TMI Blog2021 (2) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he is sending anonymous complaints against the other officials working in the department and that he is disclosing official information to outsiders thereby tarnishing the image of the department. The allegations made in the complaint submitted by the said Anil disclose that he also submitted certain voice messages along with the complaint which discloses that he is committing theft of information in files and providing those files to the outsiders - Though the petitioner made certain attributions against the other employees working in the department, there is absolutely nothing on record to establish the same prima facie and the petitioner never gave any complaint against those persons, who allegedly subjecting the petitioner to harassment while discharging his duties, for the first time, the petitioner invented the story of harassing him by the Superintendents working in the office obviously for the reasons best known to him, may be to come out from the complaint. Clause (1) of Article 311 of the Constitution of India has no application to a situation where a government servant has been merely placed under suspension pending departmental enquiry since such action does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie evidence in support of the allegations perhaps the voice messages or other material, though not referred specifically in the order. The said voice messages are sufficient to form the basis to prima facie to conclude that petitioner is indulged in the activities prejudicial to the interest of the State. The Courts must be slow in interfering with the order of suspension while exercising power under Article 226 of the Constitution of India more particularly when the Court is satisfied that there is some material in support of the satisfaction recorded by the 4th respondent and not tainted by mala fides. The order impugned in the writ petition placing the petitioner under suspension till completion of inquiry, he appears to be erroneous since the suspension order is required to be reviewed at the end of every six months as discussed in the earlier paras vide G.O. Ms. Nos. 86 and 526 referred above. Hence, it is obligatory on the part of the 4th respondent to review the order at the end of every six months period and take administrative decision either to continue the Government servant under suspension or revoke the same in the interest of the State - there are no ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders as such he is revealing the official information to various third parties even before such information reached the concerned departments, hence requested to take appropriate action against the petitioner to safeguard the interest of the Education Department and to keep up the prestige of the Department. The allegations made in the complaint are false and baseless but he was backed by departmental officials only with a view to harass him in one way or the other and they transformed their idea into reality and sent those complaints only with a view to send him out from the present station. 4. On receipt of the letter, Regional Joint Director, School Education Department-4th respondent herein, issued notice to the petitioner dated 18.08.2020 vide Rc. No. 2641/B2/2020 calling for his remarks on the complaint submitted by the press reporter Anil Proddatur. Accordingly, petitioner submitted his remarks on 19.08.2020 denying the allegations. It is specifically contended that there is no iota of truth in the allegations made in the complaint and it is not based on any material but without considering the remarks submitted by the petitioner to the 4th respondent, the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Ajay Kumar Choudhary 2015 (7) SCC 291 and G.O. Ms. No. 86 dated 08.03.1994 and requested to set aside the order. 10. Whereas learned Government Pleader for Services, Sri Ashwatha Narayana contended that the Court must be slow in interfering with suspension orders passed on administrative side by the State and its instrumentalities, in the present facts of the case, along with the complaint, voice messages are submitted to the competent authority and on the basis of the voice messages only, the 4th respondent concluded that there is prima facie material to proceed against the petitioner to take disciplinary action by initiating disciplinary proceedings and it is suffice to place the petitioner under suspension as his continuation in the office seriously affects the administration and it amounts allowing perpetration of illegal activities to tarnish the image of the department itself and requested to dismiss the Writ Petition. 11. Considering the viable contentions available in the record, the sole point that arises for consideration is:- Whether order of suspension is liable to be set aside on any of the grounds urged by the petitioner? POINT: Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence for which he was charged does not have bearing on the discharge of his official duties. The suspension order under Rule 8 is not punitive in nature as a penalty after completion of inquiry as contemplated under Rule 9 of the same rules. The order challenged is only a suspension in contemplation of disciplinary proceedings against the petitioner. Thus, rule 8 empowers the competent authority to place a member's service under suspension but the rule specifies authorities competent to place various members of the state services under suspension but in the present case, the petitioner did not challenge the competency of the 4th respondent to place the petitioner under suspension. Therefore, this Court is not required to examine the competency of 4th respondent to pass the impugned order. 13. The meaning of suspension is to debar from any privilege of office, emoluments etc., for a time. The real effect of an order of suspension is though an employee is continued to be member of the Government service, he is not permitted to work, further, during the period of his suspension, he is paid only some allowances generally called subsistence allowance, which is less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the Regional Joint Director, School Education Department, Kadapa. The allegation against him is that he is disclosing official information and minting money and acquired property at Visakhapatnam with the ill-gotten money and that he is sending anonymous complaints against the other officials working in the department and that he is disclosing official information to outsiders thereby tarnishing the image of the department. The allegations made in the complaint submitted by the said Anil disclose that he also submitted certain voice messages along with the complaint which discloses that he is committing theft of information in files and providing those files to the outsiders. This act, if true, is serious and prejudicial to the interest of the State but the voice messages are not placed on record by the petitioner along with the complaint and it is not known whether such voice messages were actually furnished to the petitioner along with the written complaint, while calling remarks of the petitioner and the petition is totally silent on non-furnishing of such voice messages to the petitioner, while calling for remarks by the 4th respondent, before placing him under suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 311 of the Constitution of India has no application to a situation where a government servant has been merely placed under suspension pending departmental enquiry since such action does not constitute either dismissal or removal from service. In certain cases, suspension may cause stigma, even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot, in the strict legal sense and by any stretch of imagination, be treated as a punishment. (Ashok Kumar Aggarwal (2013) 16 SCC 147; O.P. Gupta v. Union of India; and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.). 18. An order of interim suspension can be passed against the employee while an inquiry/investigation is pending against him Suspending an officer, and thereby disabling him from performing the duties of his office on the basis that the contract is subsisting, is always an implied term in every contract of service. When an officer is suspended in this sense it means that the Government merely issues a direction to the officer that so long as the contract is subsisting and till the time the officer is legally dismissed he must not do anything in the discharge of the duties of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 787; and Balvantrai Ratilal Patel AIR 1968 SC 800. The importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons, cannot be over emphasized. While such action may be against the immediate interest of the government servant, yet it is absolutely necessary in the interests of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. (Khem Chand v. Union of India). 21. Ordinarily, a government servant is placed under suspension to restrain him from availing the further opportunity to perpetrate the alleged misconduct or to scuttle the inquiry or investigation or to win over the witnesses or to impede the progress of the investigation or inquiry, etc. It would also remove the impression, among members of the service that dereliction of duty would pay. (Ashok Kumar Aggarwal (2013) 16 SCC 147 Bimal Kumar Mohanty (1994) 4 SCC 126). When serious allegations of misconduct are imputed against a member of a service, normally it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lterior purpose. (Ashok Kumar Aggarwal's case (referred (25) supra)). An order of suspension should not be passed in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account. (Ashok Kumar Aggarwal's case). It should be made after consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The authority should also take into account all available material as to whether, in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. (Ashok Kumar Aggarwal's case). Ordinarily, an order of suspension is 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 it, on application of mind by the disciplinary authority. (Ashok Kumar Aggarwal; Bimal Kumar Mohanty (1994) 4 SCC 126). 24. Whether the employee should or should not continue in office during the period of inquiry is a matter to be assessed by the concerned authority. Ordinarily, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words, it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India more particularly when the Court is satisfied that there is some material in support of the satisfaction recorded by the 4th respondent and not tainted by mala fides. 30. One of the allegations made in the petition is that the order is tainted by mala fides. The reason for attribution of mala fides is the alleged harassment of the petitioner by two of the superintendents working in RJD office by name Konda Sudhakar Reddy and C. Suresh Babu but it is absolutely baseless as the petitioner never made any complaint against those employees earlier but for the first time, the rivalry is highlighted somehow to sneak away from the proceedings. Therefore, on the basis of such allegations, this Court cannot interfere with the order of suspension impugned in the writ petition. 31. Learned counsel for the petitioner placed reliance on Division Bench judgment of this Court in A.B. Venkateswara Rao Vs. State Of A.P. 2020 LawSuit(AP) 166 referred above and drawn attention to para 17, 18 and 19 of the judgment, where the Court after analysing the law, laid down three requirements for passing an order placing a Government servant under suspension. The factors which are necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewing authority should take a decision regarding continuance or otherwise of the employee concerned under suspension, with reference to the nature of charges, where the delay in finalisation of the inquiry proceedings cannot be attributed to the employee or when there is no interference from the employee in facilitating the inquiry; an outer limit be provided, as two years from the date of suspension, failing which the public servant should be reinstated without prejudice to the proceedings being pursued; however, in exceptional cases, considering the gravity of the charges, one could be continued under suspension even beyond a period of two years, especially in cases where there is a deliberate delay caused due to non-cooperation of the employee concerned; the concerned Principal Secretary/Secretary of the department should review suspension, in cases of their department, at an interval of six months with the representative of Anti-Corruption Bureau, if the proceedings arose out of the investigation conducted by Anti-Corruption Bureau; and they should make suitable recommendations as to the desirability or otherwise of further continuance of the officers under suspension. The exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on than his position during the investigation of the case itself. 35. After referring to the earlier Judgments in O.P. Gupta (1987) 4 SCC 328, where it was held that suspension of an employee was injurious to his interests and must not be continued for an unreasonably long period and, therefore, an order of suspension should not be lightly passed; to K. Sukhendar Reddy v. State of A.P. which castigated selective suspension perpetuated indefinitely in circumstances where other persons involved had not been subjected to any scrutiny; and State of A.P. v. N. Radhakishan wherein it was observed that it would be fair to make the assumption of prejudice if there was unexplained delay in the conclusion of proceedings; the Supreme Court, in Ajay Kumar Choudhary's case, observed that suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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