Bhupani Venkata Naidu vs The State Of Ap
2021 Latest Caselaw 1631 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.5093 OF 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue a Writ or direction more particularly one in the nature of Writ of mandamus declaring the action of the respondents in passing Memo No.31131/Vig.II(2)/2010-20 dated 15.01.2019 there by rejecting the request to regularize the period of suspension that the petitioner have undergone from 19.06.2010 to 31.01.2013 as illegal, arbitrary and unconstitutional and consequently set aside the same."

The petitioner was appointed as an attender, later promoted as

Typist, Senor Assistant and Sub-Registrar Grade-II and retired in the

same capacity. He was placed under suspension during his service

and reinstated into service revoking the suspension order due to

registration of crime by Anti Corruption Bureau against him while

working in Rayalaseema region at Kurnool, and after completion of

full-fledged trial, he was found not guilty and acquitted by the

Special Court of trial of ACB cases on 02.01.2015. Thereafter, the

petitioner made a representation to the respondents to regularise the

period of suspension i.e. from 19.06.2010 to 31.01.2013 as to enable

him to draw the differential pay and allowance on account of drawal

of 50% subsistence allowance from the day of suspension to the day

of revocation of suspension. But the request of the petitioner was

rejected vide proceedings Memo No.3131/Vig.II(2)/2020-20 on the

ground that an appeal is pending against the judgment in C.C.No.87

of 2013, but the rejection of the request of the petitioner is contrary

to Fundamental Rule 54 - B (for short "F.R.54-B"), requested to set

aside the same.

Learned Government Pleader for Services - I submitted an

appeal is filed on 07.07.2015 with a petition to condone the delay in MSM,J WP_5093_2021

filing appeal, but till date the appeal is not numbered by condoning

delay in filing the appeal. Further, it is contended that when an

appeal is pending, respondents cannot be compelled to regularise the

period of suspension by applying F.R. 54 - B, requested to dismiss

the writ petition.

As seen from the material on record, the petitioner was placed

under suspension on 19.06.2010 and reinstated into service on

31.01.2013 while permitting the petitioner to discharge his duties.

The suspension was on account of registration of crime by Anti

Corruption Bureau, and the same was registered as C.C.No.87 of

2013. But C.C.No.87 of 2013 was ended in acquittal. Therefore, in

such case, F.R.54-B is applicable to such case. When the petitioner

is permitted to report duty after revoking suspension and when he

was acquitted, final order has to be passed. Mere filing of appeal,

with delay condonation petition is not a ground to stop the services

benefits to the petitioner.

According to F.R.54-B, when a Government servant who has

been suspended is reinstated or would have been so reinstated but

for his retirement while under suspension; the authority competent

to order reinstatement shall consider and make a specific order

regarding the pay and allowance to be paid to the Government

servant for the period of suspension ending with reinstatement or the

date of his retirement on superannuation, as the case may be, and

whether or not the said period shall be treated as a period spent on

duty.

Before an order treating the period of suspension is passed

affecting the employee financially it must be passed after objective

consideration and assessment of all relevant facts and after giving MSM,J WP_5093_2021

him full opportunity to make out his case. (Vide: B.D.Gupta v. State

of Haryana1).

In view of the judgment of the Apex Court (referred supra), the

memo impugned in the writ petition is illegal, arbitrary as the same

was passed without giving an opportunity to the petitioner and

failure to consider the representation strictly in accordance with

F.R.54-B is a seriously illegality. Hence, the respondents are directed

to consider the representation of the petitioner strictly in terms of

judgment of the Apex Court in B.D.Gupta v. State of Haryana

(referred supra) and pass appropriate order in accordance with law,

only after giving him an opportunity of hearing to make out his case.

With the above direction, the writ petition is disposed of. No

costs.

The miscellaneous petitions pending, if any, shall also stand

closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 20.03.2021 Ksp

AIR 1972 SC 2472