The State Of Ap vs S.Peraiah
2021 Latest Caselaw 3707 AP

     IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                      &
             HON'BLE MR. JUSTICE NINALA JAYASURYA


                     WRIT APPEAL No.449 of 2021

                       (Through video conferencing)

The State of Andhra Pradesh
Rep., by its Principal Secretary,
School Education Department,
Secretariat, Velagapudi,
Guntur District and others.
                                                      ...Appellants
                                    Versus

S. Peraiah, S/o Late Venkaiah,
Aged 43 years, Occ: Senior Assistant
Under suspension, O/o District Educational Officer,
H.No.81745, Medarametla, Korisepadu M,
Prakasam District.
                                                      ...Respondent


Counsel for the appellants             : GP for Services III

Counsel for the respondent            : Mr. Poodattu Amarender

Date of hearing                        : 13.09.2021

Date of Judgment                       : 23.09.2021


                                JUDGMENT

(per Arup Kumar Goswami, CJ)

Heard Mr. K. Bheema Rao, learned Government Pleader for

Services III appearing for the appellants. Also heard Mr. Poodattu

Amarender, learned counsel appearing for the respondent/writ petitioner.

2. This writ appeal is directed against the judgment and order dated

21.07.2020 passed by the learned single Judge in W.P.No.7647 of 2020.

HCJ & NJS,J

3. The writ petition was filed praying for a writ of Mandamus to direct

the respondents (hereinafter referred to as 'appellants') to enhance the

subsistence allowance at the rate of 75% of pay from 28.04.2019

onwards in terms of Fundamental Rule 53, to release the arrears and to

continue to pay the same at that rate.

4. The case of the writ petitioner is that he was appointed as Junior

Assistant on 11.01.1999 in the office of the Deputy Educational Officer,

Purchur and was promoted as Senior Assistant in the year 2013. While he

was working as such, he was sent to judicial custody for more than 48

hours in connection with CR.No.01/RCT-OGL/2019 on the allegation that

he had demanded bribe amount of Rs.60,000/- from the complainant for

processing the file pertaining to St.Arnold's English Medium High School,

Medaramettla for opening of additional sections to classes 1 to V in the

said school, for which the complainant was the correspondent, and for

handing over the order of the District Education Officer (DEO) according

permission to open additional sections to classes 1 to V to the

complainant.

5. Since the petitioner was in judicial custody for more than 48 hours,

the DEO, Prakasam District, Ongole, in exercise of powers conferred by

Sub-rule (2) (a) of Rule (8) of Andhra Pradesh Civil Services

(Classification, Control and Appeal) Rules, 1991 (for short, 'Rules of

1991'), vide proceedings dated 30.01.2019, placed him under suspension

indicating that he shall continue to remain under suspension until the

conclusion of the disciplinary proceedings relating to the charges.

6. The learned single Judge disposed of the writ petition observing as

follows:

HCJ & NJS,J

"2. Heard the counsel for the petitioner and the

Government Pleader for Education appearing for

the respondents 1 to 3.

3. The counsel for the petitioner at the outset

submits that in similar matter, this Court by virtue

of the orders in Writ Petition No.15212 of 2019

has directed the respondents therein to pay 75%

of wages as subsistence to the petitioner. The

order reflects that this Court took into

consideration the orders passed in Writ Petition

No.15212 of 2019, dated 30-09-2019, wherein a

similar direction was made to the respondents.

There is no dispute by the Government Pleader

that this order covers the facts of the present

case also.

4. Hence, in terms of the said order, there shall

be a direction to the respondents to pay 75% of

wages as subsistence to the petitioner with effect

from 28-04-2019.

5. With the above direction, the Writ Petition is

disposed of. There shall be no order as to costs."

7. Mr. K. Bheema Rao, learned Government Pleader for Services III

appearing for the appellants, submits that in view of Fundamental Rule 53

(1)(ii)(a)(iv), the petitioner is not eligible for subsistence allowance to the

tune of 75%. It is submitted that without any discussion as to whether

the order in W.P.No.15212 of 2019 applies to the facts of the present HCJ & NJS,J

case, the learned single Judge proceeded to issue a direction in terms of

the order dated 30.09.2019 in W.P.No.15212 of 2019.

8. Mr. P. Amarender, learned counsel for the respondent/writ

petitioner, submits that vide G.O.Rt.1846 General Administration (SC.D)

Department, dated 23.08.2018, as available at page No.33 of the material

papers, the Government had enhanced the subsistence allowance of one

Karanam Venkata Ranga Sai Kumar, Joint Secretary, from 50% to 75%,

though he was under judicial custody exceeding 48 hours in a

disproportionate assets case in Cr.No.05/RCA-CIU-ACB/2017 registered

under sections 13(1)(e) read with 13(2) of the Prevention of Corruption

Act, 1988. It is submitted that the counsel for the appellants had agreed

that the order dated 30.09.2019 in W.P.No.15212 of 2019 covers the

issue involved in the present writ petition and accordingly, Mr. Amarender

submits that no case is made out for interference with the aforesaid order

and the appeal is liable to be dismissed.

9. We have considered the submissions of the learned counsel for the

parties and perused the materials on record.

10. Perusal of the materials on record would go to show that after the

judgment dated 21.07.2020, without prejudice to the criminal/disciplinary

proceedings pending against him, in exercise of powers conferred by

clause (c) of Sub-Rule (5) of Rule 8 of the Rules of 1991, the suspension

of the petitioner was revoked and he was reinstated in service subject to

the condition that he would be transferred to any vacant non-focal post at

a distant place.

HCJ & NJS,J

11. At this stage, it is appropriate to extract relevant portion of

Fundamental Rule 53:

Fundamental Rule 53. (1) A Government Servant

under suspension (or deemed to have been

placed under suspension) by an order of the

appointing authority shall be entitled to the

following payments, namely:

(i) x x x

(ii) In the case of any other Government

servant:-

(a) a subsistence allowance at an amount

equal to the leave salary which the

Government servant would have drawn if he

had been on leave on half average pay or on

half pay and in addition, dearness allowance,

if admissible on the basis of such leave

salary:

Provided that where the period of suspension

exceeds (three months), the authority which

made or is deemed to have made the order

of suspension shall be competent to vary the

amount of subsistence allowance for any

period subsequent to the period of the first

three months as follows:

(i) The amount of subsistence allowance may

be increased by a suitable amount, not

exceeding 50 percent of the subsistence HCJ & NJS,J

allowance admissible during the period of first

three months, if, in the opinion of the said

authority, the period of suspension has been

prolonged for reasons to be recorded in

writing, not directly attributable to the

Government servant;

(ii) x x x

(iii) x x x

(iv) the amount of subsistence allowance

shall be restricted to 50% in all cases where a

prima-facie case is established on charges of

corruption, misappropriation and demand or

acceptance of illegal gratification until

finalisation of the disciplinary case.

12. The writ petitioner had submitted a representation dated

16.09.2019 for enhancement of subsistence allowance from 50% to 75%

in terms of FR 53(1)(ii)(a)(i) with effect from 28.04.2019 i.e., from the

date of completion of three months of suspension.

13. The argument of Mr. Bheema Rao is that in view of FR.

53(1)(ii)(a)(iv), the amount of subsistence allowance is to be restricted to

50% in all cases where a prima facie case is established on charges of

corruption, misappropriation and demand or acceptance of illegal

gratification until finalisation of the disciplinary case.

14. Mere suspension of an employee does not mean that a prima facie

case is established on charges of corruption, misappropriation and

demand or acceptance of illegal gratification. A disciplinary proceeding is HCJ & NJS,J

initiated with the issuance of a charge sheet. No material has been placed

on record to indicate that any charge sheet has been submitted against

the petitioner. In the absence of the same, when a disciplinary proceeding

has not even been initiated, by no stretch of imagination can it be said

that a prima facie case was established against the petitioner on the

charge of corruption, misappropriation and demand or acceptance of

illegal gratification. The argument advanced by Mr. Bheema Rao is wholly

misconceived.

15. In view of the above discussion, we find no good ground to

interfere with the order under appeal.

16. Accordingly, the Writ Appeal is dismissed. No costs. All pending

miscellaneous applications shall stand dismissed.

ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J Nn