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2020 DIGILAW 858 (AP)

M. Phanidhar Prasad v. State of Andhra Pradesh

2020-12-23

M.SATYANARAYANA MURTHY

body2020
ORDER : M. Satyanarayana Murthy, J. 1. This petition, under Article 226 of the Constitution of India, is filed to issue a direction in the nature of Mandamus declaring the action of the 3rd respondent in issuing Rc. No. A1/1830/2019, dated 12.01.2020, in continuing the petitioner's suspension beyond six months until conclusion of the disciplinary proceedings and termination of all the proceedings in the criminal charges, as illegal and arbitrary. 2. The petitioner is working as Assistant Executive Officer in the establishment of the 3rd respondent-Temple. While so, one T. Srinivas, Superintendent of the 3rd respondent-Temple, attempted to be murdered by one Nagesh, Mujahitulla and Khaja Hussain Shaik due to personal disputes among themselves on 11.03.2019, a crime was registered in Crime No. 7 of 2019 of Srisailam Police Station. After he was discharged from hospital, said T. Srinivas due to the rivalry regarding seniority, implicated this petitioner also along with others on 22.04.2019 in the complaint. Thereafter, this petitioner was arrested and lodged in jail on 22.04.2019 and was released on bail on 22.05.2019. As the petitioner was in jail for more than 24 hours, he was kept under suspension and the same was challenged by the petitioner by way of W.P. No. 1674 of 2019 and it is pending for adjudication. It is further submitted that the petitioner made a representation, dated 29.05.2019, for cancellation of the suspension order and for reinstatement, but the same has not been considered and this petitioner filed another W.P. No. 8072 of 2019 and the same was disposed of on 28.06.2019 with a direction to consider his representation. Thereafter, the representation was rejected by order, dated 27.11.2019. Challenging this order, the petitioner filed W.P. No. 407 of 2012 and the same is pending adjudication. While the matter stood thus, the 3rd respondent issued impugned proceedings in Rc. No. A1/1830/2019, dated 12.01.2020, to continue the petitioner's suspension beyond six months until conclusion of the disciplinary proceedings or till termination of the proceedings before the criminal court. The order is challenged on the ground that continuation of suspension beyond six months is contrary to law as laid down by the apex court in Ajay Kumar Chowdary vs. Union of India : 2015 Law Suit (SC) 177. The order is challenged on the ground that continuation of suspension beyond six months is contrary to law as laid down by the apex court in Ajay Kumar Chowdary vs. Union of India : 2015 Law Suit (SC) 177. Thereby, the order impugned in the writ petition to continue the suspension order of this petitioner beyond six months is contrary to law and prays to set aside the same. 3. The respondent filed counter admitting issuance of impugned order as the petitioner is arrayed as accused in Crime No. 7 of 2019 of Srisailam Police Station for the offence under Sections 307, 120(b), 109 r/w 34 IPC. This petitioner is arrayed as A9 in the above crime and was arrested and released on bail and that he was in jail for more than 48 hours. The respondent also admitted about the factum of filing other writ petitions by this petitioner and its pendency before this court. It is further contended that the 3rd respondent has submitted a report to the 2nd respondent in view of Rule 6(1) of G.O. 830, Revenue (Endowments) Department, dated 18.08.1989, with a request to pass appropriate orders, as the suspension is beyond six months period and the Memo, dated 27.11.2019, by which petitioner's request for reinstatement was rejected and writ petition is filed. It is further submitted that an enquiry officer was appointed to conduct enquiry on the allegations made against this petitioner and he had retired from service. As such no charge memo was issued to the petitioner. The 2nd respondent passed orders vide Memo, dated 27.11.2019, continuing the petitioner under suspension beyond six months. The petitioner is facing serious criminal charges and the investigation has not been completed and thereby, the suspension of this petitioner cannot be revoked and the petitioner cannot be reinstated into service and, prays to dismiss the writ petition. 4. The short question that falls for consideration in view of the rival contentions is that whether the suspension of the petitioner be continued till termination of the proceedings in departmental enquiry or till termination of the criminal proceedings before the competent court and, if so, whether such continuation of suspension is contrary to the principles laid down in Ajay Kumar Chowdary's case (supra) and liable to be set aside? POINT: 5. Undisputedly, the petitioner was placed under suspension by proceedings in Rc. No. A1/1830/2019, dated 12.01.2020. POINT: 5. Undisputedly, the petitioner was placed under suspension by proceedings in Rc. No. A1/1830/2019, dated 12.01.2020. Thereafter, no charges were framed and no enquiry officer was appointed. But it is contended by the respondents that an enquiry officer was appointed but he retired from service in the course of time. Even assuming for a moment that another enquiry officer was appointed to conduct an enquiry, the role of enquiry officer starts only on receipt of written statement from the delinquent by the appointing/disciplinary authority on initiation of disciplinary proceedings only. When the disciplinary authority not satisfied with the written statement of the delinquent officer, the departmental enquiry is to be initiated by appointing an enquiry officer, but so far no charges were framed by the disciplinary authority and communicated to the petitioner/delinquent calling for his written statement. In those circumstances, appointing an enquiry officer after retirement of earlier enquiry officer is against the procedure and irrelevant for the purpose of deciding this issue. 6. Admittedly, this petitioner was placed under suspension by order, dated 30.04.2019, and almost approximately one year eight months is completed, since then. But the continuation of this petitioner under suspension ad infinitum is illegal and contrary to the law laid down by the apex court in Ajay Kumar Chowdary's case (supra), wherein the court held 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. 7. By applying the principle laid down in the above judgment to the present facts of the case, the proceedings are liable to be quashed for the reason that the charge memo was not served on the petitioner/delinquent till date, as admitted by the respondents in their counter specifically. Therefore, continuation of suspension for more than three months is illegal. Moreover, even if any charge sheet is served on the delinquent officer/petitioner herein, a reasoned order has to be passed for continuation of suspension. But in the present case, the second limb has no application as the charge memo itself was not served on the petitioner. Therefore, continuation of suspension for more than three months is illegal. Moreover, even if any charge sheet is served on the delinquent officer/petitioner herein, a reasoned order has to be passed for continuation of suspension. But in the present case, the second limb has no application as the charge memo itself was not served on the petitioner. Therefore, keeping this petitioner under suspension ad infinitum or till termination of proceedings beyond 90 days or beyond three months period is contrary to the law declared by the apex court in the judgment referred supra. Consequently, the order impugned is liable to be set aside while holding no substance in the contention of the respondents. The point is answered accordingly in favour of the petitioner and against the respondents. 8. With the above directions, the writ petition is allowed setting aside the proceedings issued by the 3rd respondent in Rc. No. A1/1830/2019, dated 12.01.2020. As a sequel, the miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.