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2022 DIGILAW 767 (AP)

M. Kalpana v. State of Andhra Pradesh

2022-08-17

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: '.....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in continuing the petitioner under prolonged suspension in pursuance of proceedings of 2nd respondent in C. No. 38/A2-PRs/2020, dated 03.06.2020 and further in not concluding the disciplinary proceedings initiated in pursuance of Charge Memo C. No. 38/ACB-A4/2020-21, dated 30.10.2021 issued by the 2nd respondent and the rejection order in C. No. 38/ACB-A-JD(CZ)/2021, dated 28.03.2022 of the 4th respondent as illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India and further direct the 2nd respondent to permit the petitioner to engage a legal practitioner to defend in the disciplinary proceedings and pass such other orders.' 2. The brief facts of the case are that the petitioner was appointed as Junior Stenographer in the year 2012 and while she was working in the office of 3rd respondent, the petitioner was placed under suspension vide proceedings dated 03.06.2020 on the ground that she committed corrupt practices and misappropriated Government funds and fraudulently withdrawn an amount of Rs. 7,14,600/- instead of Rs. 49,600/- and a case was registered as Crime No. 196 of 2020 on the complaint made by one Mr. K. Janardhan Naidu, Deputy Superintendent of Police, ACB, Tirupati on 28.05.2020. Later a show-cause notice dated 14.08.2021 was issued to the petitioner, for which the petitioner has submitted detailed explanation on 13.09.2021. However, having been not satisfied with the explanation the 2nd respondent issued Memorandum of Article of Charge dated 30.10.2021, for which she submitted explanation on 15.11.2021 and on the same day an Enquiry Officer and Presenting Officer were appointed through different proceedings dated 30.10.2021. More than 20 months have elapsed after her suspension and about 6 months have elapsed after issuance of Charge Memo dated 30.10.2021, till date nothing transpired and no steps taken for conclusion of disciplinary proceedings, which is illegal and arbitrary. Hence inaction of the respondents is questioned in this writ petition. 3. More than 20 months have elapsed after her suspension and about 6 months have elapsed after issuance of Charge Memo dated 30.10.2021, till date nothing transpired and no steps taken for conclusion of disciplinary proceedings, which is illegal and arbitrary. Hence inaction of the respondents is questioned in this writ petition. 3. Per contra, the respondents filed counter denying all material averments made in the writ affidavit and mainly contended that as per Rule 20(5)(c) says that the disciplinary authority shall serve copies of the orders appointing the Inquiry Authority and the Presenting Officer on the Government Servant and inform him/her that he/she may take the assistance of any other government servant to present the case on his/her behalf, but he/she may not engage legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary Authority is a legal practitioner or the appointing authorities, having regard to the circumstances of the case, so permits, and ask him/her to finalize the selection of his defence assistance before the commencement of proceedings. It is further stated that, in this case, the Presenting Officer appointed by the Disciplinary Authority is Sri. J. Venkata Rao, DSP, ACB, Guntur. He is not a legal practitioner. Therefore, the Charged Government Servant is not entitled to engage a Legal Practitioner to defend her case before the Inquiry Officer. Still the Government is requesting to permit her to engage a legal practitioner to defence her case before the Inquiry Officer which is against the principles of natural justice. The provisions of Indian Evidence Act 1872 are not applicable to the Departmental Inquiries. It is further stated that as per G.O.Ms. No. 526 Genl. Admn (Ser-C) Department, dated 19.08.2008, the employees who are under suspension for a period of exceeding 2 years shall be reinstated pending finalisation of the disciplinary/criminal cases against them. The provisions of Indian Evidence Act 1872 are not applicable to the Departmental Inquiries. It is further stated that as per G.O.Ms. No. 526 Genl. Admn (Ser-C) Department, dated 19.08.2008, the employees who are under suspension for a period of exceeding 2 years shall be reinstated pending finalisation of the disciplinary/criminal cases against them. However, in exceptional cases, for example, where the charged officers are not cooperating for completion of investigation/inquiry or when the inquiry/investigation could not be completed due to pendency of litigation, a committee headed by the Secretary of the administrative Department, Head of the Department concerned and an official from the ACB, shall review the orders of the suspension against the employee who are continued under suspension well before completion of 2 years of suspension and take a decision to continue such employees under suspension beyond 2 years, duly recording the reasons for such a decision. It is further stated that the petitioner filed this petition without any valid grounds and she is not ready and willing to cooperate for the inquiry proceedings the inquiry would have been commenced and concluded by this time. Hence prayed to dismiss the writ petition. 4. Heard Mr. Motupalli Vijaya Kumar, learned counsel for the petitioner; learned Government Pleader, Service-I for the 1st respondent and Mr. S.M. Subhani, learned Standing Counsel, ACB and Special Public Prosecutor for the respondents 2 to 4. 5. On hearing, this Court observed that the disciplinary authority has no power to permit the delinquent employee to engage a legal practitioner under Rule 20(5)(c) of the A.P. Civil Services (CCA) Rules, 1998, the rejection order issued by the Joint Director is bereft of any reasons and suffers from total non-application of mind. It is also observed that the disciplinary authority i.e., 2nd respondent who has got the power to permit the delinquent employee to take assistance of the legal practitioner, the Joint Director who was appointed as the Inquiring authority has no power. Therefore, the impugned order is without power or jurisdiction. The Government has issued instructions in G.O.Ms. No. 679, General Administration (Ser. C) Department, dated 01.11.2008 where under it has been clearly stipulated to conclude departmental proceedings within a period of 3 months in case of simple charges and 6 months in case of complicated charges. Moreover, it is only one charge. The Government has issued instructions in G.O.Ms. No. 679, General Administration (Ser. C) Department, dated 01.11.2008 where under it has been clearly stipulated to conclude departmental proceedings within a period of 3 months in case of simple charges and 6 months in case of complicated charges. Moreover, it is only one charge. However, despite the lapse of nearly 5 months, the enquiry is still not commenced. This Court further observed that though the Fundamental Rules clearly say that an employee is entitled for 75% of the pay as subsistence allowance even after completion of 3 months under suspension. 6. It is pertinent to mention here that under FR 53(1)(ii)(a)(i), the subsistence allowance may be increased b a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first 3 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government Servant. Therefore, the petitioner is entitled for payment of subsistence allowance @ 75% from 03.09.2020 onwards on which date she had completed 3 months of suspension because the order of suspension is 3.6.2020. The Government has issued orders in G.O.Ms. No. 86, dated 8.3.1994, whereunder the order of suspension against a Government Servant shall be reviewed the end of every six months. In the present case, no such review was undertaken till date. The Government has also issued orders with regard to prolonged suspension of its employees and directed vide GO Ms. No. 526, dated 19.8.2008 to reinstate those employees who are under suspension for a period of exceeding 2 years. In the present case, the petitioner had completed nearly 21 months. 7. In a case of J.K. Agarwal v. Haryana Seeds Development Corporation Ltd. and others AIR 1991 Supreme Court 1221, the Hon'ble Supreme Court held that 'On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett's case that in defending himself one may tend to become 'nervous' or 'tongue tied'. Moreover, appellant, it is claimed, has had no legal back ground. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.' In view of the foregoing reasons and the submissions made by both the learned counsels, this Court is of the considered opinion that it is a fit case to allow the writ petition. 8. Accordingly, the Writ petition is allowed with the following directions: i) The impugned proceedings in CNo. 38/A2-PRs/2020, dated 3.6.2020 issued by the 2nd respondent and further in not concluding the disciplinary proceedings initiated in pursuance of the charge memo No. C. No. 38/ACB-A4/2020-21 dated 30.10.2021 issued by the 2nd respondent and rejection order in C. No. 38/ACB-A-JD(CZ)/2021, dated 28.3.2022 of the 4th respondent, are hereby set aside. ii) The respondents concerned are directed to reinstate the petitioner into service; iii) The respondents are directed to pay 75% of the subsistence allowance to the petitioner from the date of suspension i.e., dated 03.09.2020; iv) Further, the 2nd respondent is directed to permit the petitioner to engage a legal practitioner to defend in the disciplinary proceedings under Rule 20(5)(c) of the A.P. Civil Services (CCA) Rules, 1998 and in view of the decision of Hon'ble Supreme Court referred to above. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.