The Arguments Were Advanced By Sri ... vs Advocate General And The ...
2021 Latest Caselaw 3670 AP

      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
           W.P.Nos.14687, 14689 and 14691 of 2020


COMMON ORDER:
     With the consent of both the parties and at the request

of the learned Additional Advocate General, the hearing was

advanced and all the three writ petitions were heard together.

     The arguments were advanced by Sri N.Vijay, learned

counsel for the petitioners and the learned Additional

Advocate General and the Government Pleader for Services for

the respondents.

All the three petitioners before this Court are

questioning the proceedings dated 12.08.2020 by which they

were suspended from service. As the suspension is still

continuing, writ petitions are filed. As an interim order was

granted, the learned Additional Advocate General expressed

the urgency and the matter is therefore taken up for hearing.

Sri N.Vijay, learned counsel for the petitioners

commenced the arguments in WP.No.14687 of 2020 and

contended that the submissions are the same in all the three

writ petitions. The petitioners before this Court are working

in the Mines and Geology Department. The impugned order

was issued on the ground that the petitioners had colluded

with the leaseholder and submitted a survey report with

ulterior motives by which it is alleged that they had caused

loss to the State and the State exchequer.

Sri N.Vijay, learned counsel points out that the

allegation against the petitioners is that they had not

conducted a proper survey. According to the survey report

submitted by the petitioners, a leaseholder of M/s MSP

Granites has excavated 1,45,779.937 cbm and according to

the State, the excavation is 4.18 lakh cbm. Sri Vijay argues

that the present survey that was done by the petitioners was

a proper scientific survey based upon precise computation

and using proper software, whereas the survey relied upon by

the respondents which shows a quantity 4.18 lakh cbm is

unrealistic and is based upon some unscientific and non-

standards data. Therefore, learned counsel argues that the

suspension is unwarranted. He also argues in the alternate

that even though the impugned order was passed in August,

2020, till date, no disciplinary or other proceedings were

commenced against the petitioners. Apart from that he also

argues strenuously and forcefully that no proceedings were

commenced against the lease holder M/s. MSP Granites

which had allegedly excavated large amount of granite in

connivance with the others. Sri Vijay argues that it is the

leaseholder, who should first be enquired into for causing loss

to the State exchequer and it is only thereafter the petitioners

can be enquired into. Apart from this, he also submits that

Rule 8(1) of the A.P. Civil Services (CC&A) Rules 1991 (for

short 'the Rules'), talks of suspension- (a) where disciplinary

proceeding is contemplated or pending. (b) when a person is

engaged himself in activities prejudicial to the interest of the

State or (c) where a criminal offence is under investigation,

inquiry or trial.

It is his contention that two years have elapsed and no

proceedings are initiated. Relying upon the settled case law

on the subject including the Government memos which are

really not disputed, Sri Vijay argues that the suspension

should be for a limited point of time and for the purpose of

concluding the enquiry. According to him, an indefinite

suspension without commencing any proceedings virtually

amounts to a punishment being imposed without conducting

any enquiry. The case laws relied upon by the learned

counsel for the petitioners are filed with a memo which has

been served on the learned Additional Advocate General. The

leading cases of Union of India v. Ashok Kumar

Aggarwal1, State of Tamil Nadu rep., by Secretary to

Government (Home) v. Promod Kumar, IPS and another2,

Ajay Kumar Choudhary v. Union of India though its

Secretary3 and a Division Bench judgment in A.B.

Venkateswara Rao v. State of Andhra Pradesh4 and other

cases are relied by the learned counsel for the petitioners.

(2013) 16 SCC 147

(2018) 17 SCC 677

(2015) (7) SCC 291

2020 (6) ALD 33

In reply to this, learned Additional Advocate General by

relying upon the counter affidavit and the documents

enclosed thereto argues that the gravity of the offence in this

case is very serious. He points out that the initial surveys

that were conducted are in fact scientific and if the length,

width, depth of the working pits (132 x 124 x 20 meters) are

taken into consideration, the total quantity excavated would

be 4,18,619 cbm. This data is found in the plan submitted by

the lease holder. Learned Additional Advocate General by

relying upon para 7 of the counter affidavit argues that the

earlier data is correct and that the current survey has not

been done according to the methods that are scientific or

proper. The huge variation in the quantities is stressed by

the learned Additional Advocate General. He also points out

that the application for the lease itself is accompanied by a

map, which is signed by the applicant which clearly shows

that a very huge quantity was excavated. Learned Additional

Advocate General argues that as per Rule 8(1) of the Rules,

even if the enquiry is contemplated, the delinquent can be

placed under suspension. He points out that the original

geography of the hill which is the subject matter of the lease

has not been considered by the petitioners and they had only

taken the present position in assessing the quantities. It was

also clearly mentioned that the petitioners were placed under

suspension so that the survey investigation would not be

influenced. It is also urged that there is a likelihood of

tampering of documents. Therefore, learned Advocate

General justifies the suspension.

This Court after hearing both the learned counsel

notices that the suspension order is dated 12.08.2020. The

interim order passed by this Court in favour of the petitioners

is on 18.12.2020. The counter was verified and filed in

February, 2020. The hearing is taken place in September,

2021. More than one year has elapsed from the date of the

suspension. Admittedly, till date, no charge memo has been

issued to the petitioners. No steps have been taken for

commencement of the enquiry. The various G.Os which are

issued by the State of Andhra Pradesh clearly specify that

enquiries should be completed within a span of three months

or six months and that indefinite suspension is not really

warranted, except in very grave cases where investigation is

still under process.

In the case on hand, the State has pressed into service,

the earlier reports to show the pit measurements are 132 M x

124 M x 20 Meters. Therefore, it is urged that as per the first

application of the lease and the survey conducted at that

time, the quantity was far above 1.45 lakh cbm. As per the

vigilance and enquiry, joint survey report carried out for the

suspension time, the quantity is 4,18,619 cbms. The

petitioners estimate of the quantity is only 1,45,779 cbms. A

reading of the counter would show that the respondents are

stressing on the huge variations. Therefore, this Court is of

the opinion that since the data is already available, what

remains to be established is the methodology and the error if

any in the said methodology. This is a matter to be

determined by the Enquiry Officer.

The fact also remains that till date, the enquiry has not

commenced and a charge memo is also not issued. The

question of tampering of documents or influencing of the

witnesses cannot arise for the reason that the data is already

in possession of the respondents. On the ground that

enquiry is 'contemplated' the suspension cannot be delayed.

Contemplated enquiry in this Courts opinion should have a

nexus and proximity in time. Contemplation means

something that is being planned; that is in the near future.

The law on the subject is also sufficiently clear and need

not be repeated. In fact, the learned counsel for the

petitioners has relied upon the judgments of the Supreme

Court of India which are holding the field so far. It is clearly

held that the gravity of the offence is one of the major factors

to be kept in mind for imposing the suspension. Suspension

is also an interim measure in aid of the disciplinary

proceedings so that the delinquent may not tamper with the

papers/evidence or take advantage of his position. In Ajay

Kumar Choudhary's case (3 supra), the Hon'ble Supreme

Court held that suspension shall be preceding formulation of

charges; is temporary in nature and must be necessarily of

short duration. The Hon'ble Supreme Court commented that

protracted period of suspension have become the norm and

not the exception. Therefore, the Hon'ble Supreme Court by

relying upon the provisions of Section 167(2) Cr.P.C. and

bringing them into service jurisprudence has held that the

currency of suspension should not clearly extend beyond

three months, if the memorandum of charges is not served on

the delinquent. If it is served, a reasoned order must be

passed for extension of the suspension. Therefore, the

Hon'ble Supreme Court has held that keeping a person under

suspension for a long period will expose him the scorn of

society, the derision of the department even before he has

formally charged with an offence. Right to a speedy trial and

the principles related thereto were also brought into the

service jurisprudence. Ultimately, in para 21, it was held that

if the charge sheet is not served, the suspension period

should be up to three months only.

The Division Bench judgment of this Court is the

subject matter of the challenge before the Supreme Court and

hence, this Court was not proposing to go into the same.

Nevertheless, considering the judgment of the Hon'ble

Supreme Court of India in the case of Ajay Kumar

Choudhary's case (3 supra), it is held that despite the data

being available and other than stating that the petitioners are

likely to tamper with the evidence or may influence the case,

nothing categorical is pointed out. Therefore, in the interest

of justice, this Court is of the opinion that the following order

should be passed.

(a) The suspension order passed against the petitioners

dated 12.08.2020 is hereby revoked. The petitioners are

directed to be posted in an appropriate place. The postings

should not be punitive in nature and should be in such a

place that they would not interfere with the smooth progress

of the enquiry.

(b) The enquiry is directed to be commenced within the

shortest possible period of time and not later than two

months from the date of a copy of this order.

(c) The petitioners are also strongly cautioned to

cooperate for the smooth progress of the enquiry and not to

indulge in any activities; tamper with the evidence or attempt

to influence the witnesses etc. If any such action or

infraction takes place, the respondents are at liberty to take

appropriate action.

(d) It is hoped that these orders would be followed in

letter and spirit and that the enquiry if any against the

petitioners would be completed within the shortest possible

period of time keeping in view the settled law on the subject.

The findings or comments made are only for the

purpose of disposal of these writ petitions and shall not come

in the way of the Enquiry Officers in coming to their own

conclusions on merit.

With these observations, the writ petitions are allowed.

No order as to costs. As a sequel, the miscellaneous petitions

if any shall stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 22.09.2021 KLP