Andhra Pradesh High Court - Amravati

Batchala Venkata Rao vs The Director General Of Police on 19 October, 2022

        HONOURABLE SMT. JUSTICE V.SUJATHA

             WRIT PETITION No.17214 of 2021

ORDER:

The present Writ Petition came to be filed under Article

226 of the Constitution of India seeking the following relief:-

"to issue any writ or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in extending the suspension period until further orders by way of impugned orders vide Cr.No.948/2021/CSEB/B1-1, dated 27.10.2021 without serving currency of charge sheet for more than three months which is contrary to the principles laid down by the Hon'ble Apex Court in the case of Ajay Kumar Choudhary Vs Union of India and another reported in 2015 (2) SCR 415 as illegal, arbitrary and violation of principles of natural justice and also Articles 14, 19, 21 and 300-A of the Constitution of India and consequently direct the respondents to reinstate the petitioner forthwith into the services and pass such order or orders.....".

2. The facts of the case are that the petitioner was appointed

as Inspector of Special Enforcement Bureau in Andhra Pradesh

Excise Department on 01.11.2007. While so, on 27.03.2021, a

case in F.I.R.No.04/RCT-OGL/2021 of ACB Police Station,

Ongole, Prakasam District, was registered against the petitioner

for the offences punishable under Section 7(a) of Prevention of

Corruption (Amendment) Act, 2018. Thereafter, vide

proceedings dated 01.04.2021, the 2nd respondent herein in

exercise of the powers conferred by sub-rule (2) (a) of Rule 8 of

the Andhra Pradesh Civil Services (CC&A) Rules, 1991, placed

the petitioner under suspension with effect from 28.03.2021 i.e.

the date of his remand to judicial custody and directed that the

petitioner shall continue to be under suspension in the public

interest till the conclusion of the disciplinary proceedings /

termination of all the proceedings relating to the criminal

charges.

3. Pending the writ petition, the 2nd respondent vide orders

dated 27.10.2021, has extended the suspension period of the

petitioner until further orders. Thereafter, the petitioner filed

I.A.No.1 of 2022 seeking amendment of the prayer challenging

the subsequent order dated 27.10.2021 passed by the 2nd

respondent, wherein the 2nd respondent has extended the

suspension period until further orders, which was allowed by

this Court on 20.04.2022.

4. The 2nd respondent filed counter stating that the petitioner

was involved in ACB trap case and as such, he was placed under

suspension with effect from 28.03.2021. The Government vide

G.O.Ms.No.86, GA(Ser-C) Department, dated 08.03.1994 with

regard to suspension orders issued the following guidelines

against the Government Servants :-

i) The order of suspension against a Government Servant shall be reviewed at the end of six months.

ii) The appropriate reviewing authority should take decision regarding continuance or otherwise of the employee concerned under suspension, with reference to the nature of charges, where delays in finalization of enquiry proceedings cannot be attributed to the employee or when there is no interference from the employee in facilitating the enquiry.

iii) An outer limit be provided as two years from the date of suspension, failing which public servant may have to be reinstated without prejudice to the proceedings being perused. However, in exemptional cases, considering the gravity of the charges, one could be continued under suspension even beyond a period of two years, especially in cases where there is deliberate delay caused due to non-co-operation of the employee concerned.

iv) The concerned Principal Secretary/ Secretary in the Department should review the suspension cases of their department at an interval of six months with the representative of ACB, if the proceedings arose of the investigations conducted by the ACB and make suitable recommendations as to the desirability or otherwise recommendations continuance of the officers under suspension.

As per the counter of the 2nd respondent, in the light of the

above Government instructions, the petitioner's suspension

period was continued, as it could not be reviewed by the ACB /

Government after expiry of six months.

5. The respondents 1 and 3 have also filed their counter

reiterating the same facts as stated by the 2nd respondent, but

however contended that Rule 10(7) of Central Civil Services

(CCA) Rules, 1965 provide that an order of suspension made or

deemed to have been made under sub rule (1) or (2) of Rule 10

shall not be valid after period of 90 days unless it is extended,

after review, for a further period before expiry of 90 days. Under

the proviso thereto, it is provided that no such review of

suspension is necessary in case of deemed suspension under

sub rule (2), if the Government servant continued to be under

suspension at the time of completion of 90 days of suspension,

in such case.

6. The respondents 1 and 3 further submitted that recently

similar issue arose before this Court, wherein this Court

observed that as per Rule 8 of APCS (CC&A) Rules, 1991 under

Rule 8(2)(a), a Government servant shall be deemed to have been

placed under suspension from the date of his detention, if he is

detained in custody for a period exceeding 48 hours. The

Division Bench of this Court also while referring to the decisions

of Hon'ble Supreme Court extracted the following "disciplinary

proceedings, if any, initiated against the Government servant

was recognized." It was further observed by this Court that

"....however, when a smaller bench of the Supreme Court lays

down a proposition contrary to and without noticing the ratio

decidendi of the earlier larger benches, such a decision will not

become the law declared by the Supreme Court so as to have a

binding effect under Article 141 of the constitution on all the

Courts within the country....".

7. The respondents 1 and 3 further submitted that this Court

in the said issue further held after considering the provisions of

Rule 8 of APCS (CC&A) Rules, 1991 that the State Rules did not

mandate the competent authority who placed the petitioner

under suspension to review or revoke suspension order soon

after material witnesses were examined. The State Government

issued executive instructions which required the disciplinary

authority to review the cases of suspension after every six

months. The respondents 1 and 3 also narrated the entire

incident and reasons for suspension of the petitioner.

8. Heard Sri Jada Sravan Kumar, learned counsel for the

petitioner, learned Government Pleader for Services-I for the 4th

respondent and Sri S.M. Subhani, learned Standing Counsel-

cum-Special Public Prosecutor for ACB for respondents 1 to 3.

9. It may be relevant to refer Rule 10 (1) and (2) of the

Central Civil Services (CCA) Rules, 1965, which reads as follows:

"10. Suspension

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction

and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account."

Further, Rule 10(7) of the Central Civil Services (CCA)

Rules, 1965 reads as follows:

"An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :

Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub- rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."

10. Learned counsel for the petitioner would submit that as

per G.O.Ms.No.86, GA(Ser-C) Department, dated 08.03.1994,

wherein the Government has issued instructions directing that

the employees, who are under suspension for a period exceeding

two years, shall be reinstated pending finalization of the

disciplinary proceedings / criminal case against him. It is also

the case of the petitioner that the 2nd respondent without

obtaining approval from the Government, cannot suo motu

extend the period of suspension.

11. Learned counsel for the petitioner relied upon a judgment

of Supreme Court of India (From Madras) (D.B.) in Suganthi

Suresh Kumar vs. Jagdeeshan1, wherein it was held at para

Nos.9 and 11 as follows :-

"9. It is impermissible for the High Court to overrule the decision of the apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.

11. .......The said legal position would continue to hold good until it is overruled by larger Bench of this court. Hence learned single judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this Court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said judge in Rajendran v. Jose, (2001) 3 Kerala Law Times 431. It is unfortunate that when the Sessions judge has correctly done a course in accordance with the discipline the Single judge of the High Court has incorrectly reversed it."

12. Learned counsel for the petitioner also relied upon a

judgment of Supreme Court of India (From Andhra Pradesh)

(F.B.) in South Central Railway Employees Co-op Credit

2002 Law Suit (SC) 49

Society Employees Union vs. B.Yashodabai and others2,

wherein it was held at para Nos.16 to 19 as follows :-

"16. We are of the view that it was not open to the High Court to hold that the judgment delivered by this Court in C.A. No.4343 of 1988 was per incuriam.

17. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when C.A. No.4343 of 1988 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be re- written and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the Subordinate Courts would also be violating the provisions of Article 141 of the Constitution of India.

18. We do not want to go into the arguments advanced by the learned counsel appearing for the respondents before the High Court for the simple reason that it was not open to them to advance any argument which would run contrary to the judgment delivered by this Court in C.A. No.4343 of 1988. In our opinion, the High Court did something which would be like setting aside a decree in the execution proceedings !

19. For the reasons stated hereinabove, we are of the view that the learned Single Judge as well as the Division Bench of the High Court committed a serious error in law by not following the judgment delivered by this Court and by quashing and setting aside the order

2014 Law Suit (SC) 1045

dated 12th June, 1998, which had been issued to the concerned employees so as to give effect to the Judgment dated 13th January, 1988 delivered by this Court in C.A. No.4343 of 1988."

13. Learned counsel for the petitioner further relied upon a

judgment of Supreme Court of India (From Delhi) (D.B.) in

O.P.Gupta vs. Union of India3, wherein it was held at para

No.22 as follows :-

"22A.The public interest in maintaining the efficiency of the services requires that civil servants should not be unfairly dealt with. The Government must view with concern that a departmental inquiry against the civil servant should have been kept alive for so long as 20 years or more and that he should have been placed under suspension without any lawful justification for as many as 11 years, without any progress being made in the departmental inquiry. It should also view with concern that a decision should have been taken by the competent authority to enforce the bar under FR 25 against the civil servant long after his retirement with a view to cause him financial loss. Such a course not only demoralises the services but virtually ruins the career of the delinquent officer as a government servant apart from subjecting him to untold hardship and humiliation. We hope and trust that the Government in future would ensure that departmental proceedings are concluded with reasonable diligence and not allowed to be protracted unnecessarily. The Government should also view with concern that there should be an attempt on the part of the competent authority to enforce the bar against a civil servant under FR 25 long after his retirement without affording him an opportunity of a hearing. It comes of ill-grace from the Government to have defeated the just claim of the appellant on technical pleas."

1987 Law Suit SC 671

14. Learned counsel for the petitioner further relied upon a

judgment of Supreme Court of India (D.B.) in Ajay Kumar

Choudhary vs. Union of India and another4, wherein it was

held at para No.14 as follows :-

"We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge sheet is served a reasoned order must be passed for the extension of the suspension........."

15. As seen from the record, admittedly, the approval from the

Government was not obtained before extending the suspension

period of the petitioner until further orders and as per

G.O.Ms.No.86, GA(Ser-C) Department, dated 08.03.1994, it is

very clear that the maximum limit for ordering an employee

under suspension is two years and thereafter he has to be

reinstated pending disciplinary proceedings. But in the present

case, it is very clear that the suspension period of the petitioner

has been extended until further orders vide impugned orders

dated 27.10.2021, which in fact is bad in law and also contrary

to G.O.Ms.No.86. Pending the writ petition, the petitioner filed

I.A.No.2 of 2022 seeking to implead the Government as