Telangana High Court

K.Ramachander, Knagar. vs M.D. Apsrtc, Hyd And Another on 5 October, 2023

Bench: Nagesh Bheemapaka

          HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                WRIT PETITION No. 19932 OF 2009

     ORDER:

This Writ Petition is filed seeking a mandamus to

declare the office order No. P2/255(3)/06-WM-KR dated

01.04.2009 issued by the 2nd respondent whereunder treating the

suspension period w.e.f. 17.08.2006 to 08.12.2006 and treating

the period as 'not on duty' as well as not paying the increments for

the years 2007 & 2009, incentive and reconciliation amounts till

date to the petitioner as illegal, arbitrary, null and void and

consequently direct the respondents to treat the petitioner's

suspension period as on duty and pay the suspension allowance,

increments for the years 2007 & 2009, incentive and reconciliation

amounts payable to petitioner.

2. It is stated that petitioner while was working as

Mechanic Grade-I at Zonal Workshop, Karimnagar one Sri

Anumula Achaiah, in intoxication, consumed poison and while

undergoing treatment, died on 10.08.2006. Due to union rivalry

and pressure of union leaders, the deceased gave dying

declaration that due to pressure of petitioner, he consumed

poison. Basing on the said complaint, II Town Police, Karimnagar

lodged FIR No. 221 of 2006 for the offence under Section 306 IPC.

Consequently, the 3rd respondent placed him under suspension

vide order dated 22.08.2006 alleging as under:

" The Sub-Inspector of Police, Karimnagar Town Police Station, Karimnagar through the report submitted by him through Lr.No. C.No. 221/Crime-P2/2006, dated 21.08.2006 stating that I was taken into custody and arrested on 17.08.2006 and sent to judicial remand by the Police of II Town / Karimnagar against the allegations of harassment and torture by you which caused to attempt suicide of Sri A. Achaiah, E.301353 and Shramik of Zonal Workshop / Karimnagar on 30.07.2006 afternoon and later expired on 10.08.2006. A case in FIR No. 221 / 2006 and IPC Sec. 306 dated 30.07.2006 has been registered against you by Karimnagar II Town Police Station.

Hence, in terms of Regulation 18(2) of APSRTC Employees Classification: Control and Appeal (CC&A) Regulations, 1967, you are deemed to have been placed under suspension w.e.f. 17.08.2006 i.e. from the date of your arrest by the police, pending further action as per the Court judgment.

You need not attend duty during the period of suspension. You will be paid subsistence allowance during the period of suspension as per the Rules in force."

The case of the petitioner is that he applied for leave

from 10.08.2006 to 12.08.2006 due to back pain. 13th August

2006 being Sunday, due to severe back pain, he extended leave

from 14.08.2006 to 19.08.2006. Again on 18.08.2009, he sent

leave Application through courier service stating that he was

arrested by police in a false case on 18.08.2006 and was

remanded to judicial custody. He would obtain bail within a

week, hence sought extension of leave from 20.08.2006 to

26.08.2006 with permission to leave headquarters. However, the

Assistant Works Manager-I endorsed that 'the leave application

is received on 22.08.2006 by 17.00 hours and he was already

placed under suspension w.e.f. 17.08.2006. Hence, leave not

considered'. As his leave Application was not reached in time,

petitioner approached the District Consumer Disputes

Redressal Forum, Karimnagar vide Consumer Complaint No. 32

of 2007 seeking compensation. The said Application was allowed

on 02.08.2007 directing the couriers to pay Rs.5,000/- towards

compensation and damages with 9% interest thereon from the

date of filing the Petition i.e. 01.05.2007 and costs of Rs.1,000/-

and he received a cheque for Rs.6200/- also.

It is further stated that he filed Criminal Petition

No. 2043 of 2007 before the erstwhile High Court of Andhra

Pradesh to quash the criminal proceedings and obtained stay.

Hence, suspension was raised and he was transferred to

Godavarikhani Depot. Finally, by order dated 28.02.2008,

proceedings in Crime No. 221 of 2006 was quashed. However,

the Assistant Works Manager-1, ZWS/Karimnagar issued the

impugned proceedings stating that suspension period be treated

as 'not on duty' for gratuity and leave encashment.

Petitioner relies on para 8 of the guidelines issued

as per Circular No. PD-24/1978-79, dated 01.06.1978, which

reads as under:

" If any employee is detained by the police for an offence, not connected with the departmental duties, he need not be suspended and the period of his absence may be treated as leave, due on an application received from such employee. But, if there is a prima facie case, which warrants suspension under the circumstances as aforesaid, he may be suspended right from the date of detention.

Further, Circular No. XII/1988/IED dated

02.07.1988 issued by the Managing Director of APSRTC,

paragraphs 3 and 4 of Eligibility of PIB to Employees in case of

transfer which reads as under:

" In case an employee who has worked in a section for more than 15 days in a production month and subsequently transferred to other places (outside the workshop) on administrative grounds, he should be included in the base production of the section and is eligible for the incentive of the section in which he has worked."

Petitioner submits that he worked as Mechanic-

Grade I in Engine Section in ZWS/ Karimnagar nearly six years

till his transfer to Godavarikhani on 08.12.2006 and again he

was transferred to ZWS/Karimnagar as Mechanic on

06.03.2009, hence, he is entitled to incentive as per the above

circular, however, the Corporation has not paid the suspension

period amount, increment for 2007 and 2009, incentive amount

and reconciliation amount.

3. Learned counsel for petitioner Mrs. Kameshwari

primarily contends that when an order of suspension comes to

an end with the order of acquittal or conviction into which the

order of suspension merges, petitioner is entitled for the full

remuneration. In this context, she places reliance on the

judgment of the Hon'ble Apex Court in Brahma Chandra

Gupta v. Union of India 1 and the Full Bench judgment of the

erstwhile Andhra Pradesh High Court in The District Manager,

A.P. State Road Transport Corporation, Bhimavaram v.

Labour Court, Guntur 2.

4. The case law on which learned counsel placed

reliance is very clear and it fortifies the contention of learned

counsel for petitioner. In the light of the same, this Court is not

inclined to go into the merits of the matter.

5. In The District Manager, A.P. State Road

Transport Corporation, Bhimavaram's case (supra), a Full

Bench of this Court held as under:

" Broadly speaking, Regulation 18 supplies the legal authority to the Corporation to suspend its employees while Regulation 20 obliges the Corporation to pay the suspended employee what is called "subsistence allowance" during the period of suspension. But these two Regulations make several distinction between different circumstances.

For example, Regulation 18 (1) deals with suspension pending investigation into grave charges (a) or any criminal offence (b) whereas

(1984) 2 Supreme Court Cases 433

AIR 1980 Andhra Pradesh 132

Regulation 18 (2) provides for a deemed suspension where an employee is detained in custody for a period exceeding forty right hours. Correspondingly , Regulation 20 (1) provides for the payment of subsistence allowance to a suspended employee. However, Regulation 20 (3) denies the right to subsistence or compensatory allowance to an employee where he had been suspended under Regulation 18(1) (b). The legal effect of these Regulation may be stated in general terms as follows:- While the normal rule is the that Corporation should pay subsistence allowance to an pay subsistence allowance to an employee suspended, in specially enumerated classes of cases a suspended employee loses his right to subsistence allowance.

11. The second respondent has been suspended pending enquiry into a criminal offence and therefore, his suspension squarely falls under Regulation 18 (1) (b) . The refusal; to pay subsistence allowance to the second respondent during his period of suspension is therefore clearly sanctioned by Regulation 20, clause (3) of the Corporation. But the question still remains and that is what the Labour Court decided- whether the second respondent on his acquittal would be entitled for full remuneration for the period of suspension. It is necessary to emphasize that the order of suspension passed by the corporation is only pending enquiry into criminal offence and it merges with the order of acquittal or discharge. In other words, it is merely an administrative measure and is not an order of punishment passed by the Corporation against the second respondent on the basis of any evidence or trial. In fact, we cannot treat the order of suspension as an order of punishment as such a characterization of the order of suspension would render that order in valid and ultra vires of the powers of the Corporation, for an order of punishment cannot be passed against the second respondent expect by following the principles of natural justice. In law such an interim suspension can never be a punishment imposed for proved misconduct. It is only proper that such an order is not allowed to operate as a punishment. It follows therefore, that consistently with this inalienable legal character of interim suspension we must hold that the second respondent is entitled to be compensated for the period his suspension. This follows therefore, that consistently with this inalienable legal character of interim suspension we must hold that the second

respondent is entitled to be compensated for the period of his suspension. This conclusion becomes unavoidable and inescapable so long as we hold the interim suspension to be not a measure of punishment and it is not ultra vires of the powers of the Corporation. The next question is, to what extent if any this legal position is altered by the statutory regulation? This right of the second respondent to get his full remuneration for the period of his suspension cannot, in our opinion, be affected in anywise by regulation 20. Regulation 20 only deals with the Corporation's duty to pay subsistence allowance and its right to refuse to pay subsistence allowance during the period, of suspension. Regulation 29 does not govern the post- acquittal period , when once the order of suspension comes to an end with the order of acquittal conviction into which the order of suspension merges (see Om Prakash v. State of U. P., (1955 ) 2 SCR 91 and Narayan v. State of Orissa , ) Regulation 20 ceases to operate and govern the rights of the parties. Where an employees has been found in a regular trial, not to be guilty of any misconduct to commission of any crime or other misconduct, it will be wholly unreasonable to hold that the employee should still suffer the loss of remuneration and other benefits for the period of his suspension which now merges in his order of acquittal. It amounts to sanctioning and awarding punishment to an innocent party. Our constitution cannot be the source of this gross injustice. Regulation 18, cl. (7) clearly shows that during the period of suspension the second respondent continues to be servant of the corporation. He cannot leave the headquarters and employ himself under any other master. would it not then be wholly unjust to deny the employee his remuneration for that period? "The Government may only act fairly and reasonably" (see Justice Marshall in Board of Regents v. Roth, (1972 ) 33 L. Ed 548 at p .

567. The right to public employment is undoubtedly, as noted above , a new form of property. It is not only a vast spruce of patronage for the Government but is also a great source of living and happiness to our unemployed millions. It is , as Justice Marshall stated in the above mentioned Roth's case the "very essence of the personal freedom and opportunity" secured by the 14 the Amendment of the constitution" It is therefore clear to us that making of such a law denying the acquitted employee his remuneration of the period of suspension would be beyond the legislative competence such a law would be in violation of Arts. 14,

16, and 21 of our constitution. Our liberal and democratic constitution cannot be construed objectives, to be a sources of conferment of such an arbitrary power on the Government.

In Brahma Chandra Gupta's case (supra), the

Hon'ble Apex Court ultimately held as follows:

" ........... Keeping in view the facts of the case that the appellant was never hauled up for departmental enquiry; that he was prosecuted and has been ultimately acquitted, and on being acquitted he was reinstated and was paid full salary for the period commencing from his acquittal, and further that even for the period in question the concerned authority has not held that the suspension was wholly justified because 3/4th of the salary is ordered to be paid, we are of the opinion that the approach of the trial court was correct and unassailable. The learned trial Judge on appreciation of facts found that this is a case in which full amount of salary should have been paid to the appellant on his reinstatement for the entire period. We accept that as the correct approach. We accordingly allow this appeal, set aside the judgment of first appellate court as well of the High Court and restore the one of trial Court with this modification that the amount decreed shall be paid with 9% interest p.a. from the date of suit till realisation with costs throughout".

6. In this case, petitioner was charged for the offence

under Section 306 IPC in Crime No. 221 of 2006 on the file of II

Town Police Station, Karimnagar and subsequently, was

discharged in Criminal Petition No. 2043 of 2007 and the said

order has become final. In view of the legal position discussed

supra, where an employees has been found not to be guilty of

commission of any crime or other misconduct, it will be wholly

unreasonable to hold that he / she should still suffer the loss of

remuneration and other benefits for the period of suspension

which now merges in the order of acquittal / discharge.

Admittedly, during the period of suspension, petitioner

continues to be servant of the Corporation. He did not leave the