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2020 DIGILAW 167 (AP)

J. Vinod Kumar v. State of Andhra Pradesh

2020-02-28

T.RAJANI

body2020
ORDER : T. Rajani, J. 1. Seeking to declare the proceedings issued by the 2nd respondent in Rc. No. V1/20026/6/2020, dated 31.1.2020, suspending the petitioners herein, as illegal and arbitrary, these writ petitions are filed. 2. Subject-matter in these writ petitions being same, these writ petitions are disposed of by this common order. For the sake of convenience, the petitioner in WP No. 2623 of 2020 will be hereinafter referred to as 'P1' and the petitioner in WP No. 2654 of 2020 will be hereinafter referred to as 'P2' and the respondents in these writ petitions, being the same, are referred to as R1 and R2 respectively. 3. P1 and P2 were served with the impugned proceedings, dated 31.1.2020, which were to the effect of placing them under suspension pending enquiry. P1 is working as Assistant Commissioner, Endowments Department, Visakhapatnam. P2 is working as Executive Officer in the same department in the same place. As an administrative head of the 6(c) institutions and temples in the Visakhapatnam District, P1 has issued proceedings in Rc. No. A1/182/2020, dated 17.1.2020 directing P2 of Langarkhana Choultry, Bheemunipatnam, Visakhapatnam, to lease out the non-income generating lands in tender-cum-public auction for a period of 11 years in G.O. Ms. No. 426, dated 9.11.2015 to G.O. Ms. No. 866, dated 8.8.2003. P2 issued auction notification in Vaartha Telugu Daily Newspaper on 18.1.2020 inviting the general public to participate in the public auction. Thereafter, the 2nd respondent issued Circular in Rc. No. J1/894/2019, dated 28.1.2020, issuing some guidelines for conducting auction and documentation. Thereafter, P2 issued another notification on 29.1.2020 in the Vaartha Telugu Daily Newspaper informing the general public regarding the postponing of the auction perpetually in view of the circular instructions. While the matter stood thus, based on the newspaper article, the impugned proceedings are issued by the 2nd respondent on 31.1.2020. The entire lapses mentioned in the said impugned order are absurd and are invented only to take vengeance against the petitioner. The income of the institution is Rs. 1,05,000/- and it is a 6(c) institution under the administrative control of Assistant Commissioner and as such, P1 is the competent authority to issue directions to the institutions as per Section 11 of the Act and to grant permission to conduct tender-cum-public auction of the lands. The income of the institution is Rs. 1,05,000/- and it is a 6(c) institution under the administrative control of Assistant Commissioner and as such, P1 is the competent authority to issue directions to the institutions as per Section 11 of the Act and to grant permission to conduct tender-cum-public auction of the lands. He has not mentioned the extent of land and P2 has to decide the extent of land as per the Rules. A message was sent on whatsapp of P1 on 5.1.2020 that in ten days the guidelines and documentation will be released relating to auction and that after waiting for 12 days he granted permission to conduct e-tender-cum public auction. Even in the paper publication no conditions were mentioned. In the entire rules or the Act 30/87 it is not mentioned that permission of the Commissioner is necessary for conducting auction. Permission was granted on 17.1.2020 and paper publication was issued on 18.1.2020 as such following the circular dated 28.1.2020 does not arise. The Government has issued a Memo dated 31.1.2020 observing that the intention of P1 and P2 is mala fide and a person can be punished only for the actions and not for the intentions. Even otherwise, judging the intentions in a negative way is absurd. Hence these writ petitions seeking the aforementioned reliefs. 4. R1 and R2 filed counter denying the averments in the writ petitions and contending that P1 has issued the proceedings in Rc. No. A1/182/2020 dated 17.1.2020 directing P2 to lease out Acs. 67-00 cents of land in Survey No. 61/1 of Bheemunipatnam (T&M), belonging to the subject Choultry in tender-cum-public auction for a period of 11 years in violation of the Act 30/1987 and the Rules made thereunder. P2 in turn has issued auction notification in Vaartha Newspaper by fixing the date of auction as 3.2.2020 in the premises of Sri Polamamba Kothamma Ammavari Temple, Sangivalasa. Thereafter, another notification was issued by P2 on 29.1.2020 post-poning the auction perpetually. A news item was published in the main edition of Eenadu Daily Newspaper as 'Bheemililo Bhucholu'. On the same day, the Government Memo No. REV-01/Endw/71.2020, Revenue (Endts-II) Department, dated 31.1.2020 was received. A circular was issued by the Commissioner suspending P1 and P2 pending enquiry into the charges in view of the gravity of the issue. A news item was published in the main edition of Eenadu Daily Newspaper as 'Bheemililo Bhucholu'. On the same day, the Government Memo No. REV-01/Endw/71.2020, Revenue (Endts-II) Department, dated 31.1.2020 was received. A circular was issued by the Commissioner suspending P1 and P2 pending enquiry into the charges in view of the gravity of the issue. As per APC & HR I & E., immovable properties and other right (other than Agricultural Lands) leases and licenses Rules, 2003 (for short, "the Rules"), G.O.Ms. No. 866, Revenue (Endt-I) Dept, dated 8.8.2003, as amended by G.O. Ms. No. 426, dated 9.11.2015, the Executive Authorities shall call for tender or auction electronically also if the value of the transaction exceeds Rs. 10 lakhs. But in this case no such tender was called for electronically, thereby violating Rule 3(i) made as per G.O.Ms. No. 426, dated 9.11.2015. So also no upset price is fixed as required under Rule 4(2)(A), which specifies that before going for tender-cum-public auction, the Executive Authority has to fix up the upset price based on the prevailing market conditions and the same shall be mentioned in the public notice. As per Rule 3(2) and its proviso, the place of auction shall be held at the place where the properties are situated or right exists. In case the auction is to be conducted otherwise than at such place, a permission from the competent authority is to be obtained, but no such permission is obtained in this case. No doubt as per G.O.Ms. No. 426, dated 9.11.2015, no lease or license of immovable property shall be granted for a period exceeding 11 years, but by the head office Memo vide No. L1/7155/2916 dated 13.3.2016, Commissioner of Endowments specifically instructed all the Regional Joint Commissioners of Endowments Department, not to accord permission or to notify any agricultural lands and non-agricultural lands for a period of eleven years in tender-cum-public auction without any authentic orders from the Commissioner of Endowments. P1 and P2 have deliberately violated the instructions given by the Commissioner during the meeting held on 3.1.2020 with all District Assistant Commissioner to initiate proposals for bidding for 11 years licenses only after receiving detailed conditions and guidelines from the head office. P2, in collusion with P1, has issued the publication. Hence, they were kept under suspension, by virtue of the impugned proceedings, which needs no interference. 5. P2, in collusion with P1, has issued the publication. Hence, they were kept under suspension, by virtue of the impugned proceedings, which needs no interference. 5. Heard Sri Satya Prasad, learned Senior Counsel appearing for the petitioners, and the Government Pleader for Endowments. 6. The admitted facts are that there are instructions given by way of G.O.Ms. No. 426, dated 9.11.2015 that the executive authorities shall also call for tender or auction electronically if the value of the auction exceeds Rs. 10 lakhs and that the value in this case is above Rs. 10 lakhs. It is also not disputed that no upset price was fixed as required by the said GO, under Clause 2(A), which specifies that before going for tender cum public auction, the executive authority has to fix upset price basing on the prevailing market conditions. 7. The Counsel for the petitioners contends that since the notification given by P2 is cancelled on receiving instructions from the Commissioner, no mala fides can be attributed to the petitioners. He further submits that the petitioners followed all the Rules and got the notification published for auction. A whats-app message was received on the mobile of P1, which reads as follows: "We have discussed Auction conditions for 11 years license of vacant sites and proforma license deed during our review meeting on 3.1.2020. They are under preparation and will be issued within 10 days after thorough discussion at Government level also. All Eos are instructed to wait for the uniform conditions and documentation, so as to protect the property and to get fair rent/fees." 8. The contention of the petitioners' Counsel is that they have waited for 12 days in compliance of the directions given through whats-app message. But it goes without saying that the second part of the whats-app message is not complied with since it specifies that all EOs have to wait for the uniform conditions and documentation so as to protect and get fair rent. Without waiting for such instructions to come forth, the notification was issued after lapse of 10 days. The auction did not materialise since the instructions were received subsequently due to which the notification had to be cancelled. Without waiting for such instructions to come forth, the notification was issued after lapse of 10 days. The auction did not materialise since the instructions were received subsequently due to which the notification had to be cancelled. But by mere cancellation of the notification, which the petitioners are forced to do because of the instructions that came forth, the petitioners cannot hold the said act as proof of their innocence and bona fides. 9. The charge-sheet, which was issued against the petitioners, is for colluding with each other and conducting tender-cum-public auction. The main grievance raised against the impugned order is with regard to it stating that the petitioners have conducted tender-cum-public auction, whereas the fact remains that the notification is subsequently cancelled due to which auction was not conducted. The undisputed fact is that the subsequent notification was cancelled by the petitioners. But there can be no demur in holding that the petitioners have violated the instructions given by the superiors i.e., the Commissioner, to wait till they receive uniform instructions, which was in the interest of the larger society. It is from the act of the petitioners in issuing the notification immediately after completion of ten days that the respondents gathered a mala fide intention on the part of the petitioners, which cannot be said to be incorrect. 10. The Counsel for the petitioners relies on a judgment of the Apex Court reported in Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147, which is to the effect that the suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of bis position. The Court observed that during suspension, the relationship of master and servant continues between the employer and employer. However, the employee is forbidden to perform his official duties. Thus, a suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in the strict legal sense. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the Criminal Court, but it cannot be treated as a punishment even by any stretch of imagination in the strict legal sense. The observations of the Supreme Court would in fact support the act of the respondents, since suspension was not considered as a punishment. The Supreme Court relied on its earlier ruling reported in State of Orissa v. Bimal Kumar Mohanty, (1994) 4 SCC 126 , wherein the Court observed that the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed of the delinquent employee. The Supreme Court also relied on the rulings in Balvantrai Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800 and R.P. Kapur v. Union of India, AIR 1964 SC 787 . The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The Supreme Court summarised the law on the issue holding that the suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e., serious act of omission or commission and the nature of evidence available and it cannot be actuated by mala fide or arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also held to be a relevant and determining factor. Effect on public interest due to the employee's continuation in office is also held to be a relevant and determining factor. It further held that, however, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e., removal or dismissal from service or reduction in rank, etc. 11. The facts on hand are sufficient to infer that the petitioners had issued the notification post haste with a pretence of not understanding the second part of the whats-app message sent to them. Even if the whats-app message is accepted as not giving proper understanding, it can be seen that the conditions for issuing the notification are not complied with. The powers and functions of the Assistant Commissioner are specified in Section 11 of the Endowments Act, wherein the Assistant Commissioner can exercise the powers conferred on him and have to perform the functions entrusted to him. However, the powers shall relate to the Institutions and Endowments included in the list published in clause (c) of Section 6. It does not mean that all the powers in respect of the Institutions and Endowments included in the list published under clause (c) of Section 6 can be exercised by the Assistant Commissioner. The interpretation placed on the above provisions, by the petitioners' Counsel, does not project correct understanding. Hence, it cannot be said that the petitioners have innocently issued the 2nd notification. Moreover, the Immovable Properties and Other Rights (Other than Agricultural Lands) Lease and Licences Rules, 2003 clearly specify that for a property of more than one lakh value, permission of the Commissioner is required. That apart, in the minutes of the meeting held by the Commissioner on 3.1.2020, which was attended by P1, it is clearly informed that no officer shall take up any action for licensing out properties for 11 years period, till final guidelines are issued. Hence, the petitioners cannot feign ignorance. 12. But, however, the impugned order cannot be sustained for one reason. It stands on the premise of an understanding that the tender-cum-public auction is already conducted, whereas admittedly, the tender-cum-public auction was not conducted. The proceedings dated 31.1.2020 spell that intention on the part of the petitioners was found to be mala fide, as they issued notification without permission from the Commissioner. It stands on the premise of an understanding that the tender-cum-public auction is already conducted, whereas admittedly, the tender-cum-public auction was not conducted. The proceedings dated 31.1.2020 spell that intention on the part of the petitioners was found to be mala fide, as they issued notification without permission from the Commissioner. But somehow the impugned order spells that the action is taken for conducting the auction. 13. Hence, in view of the above circumstances, this Court, to meet the ends of legality of an action, sets aside the impugned order, giving liberty to the respondents to issue a fresh order based on the correct facts, if they feel necessary. The merits of the other contentions are hence not discussed. 14. With the above observations, the writ petitions are allowed and the proceedings issued by the 2nd respondent in Rc. No. V1/20026/6/2020, dated 31.1.2020, are hereby set aside, giving liberty to the respondents to issue a fresh order based on correct facts, if they feel necessary. 15. As a sequel, the miscellaneous applications pending, if any, shall stand closed.