Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 1017 (AP)

Y. T. v. K. R. Babu VS State of Andhra Pradesh

2022-10-13

V.SUJATHA

body2022
ORDER : 1. The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief: “to issue a writ in the nature of Certiorari or any other appropriate writ order or direction by declaring the order of suspension issued by the 4th respondent vide O.C. No. 2058/2017 dated 04.09.2017 is illegal. Arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India besides violative of Principles of Natural Justice and consequently set aside the same and to pass such other orders in the circumstances of the case.” 2. The brief facts of the case are that though the petitioner was issued appointment order dated 08.03.2002 to the post of Physical Director (Aided Post), he was not allowed to discharge his duties on the ground that the 4th respondent-college sent proposals to the respondents No. 2 and 3, seeking approval of his appointment. 3. As no orders were passed approving his appointment, the petitioner filed W.P. No. 1820 of 2003, wherein, initially an interim order was passed on 18.03.2003, directing the respondents to pay the salaries to the petitioner from 08.03.2002 and to continue to pay salary every month. In pursuance of the said Interim Orders, the petitioner was allowed to discharge his duties. Subsequently, vide orders dated 05.12.2007, the Writ Petition No. 1820 of 2003 was disposed of by observing as follows: “in view of filing of W.P. No. 11179/1999, permission to fill up the aided post of Physical Director was cancelled and as such, though the petitioner is being continued in service, his services were not regularized. Since the said W.P. No. 1179 of 1999 is dismissed as infructuous today i.e. on 05.12.2007, I am of the opinion that now there will not be any hurdle in the way of the respondents for considering the case of the petitioner. Under those circumstances, the respondents shall consider approving the appointment of the petitioner and regularizing his services from the date of his appointment i.e. from 08.03.2002, without reference to the cancellation of the permission to fill up the post, vide proceedings dated 16.03.2002, in view of the fact that he was already subjected to regular selection process. The respondents shall complete this exercise within a period of eight weeks from the date of receipt of a copy of this order. The respondents shall complete this exercise within a period of eight weeks from the date of receipt of a copy of this order. With the above directions, the writ petition is disposed of. No order as to costs.” 4. In spite of the orders of this Hon’ble court in W.P. No. 1820/2003, the 2nd respondent issued memo dated 06.02.2008 stating that the 3rd respondent is competent to approve his appointment as Physical Director, referring to a letter in R.C. No. 1330/E1-2/2003-04 dated 20.09.2004. 5. Questioning the said inaction on the part of the 3rd respondent for not approving or issuing appointment orders, the petitioner filed W.P. No. 7933 of 2008, wherein there was an interim order on 18.04.2008, which is as follows: “This court takes a serious exception to the way in which the Commissioner of Intermediate Education has functioned. On the one hand, it was observed that the Commissioner is not the competent authority to accord approval for the appointment of the petitioner and on the other hand extensive discussion was undertaken including the one finding fault with the petitioner about the alleged suppression of facts. If at all anything, it only reflects the callousness with which the matter was dealt with. In case, the Commissioner was not competent authority, the only thing which he ought to have been done was to forward the matter to the Board of Intermediate Education, the 2nd Respondent herein. The 1st respondent is accordingly directed to forward the matter to the 2nd respondent, shall pass appropriate orders in the matter, within a period of Four(04) weeks from the date of receipt of a copy of this order.” 6. As the said order passed by this court was not complied with, the petitioner filed C.C. No. 1218 of 2012 before this court, wherein the 3rd respondent filed a counter stating that the Interim Orders were complied with by passing a detailed order on 15.11.2012 wherein, it was stated that the selection of petitioner was irregular. Thereafter, the petitioner filed a petition seeking amendment of the prayer in W.P. No. 7993/2008 and the same is pending for adjudication. The case of the petitioner is that pending the said Writ Petition, in order to take revenge against the petitioner, the 4th respondent issued impugned order of suspension on 04.09.2017. 7. Thereafter, the petitioner filed a petition seeking amendment of the prayer in W.P. No. 7993/2008 and the same is pending for adjudication. The case of the petitioner is that pending the said Writ Petition, in order to take revenge against the petitioner, the 4th respondent issued impugned order of suspension on 04.09.2017. 7. The reason for suspending the petitioner is that the members of teaching staff working in AG and SG Siddhartha Junior College of Arts and Science including the Principal-in-charge gave a written complaint to the undersigned alleging certain serious acts of misconduct against the petitioner. 8. As per the contention of the petitioner, immediately after receipt of the suspension orders, the petitioner made a representation requesting to revoke the suspension orders. But, in spite of it, one Dr. N. Srinivasa Rao was appointed as Enquiry Officer, who issued a notice to the petitioner, calling for his explanation, for which, the petitioner has submitted his explanation denying all the allegations. 9. The main grievance of the petitioner is that thereafter no enquiry is conducted and the 4th respondent has also not reinstated the petitioner, because of which, the petitioner was deprived of his employment, which is the only source of income for himself and as well as his family. 10. A counter-affidavit and an additional counter-affidavit is filed by the respondent No. 4, requested to dismiss the Writ Petition on the ground of maintainability and further contended that unless the Hon’ble Court holds that the petitioner is holding an aided post and the same is notified by the 2nd respondent, the Writ petition is not maintainable. 11. The 4th respondent further submits that on one hand, the petitioner is avoiding to appear before the Enquiry Officer by refusing the notices sent by the 4th respondent and on the other hand, the petitioner is challenging the suspension proceedings dated 04.09.2017, as illegal and bad and is trying to get favourable orders from this Hon’ble Court by suppressing all the relevant facts. 12. The specific case of the respondents is that the Enquiry Officer issued notices to the petitioner on 06.03.2020 requesting him to appear for enquiry/disciplinary proceedings but though the petitioner met the Enquiry Officer, however have evaded, from appearing before them for enquiry, because of which, the disciplinary proceedings against the petitioner could not be concluded. 12. The specific case of the respondents is that the Enquiry Officer issued notices to the petitioner on 06.03.2020 requesting him to appear for enquiry/disciplinary proceedings but though the petitioner met the Enquiry Officer, however have evaded, from appearing before them for enquiry, because of which, the disciplinary proceedings against the petitioner could not be concluded. It is the petitioner, who is avoiding the disciplinary proceedings and not allowing to conclude the same but not the respondents and requested to dismiss the Writ Petition. 13. The 4th respondent filed additional counter-affidavit, reiterating the averments made in the counter by stating that unless the W.P. No. 7933 of 2008 filed by the Writ Petitioner is allowed by holding that the petitioner is entitled for regular post and the same is notified by the 2nd respondent, the present Writ Petition is not maintainable as the petitioner is not holding any aided post in their college and also relied upon a Decision reported in St. Mary’s Education Society and Another vs. Rajendra Prasad Bhargava and Others, 2022 SCC Online SC 1091 wherein it was observed that: “the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognized as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.” “the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.” 14. The petitioner also filed rejoinder by reiterating the contents of his writ affidavit and further submitted that the enquiry is not conducted even after a lapse of more than four(04) years and if the enquiry is not completed within a period two months, such employee shall without prejudice to the enquiry be deemed to have been restored as employee and shall be paid subsistence allowance during the period of suspension. 15. Heard Sri. Parsa Ananth Nageswara Rao, learned counsel for the petitioner, learned Government Pleader for Higher Education for Respondents No. 1 to 3 and of Sri. Challa Gunaranjan, learned counsel for Respondent No. 4. 16. 15. Heard Sri. Parsa Ananth Nageswara Rao, learned counsel for the petitioner, learned Government Pleader for Higher Education for Respondents No. 1 to 3 and of Sri. Challa Gunaranjan, learned counsel for Respondent No. 4. 16. Upon hearing the petitioner as well as the respondents, it is understood that in pursuance of the suspension orders though the notices were sent to the petitioner calling him to appear for the domestic enquiry, the petitioner having evaded the same, filed the present Writ Petition. 17. In view of the facts and circumstances of the case, this court is of the opinion that, had the petitioner instead of facing the enquiry has filed the present Writ Petition, which in fact is not maintainable as the scope of interference by the Court is limited, in a Suspension order, which fact has been examined in a large number of cases and the same was observed in D.V. Rao vs. State of Andhra Pradesh, W.P. No. 18709 of 2020, dated 03.03.2021, wherein, it was held that: “undisputedly, the jurisdiction of this court to interfere with the suspension order is limited and cannot interfere with the order of suspension as held by the Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Buddana Venkata Murali Krishna vs. State of Andhra Pradesh.” 18. It was also observed in Buddana Venkata Murali Krishna vs. State of Andhra Pradesh, W.P. No. 7618 of 2015, dated 01.06.2015 by the Division Bench of High Court that: “mere delay in conclusion of disciplinary proceedings or criminal cases or long period of suspension would not render the order of suspension invalid and that even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala-fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial cannot be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala-fide and without there being even a prima-facie evidence on record connecting the employee with the misconduct in question.” 19. The case of the petitioner is that though he is placed under suspension vide proceedings in O.C. No. 2058/2017 dated 04.09.2017 and thereafter the respondents in spite of receiving his explanation, have neither conducted the enquiry nor revoked the suspension proceedings and on the other hand, the petitioner is also not being paid any subsistence allowance, because of which, the petitioner is put to irreparable loss and injury. 20. In view of the above observations, without going into the merits of the case, this court feels it appropriate to dispose of the Writ Petition by directing the respondents to review the suspension order and complete the enquiry within a period of three(03) months from the date of receipt of the copy of order. It is also made clear that the petitioner shall co-operate for the said domestic enquiry. 21. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs. 22. Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.