Andhra Pradesh High Court - Amravati

A.B. Venkateswara Rao, Ips, vs Mr.Sameer Sharma Ias, on 29 November, 2022

Bench: D.V.S.S.Somayajulu, Subba Reddy Satti

         HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                             And
         HON'BLE SRI JUSTICE SUBBA REDDY SATTI


                    C.C.No.2052 of 2022


O R D E R:

This contempt case has been filed alleging that the

respondent has committed contempt by willfully disobeying

the order dated 22.05.2020 passed by this Court.

2. This Court has heard Sri B.Adinarayana Rao, learned

senior counsel representing the petitioner and Sri

V.Maheshwar Reddy appearing for the respondent.

3. Learned senior counsel appearing for the petitioner

points out that this Court by a reasoned order quashed

G.O.Ms.No.18 GAD (SC.D) Department dated 08.02.2022 by

which the petitioner was kept under suspension. The

respondent-State questioned the said order by filing a Special

Leave Petition and by a final order dated 22.04.2022, the

Hon'ble Supreme Court of India disposed the Special Leave

Petition and refused to interfere with this Courts order.

Learned senior counsel therefore submits that on 16.05.2022,

the respondent has issued G.O.Ms.No.889 revoking the

suspension of the petitioner and reinstated him into service.

The petitioner had in the interim period also issued letters

dated 29.04.2022, 10.05.2022, 19.05.2022 and 09.06.2022

seeking payment of the pending pay and allowances in view of

the final order passed by the Supreme Court. Learned senior

counsel points out that despite the same, the respondent has

not implemented the order or paid the salary, allowances etc.,

that are due to him. Therefore, learned senior counsel

submits that there is willful and wanton disobedience.

Hence, he prays that the Contempt application should be

allowed and the respondent should be punished for willful,

deliberate and wanton disobedience.

4. In reply to this, Sri V.Maheshwar Reddy appearing for

the respondent argues the matter at length. He relies upon

the contents of the counter affidavit filed and in particular

paras 13-20 and points out that the details of the amounts

paid. He points out that it is an admitted fact that these

amounts were paid to the petitioner. It is also his contention

that the Hon'ble Supreme Court did not go into the intrinsic

merits of the matter and had in fact dismissed the Special

Leave Petition on the ground that the period of suspension as

per the relevant Rules can only continue for two (2) years.

Therefore, he points out that the Hon'ble Supreme Court held

that the issue had become academic and dismissed the

Special Leave Petition directing the State to 'notionally' treat

the petitioner as in service from 08.02.2022 along with all

emoluments and perks to be extended on that basis.

Learned counsel points out that pursuant to the order of the

Hon'ble Supreme Court, G.O.Ms.No.889 dated 16.05.2022

was issued and the amounts detailed in para 18 of the

counter affidavit have been paid to the petitioner. In addition,

learned counsel also submits that merely because the

petitioner is reinstated into service, he cannot, as a matter of

right, claim to be entitled to all the pay and perks etc. He

draws the attention of this Court to FR 54-B(1), 54-B(3) and

54-B(4) which are detailed in paras 19 to 22 of the counter

affidavit and points out that even after reinstatement, the

Government has the discretion and the authority to decide

the pay and allowances to be paid to the Government servant.

It is his contention that only when the authority comes to the

conclusion that the order of the suspension was wholly

unjustified, the Government servant may be entitled to all the

pay and allowances. It is his further contention that the

suspension could only be regarded as wholly unjustified, if

the petitioner is completely and totally exonerated of all his

charges. Learned counsel also points out that the

disciplinary enquiry against the petitioner is at the final stage

and only after conclusion of the enquiry, will it be possible to

decide if the suspension is justified or not. He points out that

the regularization of the suspension period and the decision

on the salary etc., to be paid would be decided as per the

Rules and at the appropriate time when the enquiry is

concluded. In view of this factual and rule position, learned

counsel submits that there is no willful or wanton

disobedience of the Courts order. He contends that

disobedience is said to be willful only when it is ex facie

visible from the record and is in patent disregard of the

Courts order. As per the learned counsel, when more than

one interpretation is possible and/or the order is not capable

of implementation due to a genuine inability etc., it cannot be

said to be willful disobedience. He therefore, prays that the

contempt case should be dismissed.

5. COURT: This Court has carefully considered the

submissions made on either side. The order passed by this

Court is a detailed and reasoned order. The Hon'ble Supreme

Court refused to interfere with the said order in the Special

Leave Petition and passed the following order:

"Heard learned counsel for the parties. We decline to interfere in this special leave petition essentially because, in law, the impugned suspension order in any case cannot and could not have continued after 07.02.2022 on expiry of two years period from 08.02.2022. That being the legal position, now the issues raised in this petition have become academic.

The suspension order had continued because of the stay granted by this Court. Therefore, it would be regarded as valid only till 07.02.2022.

We dispose of this petition while making it clear that the authorities are free to proceed further against the respondent in respect of all other matters in accordance with law.

All contentions available to both sides in that regard are left open.

This observation equally applies to the first information report registered against the respondent on 18.03.2021.

The effect of dismissal of this special leave petition is to notionally treat the respondent as in service on and from 08.02.2022 and all emoluments and perks be

extended on that basis. Pending applications, if any, stand disposed of.

6. A perusal of this order shows that the Hon'ble Supreme

Court noticed the rule position and held that the suspension

could not continue beyond two years from 08.02.2022.

Therefore, the Hon'ble Supreme Court held that it is valid till

only 07.02.2022. However, the Hon'ble Supreme Court

clearly held that the authorities are free to proceed against

the petitioner in all other matters and all the contentions

available to both the sides are left open. Ultimately, it held

that the effect of the dismissal of the SLP is to 'notionally'

treat the petitioner as in service.

7. Apart from this, the legal position based upon FR 54-

B(1) to FR 54-B(5) is also an issue of importance in this case.

The said Fundamental Rules are as follows:

F.R. 54-B. (I) Wnen a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall cansider and make a specific order--

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement

(including premature retirement), as the case may be;

and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended : Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the . communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only

such amount (not being the whole) of such pay and allowances as it may determine.

(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.

(5) In case other than those falling under sub-rules (2) and (3) the pay and allowances payable to the government servant for the period of suspension, shall be limited to the subsistence allowance already paid under FR 53.

8. As per the Fundamental Rules applicable, it is the

authority competent to order reinstatement who shall have

the final say in the matter. If the authority is of the opinion

that the suspension was 'wholly unjustified', then, an

appropriate order will have to be passed. In this Courts'

opinion the usage of the words 'wholly unjustified' are of

enormous significance and the same cannot be lost sight of.

9. In the case on hand, neither the Hon'ble Supreme Court

nor the authority state that the suspension of the petitioner is

'wholly unjustified' nor has the petitioner been completely

exonerated. The matter is left open and according to the

counter, the enquiry is at the final stage and the Union Public

Service Commission is also appraised of the matter. A

decision has not yet been taken.

10. Apart from that, this Court also notices that the Ho'ble

Supreme Court of India in the case of Greater Hyderabad

Municipal Corpn. v. M. Prabhakar Rao1 held as follows:

8. Sub-rule (3) of FR 54-B extracted above, thus, vests power on the competent authority to order reinstatement to form an opinion whether suspension of a government servant was wholly unjustified and if, in its opinion, the suspension of such government servant is wholly unjustified, such government servant will be paid the full pay and allowances to which he would have been entitled, had he not been suspended. The proviso to sub-

rule (3) of FR 54-B, however, states that where such authority is of the opinion that the termination of the proceedings instituted against the government servant had been delayed due to reasons directly attributable to the government servant then the government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. In other words, even where the competent authority is of the opinion that the suspension was wholly unjustified, the government servant may still not be entitled to be paid the whole pay and allowances, but may be paid such pay and allowances as may be determined by the competent authority. (emphasis supplies)

9. The rationale, on which sub-rule (3) of FR 54-B is based, is that during the period of suspension an employee does not work and, therefore, he is not entitled

(2011) 8 SCC 155

to any pay unless after the termination of the disciplinary proceedings or the criminal proceedings the competent authority is of the opinion that the suspension of the employee was wholly unjustified. This rationale has been explained in clear and lucid language by a three-Judge Bench of this Court in Union of India v. K.V. Jankiraman [(1991) 4 SCC 109 : 1991 SCC (L&S) 387 : (1993) 23 ATC 322] . At SCC p. 121 in para 26 P.B. Sawant, J., writing the judgment for the Court in the aforesaid case further observed:

"26. ... However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee, etc. In such circumstances, the authorities concerned must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is

to undermine discipline in the administration and jeopardise public interests."

11. To a similar effect is the judgment of the Hon'ble

Supreme Court reported in K. Ponnamma v. State of

Kerala2.

12. If the case is examined against this legal position and

the rule position, it is clear that the question whether the

petitioner will be entitled to full pay allowances etc., is not

capable of being decided as of now and certainly not by this

Court in contempt proceedings. In view of this it cannot be

said; as on date that there is willful disobedience of this

Courts order.

13. Para 17 of the judgment reported in Ashok Paper

Kamgar Union v. Dharam Godha3, defines 'willful

disobedience' as follows:

17. Section 2(b) of the Contempt of Courts Act defines "civil contempt" and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. "Wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent

(1997) 9 SCC 36

(2003) 11 SCC 1

to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case......"

14. To the same effect is the decision in Ram Kishan v.

Tarun Bajaj4. Paras 12 and 15 of this judgment are

reproduced hereunder:

12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is "wilful". The word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. "Wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability.

(2014) 16 SCC 204

Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct."

15. It is well-settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable. The effect and purport of the order is to be taken into consideration and the same must be read in its entirety. Therefore, the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act.

15. After giving anxious considerations to the submissions

and examining the facts of the case against the backdrop of

the settled case law on the subject, of which a few are

reproduced earlier, this Court is of the opinion that there is

no willful disobedience of this Courts order at this stage.

Therefore, as the issue is yet to receive a quietus, it cannot be

said at this stage that the respondent is guilty of willful

disobedience.

16. Hence, the Contempt Case is dismissed. This order will

not prevent or come in the way of the petitioner moving an

application later if there is willful disobedience of this Courts

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