in

consonance with the present policy of the Devasthanam, the

personnel physically managing the petrol bunk are employees from

the outsourcing agency, while the maintenance of stock position, MSM,J WP_13969_2020

loading and unloading, payment to be made to the Indian Oil

Corporation etc. are being taken care of by regular employees of the

3rd Respondent Devasthanam. The functioning of the petrol bunk

i.e., the duties of both the outsourced employees and the regular

employees is entrusted to the Superintendent who works under the

Assistant Executive Officer who is the overall in-charge of the petrol

bunk.

As the outsourced employees handle dispensing petrol and

diesel to the customers, collection of amount sale of towards that

head, remittance of the amount into the Devasthanam, shall

done by them. The outsourced employee will ensure compliance

of this requirement and the Superintendent is bound to ensure

strict compliance of their duties. The Assistant Executive Officer

who is the overall in-charge would be vicariously liable for the

commissions and omissions of the outsourced employees.

As there was no supervision on the working of

outsourced employees, taking advantage of the said fact, they

appear to misappropriated the collections from the petrol bunk

instead of remitting it into the third respondent -

Devasthanam. When the accounts of the petrol bunk were

audited by the Assistant Audit Officer, State Audit, it was

reported that there were short remittances from the petrol

bunk. The Assistant Commissioner was asked to look into the

same and submit a report. Strangely, the said officer

constituted a Committee for the purpose, comprising of three

supervisors and assistants. The said Committee made it

categorically clear that one Gurumurthy and Anil Kumar,

outsourced employees were responsible for the short MSM,J WP_13969_2020

remittance and in fact, they have misappropriated the money.

The outsourcing agency, M/s. Srisaileswara Agencies Limited,

who were the principal employer of the outsourced employees,

was called upon to remit the amount of Rs.41,69,402/-.

Criminal action also was sought to be initiated against those two

employees wherein they have been shown as Accused 1 and 2

respectively. The said accused, in their confessional statements,

implicated the petitioner along with one Sri G.Ravi who,

according to them were the employees of the 3rd Respondent

Devasthanam working in the petrol bunk. Based on the

confessional statement, the petitioner has been arrayed as Accused

No.4 in Crime No. 51 of 2019 on the file of Srisailam I Town Police

station, Kurnool District. The petitioner filed Criminal Petition

No.8146 of 2019 for grant of anticipatory bail and the same was

allowed by this Court on 08.01.2020, observing that nothing

was attributed to the petitioners in F.I.R, stating that they are

also involved in misappropriation of the money and came to the

conclusion that the accusation made against them is prima facie

not well founded at that stage.

Based on the confessional statement, the Devasthanam also

conducted a preliminary enquiry on petitioner's probable

culpability and issued a Memo on 10.10.2019 asking the

petitioner to submit his explanation on the allegation of lack of

supervision on a day-to-day basis. The petitioner submitted his

explanation on 17.10.2019 specifically pointing out that the

duties expected of the petitioner do not relate in any way to the

collection and deposit of money from the sale of petrol and diesel MSM,J WP_13969_2020

from the petrol bunk. Since the Committee appeared to have

observed that disciplinary action may be considered for the

purported dereliction of duty and based on the orders of the

2nd Respondent dated 23.1.2010 to initiate disciplinary action

against the petitioner, the 3rd Respondent Devasthanam

issued R.C.No.A1/180/2019 dated 28.1.2020 placing the

petitioner under suspension. The petitioner submitted a

detailed representation on 12.2.2020 requesting to revoke the

suspension and reinstate him in service, as the action itself has

been initiated on the dictation of the 2nd Respondent, the 3rd

Respondent has only been maintaining stoic silence. It is

contended that the order passed by the second respondent

placing this petitioner under suspension is illegal and

arbitrary and raised several grounds, they are as follows:

a) The order passed by the second respondent placing this petitioner under suspension is without any tangible evidence and material, same is illegal.

b) The second respondent without applying his mind to the facts and circumstances of the case including the allegations made against this petitioner, as a matter of routine, same is illegal.

c) The petitioner was placed under suspension, leaving the Superintendent, Assistant Executive Officer under whose aegis the petrol bunk is being run and thereby the selective suspension cannot be sustained.

d) The petitioner further contended that though six months. From the date of placing this petitioner under suspension, no charge memo was served on this petitioner commencing disciplinary action against this petitioner which is sufficient to indicate that there is no material worthy to substantiate the allegations made against this petitioner for which he has been suspended. Therefore the action of the second respondent lacks bonafides and it is in violation of right of equality MSM,J WP_13969_2020

guaranteed under part III of the Constitution of India.

e) It is further contended that the allegations made against the petitioner is lacking supervision which will not amount to misconduct and that the order placing is petitioner under suspension for contemplating initiation of disciplinary proceedings is illegal.

f) Finally it is contended that when the enquiry period of six months is completed from the date of placing this petitioner under suspension under the impugned order, no review is taken up by the concerned authority and no enquiry was initiated till date, thereby the Court can infer that there is no material to proceed against this petitioner and thereby the balance of convenience is in favour of this petitioner and against the respondents, finally requested to pass order as stated supra.

The respondents filed counter affidavit denying specific

grounds raised in the writ affidavit, while admitting about

passing of impugned suspension order against this

petitioner, placing him under suspension under the

impugned order, registration of crime against this petitioner

and others in Crime No.51 of 2019 on the file of Srisailam I

Town Police Station, Kurnool District.

The respondents also admitted that this petitioner is posted

to work in the petrol bunk being managed by the

Devasthanam and his duties are specific. He has to

supervise the entire loading and dispensation of petrol by the

outsourced employees to the customers and maintain

accounts but failed to supervise the affairs of the petrol bunk

being the supervisor of the petrol bunk and on account of

lack of supervision an amount of Rs.41,69,402/- is found MSM,J WP_13969_2020

misappropriated by the audit officer for the financial year

2016-2017. The preliminary enquiry also disclosed that this

petitioner and others involved in such misappropriation,

therefore crime was registered against this petitioner vide

Crime No.51 of 2019 on the file of Srisailam I Town Police

Station, Kurnool District.

It is specifically contended that on 16.05.2019 the following

nine employees were ordered to appear before the enquiry

officer for enquiry with all the related material of IOCL petrol

bunk pertaining to the financial year 2016 - 2017.

1. Sri G.Ravi, Senior Assistant

2. Sri M.Hariya Naik, Senior Assistant

3. Sri K.Ayyanna, Senior Assistant

4. Sri M.Ramanaidu, Record Assistant

5. Sri K.Srinivasulu, Record Assistant

6. Sri K.Venkata Ramana, Record Assistant

7. Sri V.Gowri Shankar, Contract Labour

8. Sri Guru Murthy, Outsourcing

9. Sri S.Anil Kumar, Outsourcing Agency

The petitioner who is working in the cadre of Senior

Assistant has submitted his explanation on 24.05.2019

stating that he is not responsible for the Bill Books or any

records relating to Petrol Bunk and the Counter Clerks are

responsible for the misappropriation. The Enquiry Officer

rejected their explanation, on 07.06.2019 and ordered to

submit the documents. Due to gravity of the case, the

Executive Officer constituted a Team on 15.08.2019. The

Team scrutinized the records and submitted their report on

22.09.2019, so far as the petitioner is concerned stating that,

during 01.12.2016 to 09.08.2017 the petitioner worked as

in-charge clerk in IOCL and not performed duties with MSM,J WP_13969_2020

responsibility which has led to misappropriation of funds to

the tune of Rs.28,61,541/- in connivance with the

outsourcing staff namely Guru Murthy and Anil Kumar.

Hence, recommended disciplinary action for negligence of

duties as per rules in G.O.Ms.No.830 dated 18.08.1989.

Therefore the petitioner being the in-charge clerk of the

petrol bunk in connivance with the one G. Ravi had managed

to misappropriate Rs.41,69,402/- for the entire financial

year 2016 - 2017.

It is also contended that from 01.04.2016 to 07.08.2017 the

petitioner while working at the petrol bunk maintained by

the Devasthanam, along with the outsourcing staff, also

Assistant Executive Officer and Superintendent

misappropriated an amount of nearly Rs.28,61,541/- and

did not remit the same into the bank account and the same

was detected by the Audit Officer, State Audit and raised

specific objection. Thus the petitioner directly involved in

such illegal activity of misappropriation of Devasthanam

funds.

It is further contended that, based on the preliminary

enquiry officer report, a charge memo was issued vide

Rc.No.A1/180/2019 dated 10-10-2019 consisting of three

charges to conduct regular departmental enquiry and further

directed the petitioner to submit explanation within seven

days or otherwise action will be taken basing on the available

records with the Devasthanam as per Rules i.e., Office MSM,J WP_13969_2020

Holders Servants Punishments Rules, 1987 vide

G.O.Ms.No.830 Revenue (Endts-I) Department Dated 18-08-

1989. Accordingly, the petitioner submitted his explanation

dated 17-10-2019 to the 3rd respondent denying the charges

and requested to drop further proceedings.

The second respondent issued proceedings vide

Rc.No.COE.13025(43)/86/2019 C SEC Endowments dated

23.01.2020 by which the Joint Commissioner of

Endowments (Estates) was appointed as Enquiry Officer to

conduct regular enquiry. While things stood thus, other

misappropriation of other amount was unearthed in other

wings of the Devasthanam and a preliminary enquiry was

conducted by the Additional Commissioner of Endowments

and submitted a report basing on which as many as ten

employees were placed under suspension and the

Devasthanam and ACB authorities conducted a detailed

enquiry/investigation and because of that reason, only the

enquiry pertaining to this petitioner was delayed, but not

otherwise.

The       third         respondent         issued            proceedings

Rc.No.A1/180/2019         dated    28.01.2020        by      which     the

petitioner was placed under suspension and the second

respondent issued suspension orders legally valid and

justifiable in facts and circumstances of the case referred

supra and requested to dismiss the writ petition.

During hearing Sri Goda Siva, learned counsel for the MSM,J WP_13969_2020

petitioner raised a specific ground that suspension cannot be

continued for more than three months and continuation of

suspension without review is a serious illegality after expiry

of six months period and that when the enquiry is not

initiated and completed, the suspension order is to be set

aside and the government servant has to be reinstated in

service. In support of his contention, learned counsel for the

petitioner placed reliance on the judgement of Supreme

Court in Ajay Kumar Choudhary v. Union of India1 and K.

Sukhendar Reddy v. State of Andhra Pradesh2.

Learned counsel for the petitioner contended that, though

the Assistant Executive Officer and the Superintendent are

responsible for the management of the petrol bunk being

managed by Devasthanam, they were ultimately responsible

for any misconduct of the outsourcing employees and this

petitioner cannot be saddled with any liability for the alleged

misappropriation and those two persons were not placed

under suspension, thereby, the suspension order impugned

in the writ petition is a selective one and it is violative of

Article 14 of the Constitution of India.

Finally, learned counsel for the petitioner contended that

Respondent Nos. 2 & 3 have passed the impugned order

without applying their mind to the allegations made against

this petitioner, did not consider the explanation submitted

by the petitioner and till date no enquiry was initiated

1 CDJ 215 SC 129 (Judgment of the Supreme Court in Civil Appeal No.1912 of 2015 (arising out of SLP) No.31761 of 2013 dated 16.02.2015) 2 (1999) 6 Supreme Court Cases 257 MSM,J WP_13969_2020

against this petitioner. Thereby, this Court can draw an

inference that there is no substantive material to prove

against this petitioner to establish lack of supervision over

the employees working in the petrol bunk. Even otherwise,

such lack of supervision does not amount to misconduct,

thereby, the order impugned in the writ petition is liable to

be quashed and requested to allow the petition, quashing the

impugned orders.

Whereas, Sri G.V.Ramana Rao, learned Standing Counsel

for Endowments (Rayalaseema Region) would contend that,

the voluminous material collected by the Audit Officer, State

Audit would clinchingly establish prima facie involvement of

this petitioner in alleged misappropriation of huge amount

and the crime is under investigation by the concerned police.

Anti Corruption Bureau Officials also took up investigation

in this matter and it is not concluded. However, an

explanation was called and the petitioner submitted his

explanation. Dissatisfied with the explanation submitted by

this petitioner, an enquiry was ordered against this petitioner

based on the material collected by the officer appointed to

conduct preliminary enquiry. Thus, there is sufficient

material to conclude that this petitioner failed to supervise

the affairs of the petrol bunk, more particularly, loading and

unloading of petrol, sales and collection of amount including

remittance of the same to the bank account of the

Devasthanam, while he was working as incharge of the petrol

bunk. This would show that the petitioner did not devote to MSM,J WP_13969_2020

his duty, thereby, failed to supervise the affairs of the petrol

bunk and lack of supervision would also constitute

misconduct as defined under Section 3 of Andhra Pradesh

Civil Service (Conduct)s Rules, 1964 and placed reliance on

the judgment of the Apex Court in Union of India v. J.

Ahmed3.

Learned counsel further contended that as many as ten

employees were placed under suspension by the respondent

for other financial irregularities after registration of crime

against this petitioner and others. It is contended that,

suspension of this petitioner cannot be said to be selective

suspension. Even otherwise, right to Equality cannot be

enforced for negative rights, thereby on that ground

petitioner is not entitled to claim the relief against the

respondents and consequently the writ petition is liable to be

dismissed, as the interference of this Court in suspension

orders is limited.

Finally, it is contended that, though suspension of this

petitioner for a long period is not permissible in view of the

judgement of the Supreme Court in Ajay Kumar Choudhary

v. Union of India (referred supra), but still the judgments of

the Constitutional Bench as discussed 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 v. State Of A.P.4, is not a ground to quash the

(1979) 2 SCC 286 4 2016 (3) ALT 727 MSM,J WP_13969_2020

proceedings against this petitioner and thereby, the principle

laid down in Ajay Kumar Choudhary v. Union of India

(referred supra) cannot be applied since the Apex Court did

not consider the Constitutional Bench judgement in Union

of India v. Ashok Kumar Aggarwal5; O.P. Gupta v. Union of

India6, Union of India v. R.P. Kapur7. Thus, in view of the

judgments referred supra, on the ground of delay of six

months in initiation of disciplinary proceedings, learned

counsel for the respondent contended that the suspension

order cannot be set-aside and prayed to dismiss the writ

petition.

Considering rival contentions, perusing the material available on

record, the point that arise for consideration is as follows:

"Whether the impugned order of suspension placing the petitioner under suspension is selective, without application of mind and without any material. If so, whether this Court while exercising power under Article 226 of the Constitution of India can interfere with the order of suspension and set -aside the same by issuing writ of certiorari?

P O I N T:

The petitioner was admittedly appointed as helper in the the second

respondent Devasthanam and he was placed as incharge clerk in the

same petrol bunk. Duties of the in-charge clerk is to supervise the

entire petrol bunk including loading and dispensation of petrol to the

customers; collection of amount from the customers by the

5 (2013) 16 SCC 147 6 (1987) 4 SCC 328

AIR 1964 SC 787 MSM,J WP_13969_2020

outsourcing employees and remit the same to the bank account of

the second respondent-Devasthanam.

The contention of the petitioner is that he is not supervising the

petrol bunk and the Assistant Executive Officer and Superintendent

are the persons supervising affairs of the petrol bunk and they are

liable for any such misappropriation found during the audit of

accounts.

It is a most unfortunate situation prevailing in the third respondent-

Sri Bhramarambika Mallikarjuna Swamy Devasthanam. The amount

to be credited to the temple is misappropriated by its employees. The

employees are under the obligation to protect the property of the

temple. But instead of doing so, they themselves indulged in

misappropriation allegedly to a tune of Rs.41,69,402/-. The same

was unearthed by the Audit Officer during State Audit and during

the period of supervision of this petitioner, an amount of

Rs.28,61,541/- was not remitted to the bank account of the

Devasthanam. During the said period, the petitioner was the

incharge of the petrol bunk who was taking care of the affairs of the

petrol bunk being managed by the Devasthanam, the petitioner

failed to supervise the work done by the staff in the petrol bunk

which lead to misappropriation of huge amount during his tenure.

Therefore, the second respondent issued show cause notice calling

upon explanation of this petitioner. Accordingly, the petitioner

submitted his explanation. But still, the second respondent found

the petitioner prima facie guilty of dereliction of his duties i.e. failure

to supervise the affairs of the petrol bunk.

MSM,J WP_13969_2020

One of the contentions of the petitioner is that failure to supervise

the affairs of the petrol bunk does not constitute misconduct.

According to Rule 3 of the Andhra Pradesh Civil Services (Conduct)

Rules, 1964;

(1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety.

(2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government.

(3) No Government employee shall act in a manner which will place his official position under any kind of embarrassment.

(4) No Government employee shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgement except when he is acting under the direction of his official superior, and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, shall obtain written confirmation of the direction as soon thereafter as possible. It shall be incumbent on such official superior to confirm in writing the oral directions given by him, and in any event, he shall not refuse such written confirmation where a request is made by the Government employee to whom such direction was given.

Explanation:- Nothing in sub-rule (4) shall be construed as empowering a Government employee to evade his responsibilities by seeking instructions from, or approval of, an official superior where such instructions are not necessary under the scheme of distribution of powers and responsibilities.

[(5) Every Government servant holding a superior post shall take all possible steps to ensure the integrity and devotion to duty of all MSM,J WP_13969_2020

government servants for the time being under his control and authority.

Explanation: - A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty.]

[(6) Prohibition regarding employment of children below 14 years of age : -No member of the service shall employ to work any child below the age of 14 years.]

A Government employee is expected to display devotion to duty,

devotion to duty implies due care on the part of the employee in the

performance of the work assigned to him.

In Union of India v. J. Ahmed (referred supra), the Supreme Court

had an occasion to consider the scope of the expression "devotion to

duty" and has observed as follows:

'The expression 'devotion to duty' appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what constitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe code of conduct for members of service and it can safely stated that an act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. This code of conduct being not exhaustive it would not be prudent to say that only that act or omission would constitute misconduct for the purpose of Discipline and Appeal Rules which is contrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission contrary thereto as to run counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. Allegations in the various charges do not specify any act or omission in derogation of or contrary to Conduct Rules save the general rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative MSM,J WP_13969_2020

ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings."

In view of the law laid by the Apex Court in the judgement referred

supra, failure to devote to duty constitutes misconduct.

Turning to the present case, failure to supervise the petrol

bunk constitutes misconduct prima facie. Having exclusive control

over the supervision of the petrol bunk, to supervise the affairs of the

petrol bunk which constitutes failure to devotion to duty. Thus, the

petitioner failed to devote to duty and thereby it attracts misconduct

as defined under Rule 3 of the Andhra Pradesh Civil Services

(Conduct) Rules, 1964. The contention of the petitioner that lack of

supervision does not amount to misconduct is hereby rejected, in

view of the law referred above. However, this finding is only for

limited purpose of deciding the issue and the enquiry officer, if any,

appointed for conducting enquiry against this petitioner shall

conduct enquiry uninfluenced by the observation(s) or finding(s)

recorded herein above and shall decide the misconduct of this

petitioner independently.

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 MSM,J WP_13969_2020

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. Where

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

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

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. 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.

MSM,J WP_13969_2020

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, the impact of the delinquent's continuance

in office while facing departmental inquiry or trial of a criminal

charge. 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 India8).

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. 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. The purpose of suspension is generally to

1963 AIR 687 MSM,J WP_13969_2020

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.

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. 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.

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.

The power of suspension should, however, not be exercised in an

arbitrary manner and without any reasonable ground or as a MSM,J WP_13969_2020

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 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 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.

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. The court cannot act as if

it is an appellate forum de hors the power of judicial review. 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. Each case must be considered depending on the

nature of the allegations, gravity of the situation and the indelible MSM,J WP_13969_2020

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 while

facing departmental inquiry or trial of a criminal charge.

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 MSM,J WP_13969_2020

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.

In view of the law declared by the Apex Court in the judgments

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 has misappropriated MSM,J WP_13969_2020

huge amount of money belonging to Devasthanam which 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 2nd respondent.

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 second

respondent concluded that there is prima facie evidence in support of

the allegations based on the report of the Audit Officer, State Audit.

The said report is sufficient to form the basis, prima facie to conclude

that petitioner is indulged in the serious financial irregularities

prejudicial to the interest of the State.

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 material. 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 MSM,J WP_13969_2020

Supreme Court in Ajay Kumar Choudhary's case referred above

drew a distinction between cases where a charge sheet is filed within

90 days after 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 Ghosh v. State of Bihar9,

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 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.

After referring to the earlier Judgments in O.P. Gupta v. Union of

India (referred supra), 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 (referred supra) which castigated selective suspension

perpetuated indefinitely in circumstances where other persons

involved had not been subjected to any scrutiny; and State of A.P.

(1971) 1 SCC 734 MSM,J WP_13969_2020

v. N. Radhakishan10 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.

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 Chand v. Union of India

(referred supra), Union of India v. R.P. Kapur (referred supra) and

V.P. Girdroniya v. State of Madhya Pradesh11; as also the other

judgments of the Supreme Court in Ashok Kumar Aggarwal; U.P.

Rajya Krishi Utpadan Mandi v. Sanjiv Rajan12; Secretary to

Government, Prohibition and Excise v. L. Srinivasan13; and

Allahabad Bank v. Deepak Kumar Bhola14 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

10 (1998) 4 SCC 154 11 (1970) 1 SCC 362 12 1993 Supp (3) SCC 483 13 (1996) 3 SCC 157 14 (1997) 4 SCC 1 MSM,J WP_13969_2020

Andhra Pradesh in Buddana Venkata Murali Krishna v. State Of

A.P.15 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 impugned order of

suspension, keeping in view of the seriousness and gravity of the

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

embezzlement of funds, recording of satisfaction by the State Audit

Officer and the Devasthanam, while passing impugned order of

suspension of the petitioner is supported by prima facie evidence.

The contention of the petitioner is that, when the Assistant

Executive Officer and Superintendent who were placed as incharge of

the petrol bunk were also on the same footing, they were not placed

under suspension for their failure to supervise the affairs, thereby,

the order of suspension passed against this petitioner the impugned

in the writ petition is illegal.

Whereas, the learned Standing Counsel for the second respondent

contended that it is not a selective suspension and in fact, ten

employees were placed under suspension, as alleged in Paragraph

No. 18 of the counter affidavit. Therefore, not only this petitioner, but

also ten other employees were placed under suspension in view of

unearthing huge amount of misappropriation by the employees

working under the control of the Devasthanam and the case was

entrusted to Anti Corruption Bureau authorities to conduct detailed

investigation.

15 2016 (3) ALT 727 MSM,J WP_13969_2020

Even otherwise, placing this petitioner under suspension cannot be

said to be selective, for the reason that, he being an employee placed

as incharge of the petrol bunk, his duty is to take care of the

accounts and other affairs of the petrol bunk. But, the petitioner

failed to take care as required to supervise the affairs of the petrol

bunk including unloading, collection and remittances of amount to

the Devasthanam. So far as other employees are concerned they are

not direct employees under the control of the second respondent and

third respondent but they are under the control of principal employer

that is M/s. Srisaileswara Agencies Ltd. Therefore, failure to place

the outsourcing staff under suspension cannot be said to be selective

suspension of this petitioner and it amounts to discriminating this

petitioner from other employees and violative of Article 14 of the

Constitution of India.

No doubt, Article 14 of the Constitution of India deals with equality

before law. The State shall not deny to any person equality before the

law or the equal protection of the laws within the territory of India.

Concept of equality is a positive concept. Court can command the

State to give equal treatment to similarly situated persons but

cannot issue a mandate that the State should commit illegality or

pass wrong order because in another case such an illegality has been

committed or wrong order has been passed. Article 14 cannot be

invoked for perpetuating irregularities or illegalities (vide Usha

Mehta v. Government of Andhra Pradesh16). Article 14 would apply

only when invidious discrimination is meted out to equals and

similarly circumstanced without any rational basis or relationship in

that behalf. (vide Bondu Ramaswamy v. Bangalore Development

2012 (10) SCALE 468 MSM,J WP_13969_2020

Authority17). A person is treated unequally only if that persons is

treated worse than others, and those others (the comparison group)

must be those who are "similarly situated" to the complainant. (vide

Glanrock Estate (Private) limited v. State of Tamil Nadu18)

Thus, equal protection is to be provided to equally placed persons

and any amount of discrimination is violative of fundamental right

guaranteed under Article 14 of the Constitution of India.

In the present facts of the case, the petitioner is an employee who is

placed as in-charge clerk of the petrol bunk being managed by the

Devasthanam. He failed to devote to his duty i.e. failed to supervise

the affairs of the petrol bunk. When he is placed as in-charge of the

petrol bunk for a particular period, he is the person supervising the

petrol bunk at the grass root level. The Assistant Executive Officer

and the Superintendent are also liable for such lack of supervision,

but their liability is remote, since they are not working directly in the

petrol bunk. Hence, failure to place the other employees under

suspension cannot be said to be invidious discrimination and

selective suspension.

Learned counsel for the petitioner while contending that suspension

of the petitioner is a selective one, placed reliance on the judgement

of the Apex Court in K. Sukhendar Reddy v. State of Andhra

Pradesh (referred supra), where the question relates to the

arbitrary suspension of an IAS Officer pending investigation for many

years and not resorting to such suspension in respect to other

officers and it was in those circumstances held that to keep an

(2010) 7 SCC 129

(2010) 10 SCC 96 MSM,J WP_13969_2020

officer under suspension selectively contemplating disciplinary

proceeding for indefinite period is not permissible.

In Vice-Chancellor, M.D. University v. Jahan Singh19, that the

benefit conferred to one person illegally cannot be claimed by other

persons on the ground of equality, holding that Article 14 of the

Constitution of India cannot be invoked to perpetuate illegality and

Article 14 is a positive concept. In the said decision, it was held as

follows:

"28. Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India carries with it a positive concept. Article 14 of the Constitution cannot be invoked, for perpetuating illegality. (See Kuldeep Singh v. Govt. of NCT of Delhi, [2006] 5 SCC 702.)"

In Tata Engineering & Locomotive Co. Ltd. v. Jitendra P.

D.Singh and another20, in the context of three workmen involved in

a misconduct who were found guilty, out of whom one was punished

with one month suspension, other was reinstated as per the

direction of the Labour Court, and the third person was singled out

for dismissal from service, the Supreme Court held that the

connection between misconduct and employment of workman may

not be of much significance when such act has taken place within

the premises of the factory and that should be decided in appropriate

cases.

[2007] 5 SCC 77 20 [2001] 10 SCC 530 MSM,J WP_13969_2020

In S. Vadivel v. The State of Tamil Nadu21, the Madras High Court

reiterated the principles laid down by the Supreme Court in the

judgments referred supra.

In U.P. Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan

(referred supra) the Apex Court while dealing with the issue of

suspension held as follows:

"The ground given by the High Court to stay the operation of the suspension order, is patently wrong. There is no restriction on the authority to pass a suspension order second time. The first order might be withdrawn by the authority on the ground that at that stage, the evidence appearing against the delinquent employee is not sufficient or for some reason, which is not connected with the merits of the case. As happened in the present case, the earlier order of suspension dated 22nd March, 1991 was quashed by the High Court on the ground that some other suspended officer had been allowed to join duties. That order had nothing to do with the merits of the case. Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question-and hence it is always advisable to allow the disciplinary proceedings to continue unhindered.It is possible that in some cases, the authorities do not proceed with the matter as expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an explanation from the authorities in the matter, and if it is found unsatisfactory, lo direct them to complete the inquiry within a stipulated period and to increase the suspension allowance adequately. It is true that in the present case, the charge-sheet was filed alter almost a year of the order of suspension. However, the facts pleaded by the appellants show that the-defalcations were over a long period from 1986 to 1991 and they involved some lakhs, of rupees. It also appears that the authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was bound to take some time. The Court has to examine each case on its own facts and decide whether the delay in serving the charge-sheet and completing the inquiry is justified or not. However, in the present case the High Court has not quashed the order of suspension on the ground of delay in framing of the charges. As stated earlier, it has set aside the order of suspension on the

W.P.No.855 of 2008 dated 17.12.2009 MSM,J WP_13969_2020

ground that the authority had no power to pass the second order of suspension in the same case. We are afraid that the High Court has misconstrued the nature and purpose of the power of suspension vested in the management. It is not disputed that at present all officers concerned are served with the charge-sheets and have been suspended. There is no discrimination between the officers on that account. The charges are also grave and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue in employment to enable them to conduct the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justified.

(emphasis supplied)

In P.N. Raikwar and others v. State of Madhya Pradesh22,

the High Court of Madhya Pradesh relied on the judgment of U.P.

Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan (referred

supra) and held that, Courts should not ordinarily interfere with the

suspension orders unless passed malafide and without there being

even a prima facie evidence connecting the delinquent with the

misconduct in question.

Thus, the principle laid down by the Apex Court and various

High Courts in the judgments referred supra, it is clear that Article

14 of the Constitution of India cannot be invoked for negative

enforcement of right. The petitioner is not entitled to claim such

relief invoking Article 14 of the Constitution of India on the ground of

selective suspension. Hence, by applying the principle laid down in

the above judgments, the contention of the learned counsel for the

petitioner is rejected.

The other ground raised by the petitioner before this Court is

that, there is absolutely no material to saddle him with any liability

W.P.No.10787 of 2012 & batch dated 14.03.2013 MSM,J WP_13969_2020

and the second respondent did not apply his mind to the material

available on record.

It is evident from the material on record, that an amount of

Rs.41,69,402/- of deity's amount was misappropriated from the

petrol bunk being run by the temple authorities. But, the

respondents having satisfied about the material based on the Audit

Officer, State Audit report, concluded that there is material against

this petitioner. the petitioner being the custodian of the property of

the deity, is under obligation to protect the property of the deity,

since deity is a perpetual minor, as held by the Apex Court in K.

Arjun Das v. Commissioner of Endowments, Orissa23. Instead of

protecting the interest of the deity, the petitioner indulged in such

unlawful activity of misappropriation of the amount from the petrol

bunk being run by the Devasthanam. But, the exact amount

allegedly misappropriated by the petitioner and his role can be

decided only at the end of enquiry, but not at this stage, this Court

cannot venture to decide the exact liability and role played by this

petitioner in the alleged misappropriation of amount.

The departmental authorities can place the government

servant under suspension in the following circumstances:

(i) The real effect of the order of suspension is that employee continues to be a member of service of employer but is not permitted to work and further during the period of suspension he is paid subsistence allowance.

(ii) It would not be as an administrative routine or an automatic order to suspend an employee and not to be lightly passed. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee.

(2019) 10 SCC 355 MSM,J WP_13969_2020

(iii) The suspension must be a step in aid to the ultimate result of the investigation or inquiry.

(iv) The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground, as vindictive and in misuse of power.

(v) Suspension should be made only when there is a strong prima facie case of delinquency.

(vi) Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered.

(vii) order of suspension can be resorted to pending further investigation or contemplated disciplinary action only on grave charges.

(viii) Competent Authority should take into consideration relevant facts and attendant circumstances as to how far and to what extent public interest would suffer if the delinquent is not placed under suspension.

(vide G. Shashi Kumar v. Telangana State Road Transport

Corporation24)

Keeping in view the principles laid down in the above

judgment, the petitioner was placed under suspension by the second

respondent, having satisfied that there is material against this

petitioner prima facie. There is a possibility of interference of this

petitioner with further investigation being done by the Anti

Corruption Bureau and the material being collected during enquiry

by the department. To avoid such interference, the second

respondent placed the petitioner under suspension.

Yet, another purpose in placing this petitioner under

suspension is that, in case, the petitioner is allowed to render his

service, despite his involvement in such huge misappropriation, it

will amount to permitting the petitioner to perpetuate illegality and

possibility of committing similar acts during pendency of

investigation in the criminal case and enquiry in the present case,

W.P.No.2666 of 2017 dated 22.03.2017 MSM,J WP_13969_2020

cannot be ruled out, such misappropriation can never be a premium

to government servant. Therefore, the petitioner was rightly placed

under suspension by the second respondent and such order cannot

be interfered by this Court, since this Court while exercising power

under Article 226 of the Constitution of India cannot sit over an

appeal against the order of a disciplinary authority. Therefore, I am

not inclined to set-aside the impugned order of suspension at this

stage.

The second respondent having considered the material prima

facie, concluded that there is material to proceed against this

petitioner to enquire into the role of this petitioner in

misappropriation of Rs.41,69,402/- in total and along with this

petitioner, ten other employees were placed under suspension, as per

the material available on record. Therefore, the order passed by the

second respondent placing this petitioner under suspension is

neither selective suspension, nor without any material. Apart from

that, this Court cannot enforce right to equality for negative

rights, on the ground of selective suspension against this

petitioner.

Article 226 of the Constitution of India preserves to the High

Court power to issue writ of certiorari amongst others. The principles

on which the writ of certiorari is issued are well-settled. The Seven

Judge Bench of the Apex Court in Hari Vishnu Kamath Vs. Ahmad

Ishaque and Ors25 laid down four propositions and summarized the

principles of the Constitution Bench in The Custodian of Evacuee

(1955) 1 SCR 1104 MSM,J WP_13969_2020

Property Bangalore v. Khan Saheb Abdul Shukoor etc26 as

under:-

"the High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque (referred supra) and the following four propositions were laid down :-

"(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."

In the exercise of certiorari jurisdiction, the High Court

proceeds on an assumption that a Court which has jurisdiction over

a subject matter has the jurisdiction to decide wrongly as well as

rightly. The High Court would not, therefore, for the purpose of

certiorari assign to itself the role of an Appellate Court and step into

re-appreciating or evaluating the evidence and substitute its own

findings in place of those arrived at by the inferior court.

(1961) 3 SCR 855 MSM,J WP_13969_2020

In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills

Division and Appeals, Assam & Ors27, the parameters for the

exercise of jurisdiction, calling upon the issuance of writ of certiorari

where so set out by the Constitution Bench:

"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226."

The Constitution Bench of the Apex Court in T.C. Basappa v.

T. Nagappa & Anr28, held that certiorari may be and is generally

granted when a Court has acted (i) without jurisdiction, or (ii) in

excess of its jurisdiction. The want of jurisdiction may arise from the

nature of the subject-matter of the proceedings or from the absence

of some preliminary proceedings or the court itself may not have

been legally constituted or suffering from certain disability by reason

of extraneous circumstances. Certiorari may also be issued if the

court or tribunal though competent has acted in flagrant disregard of

(1958) SCR 1240

(1955) 1 SCR 250 MSM,J WP_13969_2020

the rules or procedure or in violation of the principles of natural

justice where no particular procedure is prescribed. An error in the

decision or determination itself may also be amenable to a writ of

certiorari subject to the following factors being available, if the error

is manifest and apparent on the face of the proceedings such as

when it is based on clear ignorance or disregard of the provisions of

law but a mere wrong decision is not amenable to a writ of certiorari.

Any authority or body of persons constituted by law or having

legal authority to adjudicate upon questions affecting the rights of a

subject and enjoined with a duty to act judicially or quasi-judicially

is amenable to the certiorari jurisdiction of the High Court. The

proceedings of judicial courts subordinate to High Court can be

subjected to certiorari.

As discussed above, the jurisdiction of this Court is

limited and therefore, this Court cannot interfere with such

order of suspension of a government servant, more

particularly, when there is prima facie material against this

petitioner to place this petitioner under suspension.

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

interfere with the order impugned in the writ petition.

However, it is appropriate to direct the respondents to review

objectively, the suspension order in terms of G.O.Ms.No.86

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

G.O.Ms.No.526 General Administration (Ser.C) Department dated

19.08.2008. If, for any reason, before completing the enquiry, if the

respondents during review found that there is no need to continue MSM,J WP_13969_2020

this petitioner under suspension, the disciplinary authority/

respondents may pass appropriate order as expeditiously as

possible, complete the enquiry in any event not later than six months

from the date of receipt of copy of this order.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous petitions pending, if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 03.03.2021

SP