THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.16097 of 2009 Date : 26-10-2009 Between: D.Prabhakar Rao .. Petitioner And The Co-operative Electric Supply Society Limited (CESS), Rep. by its Managing Director, Sircilla, Karimnagar District And others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.16097 of 2009 ORDER:- This Court ordered notice before admission on 6-8-2009. Sri Ch.Koteswara Rao had taken notice on behalf of R.1 and R.3. The learned G.P. for Cooperation had taken notice on behalf of R.2 and requested time to file counter affidavit. 2.Counter affidavit of R.1 and R.3 filed. The learned A.G.P. for Cooperation reports that no counter affidavit need be filed and on the strength of instructions, the learned A.G.P. for Cooperation made certain submissions. 3. This writ petition is filed for a Writ of Mandamus declaring that the action of respondents 1 and 3 in not implementing the directions of the respondent No.2 and continuing the services of the accused employees who are involved in C.C.No.722/2006 on the file of the First Class Magistrate, Sircilla, who were kept under custody for more than 48 years and some were remanded to Judicial Custody is arbitrary and illegal and pass such other suitable orders. 4. Sri M.Rama Rao, the leaned Counsel representing the writ petitioner had taken this Court through the chronological events and also further pointed out to Rc.No.200/2009-B, dt.18-4-2009 and also Rc.No.4110/2008-B, dt.3-3-2009 and would maintain that in the light of the same, the stand taken in the counter affidavit filed by R.1 and R.3 cannot be believed at all. The learned Counsel also would maintain that when specific instructions had been given, respondent No.1 is bound to carry out such directions or instructions and in the light of the false stand taken by the respondent No.1, who is shown in personal capacity as R.3, appropriate directions are to be given. 5. The learned A.G.P. for Cooperation would maintain that it is true that the J.R./Dist.Coop.Officer, Karimnagar addressed a letter to the Superintendent of Police, Karimnagara, in Rc.No.200/2009-B, dt.18-4- 2009. The learned A.G.P. for Cooperation also would maintain that it is also true that the J.R./Dist.Coop.Officer, Karimnagar, addressed a letter to the Managing Director, Coop.Electric Supply Society Ltd., in Rc.No.4110/2008-B, dt.3-3-2009. The learned A.G.P. for Cooperation also would maintain that in the light of the these proceedings appropriate further action to be taken. 6. Sri Koteswara Rao, the learned Counsel representing R.1 and R.3 would maintain that till the Writ Petition had been filed and the proceedings are placed before this Court, respondent No.3 had no knowledge about the same. The learned Counsel also would further maintain that even otherwise, there is no specific direction, except observing that appropriate administrative and disciplinary action against accused persons as per Rules to be taken. However, the learned Counsel would maintain that in the light of the same, the further proceedings would be taken in accordance with law. 7. Heard the Counsel. 8. It is the case of the writ petitioner that the petitioner made a complaint to respondents 1 and 2 to take appropriate action against the accused employees including the termination of service, who are involved in crime No.431/2006 under Sections 147, 323, 341, 506 of IPC registered by the Police, Sircilla and to investigate the same. 9. It is also the case of the petitioner that respondent No.2 called for a report of the Circle Inspector of Police, Sircilla, in respect of the employees of the Cooperative Electricity Supply Society (hereinafter, in short, referred to as ‘CESS’), Sircilla, who are accused in crime No.431/2006 and C.C.No.722/2007 on the file of Judicial First Class Magistrate, Sircilla, to take appropriate action against those who were involved in the crime. The Circle Inspector of Police, Sircilla, submitted a report bearing Rc.No.11/CI-T/2006-2009 dt.20-1-2009 giving full particulars of employees who were involved in the said crime and were arrested and remanded to judicial custody. After the said report, the respondent No.2 had directed the respondent No.3 to take appropriate action through his proceedings dt.3-3-2009 bearing Rc.No.4110/2008-B, to take appropriate administrative and disciplinary action against the accused person, as per the rules duly placing the matter in the Managing Committee and also submit the report. The matter may be informed to the said Office within a week. 10. Further it is stated that even though the said proceedings have been issued on 3-3-2009 and received by the respondent No.1, no action has been initiated by the respondent No.3 on the said order. It is now well settled Law, as per the CCCA Rules, that no accused person who was arrested and kept in police custody for more than 48 hours, shall be continued in service. Inspite of direction of the higher authority i.e., respondent No.2, the respondent No.3 being a sub- ordinary to the respondent No.2 as the CESS being a Cooperative Society and its Managing Director is bound to obey the orders of the respondent No.2 being a superior authority. Inspite of the direction by the respondent No.2 to respondent No.3, no action has been taken by the respondent No.3 to initiate disciplinary action against the 1st respondent employees who were involved in criminal case bearing C.C.No.722/2007 on the file of the Judicial Magistrate of 1st Class, Sircilla. It is also now well settled Law that whenever a criminal case is pending against the employee, they should not be continued in service. Further it is well settled Law that when the higher authorities issue directions to the subordinates, such directions are to be implemented by the authorities at the lower level. 11. The main grievance of the petitioner is that inspite of the directions of R.2, respondent No.3 is not taking any action against accused in criminal case C.C.No.722/2007 on the file of the Judicial Magistrate of First Class, Sircilla and the continuation of accused in service is against the interest of the public. When an employee is arrested and kept in police custody for more than 48 hours, the employee is deemed to have been kept under suspension. The respondent No.3 is not taking any administrative and disciplinary action against the accused employees in C.C.No.722/2007 and the same being arbitrary, the said action is being challenged in the present Writ Petition. 12. The proceedings Rc.No.200/2009-B, dt.18-4-2009 addressed by the J.R./Dist.Coop.Officer, Karimnagar, to the Superintendent of Police, Karimnagar, had been placed before this Court and the same reads as hereunder:- “GOVERNMENT OF ANDHRA PRADESH COOPERATION DEPARTMENT From: To Sri Mohd.Yakub Ali, The Superintendent of Police, M.A., HDC, KARIMNAGAR. J.R./Dist.Coop.Officer, KARIMNAGAR. Rc.No.200/2009-B, Dated:18-4-2009. Sir, Sub:- Cooperation Department – Petition – Petition of Sri D.Prabhakar Rao, Chairman, AMBCT, Thettukunta ‘V’ – Action against the accused persons in Cr.No.431/2006 – Suitable action – Request. Ref:- Sri D.Prabhakr Rao, Chairman, AMBCT Petition, dt.17-4-2009, addressed to the DIG of Police, Govt.of A.P., Hyderabad under copy to this Office. -: o0o :- I submitted a copy of the petition under reference cited is enclosed herewith. I invite kind attention to the petition enclosed herewith and request to take suitable action against employees accused in Cr.No.431/2006 of Sircilla P.S., and also on other employees of the Coop.Electricity Supply Society Ltd., who are against the petitioner, at an early date. Yours faithfully, Sd/- J.R./Dist.Coop.Officer, Karimnagar” Likewise, the proceedings Rc.No.4110/2008-B, dt.3-3-2009 addressed by the J.R./Dist.Coop.Officer, Karimnagar, to the Managing Director, Coop.Electric Supply Society Ltd., Sircilla, had been placed before this Court and the same reads as hereunder:- “GOVERNMENT OF ANDHRA PRADESH COOPERATION DEPARTMENT From: To Sri Mohd.Yakub Ali, The Managing Director, M.A., HDC, Coop.Electric Supply Society Ltd J.R./Dist.Coop.Officer, SIRCILLA. KARIMNAGAR. Rc.No.4110 /2008-B, Dated:3-3-2009. Sir, Sub:- Cooperation Department – Report on the petition of Sri Dugyala Prabhakar Rao, CESS Primary Members, TDP member & Chairman, Sircillar, Karimnagar District – Stage of the case – Disciplinary action – Reg. Ref:- Circle Inspector of Police, Sircilla, Lr. Rc.No.11/CI- T/2006-2009. -: o0o :- A copy of the letter under reference cited is enclosed herewith. The Circle Inspector of Police, Sircilla has submitted a detailed report in the stage of case in respect of all the accused from A.1 to A.50. Therefore, I request you to take appropriate administrative, disciplinary action against the accused persons as per rules, duly placing the matter before the Managing Committee/General Body of the society. The action taken report in the matter may be informed to this Office within a week positively and stage of the case from time to time. Yours faithfully, Sd/- J.R./Dist.Coop.Officer, Karimnagar” 13. Counter affidavit had been filed by R.1 and R.3 and a reply affidavit also had been filed. 14. The Managing Director of Cooperative Electric Supply Society Ltd., Sircilla, had been shown as R.3 in his personal capacity. In the counter affidavit by respondents 1 and 3, specific stand had been taken that the 3rd respondent does not know why the 3rd respondent was impleaded in his personal capacity without explaining any reasons and on this ground alone, the Writ Petition is liable to be dismissed. Further stand had been taken that for non-impleading of the necessary parties, the Writ Petition to be dismissed. 15. Further it is averred in para 3 that the petitioner submitted a complaint to the 1st respondent after a lapse of 2 ½ years and the 1st respondent is not aware of the fact ht 2nd respondent called for a report from the Office of the Circile Inspector of Police, Sircilla in respect of the employees of the CESS, Sircilla, who are accused in crime No.431/2006 and C.C.No.722/2007 on the file of the Judicial Magistrate of First Class, Sircilla, to take appropriate action. 16. Further it is stated that the society is also not aware of the fact that the Circle Inspector of Police submitted a report bearing No.C.No.11/C1-T/2006-09, dt.21-1-2009, since the society had not received any communication/instruction from the Circle Inspector of Police or the respondent No.2 until 5-3-2009. The respondent No.2 issued a tender to the society to take appropriate action through his letter bearing Rc.No.4110/2008-B, dt.3-3-2009 for initiating administrative and disciplinary action against the accused person as per the Rules, after a lapse of 2 ½ years from the date of incident. It is also stated that the present Managing Committee as well as Managing Director are no way connected to the incident which was occurred on 9-11-2006 and further it is stated that no communication is received from the police authorities for initiating action against accused and more over the previous District Cooperative Officer had also not called for any report from the Police and not advised the society to take action against the accused who are involved in crime No.431/2006. 17. It is further stated that the accused – A.2 to A.31, A.33 to A.43, A.46, A.47 and A.50 are not the permanent employees even as on today and just one month prior to the incident, they have been taken as Contract Helpers and the accused No.32 was already retired from service and accused No.44 is the former Vice President of CESS Village Workers Union who is the immediate Assistant of the then CESS VEW Union President i.e., the petitioner and accused No.45 is a Divisional Electrical Engineer deputed from APNPDCL, to work as Managing Director, CESS Limited, Sircilla, and he was repatriated to his parent Department during the year 2007 and accused No.48 was retired from service and accused No.50 is no where concerned to the CESS. 18. It is also stated that the accused are not the permanent employees and they are only Contract Helpers and the Managing Committee as well as Managing Director are not aware of the fact of crime and nothing has been informed either by Police or by the District Cooperative Officer, Karimnagar, until March 2009. Hence, no action had been initiated. Further for want of information, it is denied that accused No.45 – B.Ashok, DE/the then Managing Director had bore grudge and abetted the other accused to attack on the petitioner. 19. In the reply affidavit filed, again the stand taken in the affidavit filed in support of the Writ Petition had been reiterated. 20. The Counsel for writ petitioner had relied on MEHSANA DISTT.CENTRAL COOP.BANK LTD. v. STATE OF GUJARAT[1] wherein at para 16 the Apex Court observed as hereunder:- “In the facts and circumstances stated above, the High Court by the impugned order issued a writ of mandamus, directing respondent Nos. 4 and 5 to take appropriate action against the appellants in accordance with the provisions contained in the Gujarat Cooperative Societies Act and the rules framed there under. We do not see any infirmity in the impugned order. The Acts and Rules are made to be followed and not to be violated. When the Statute prescribes the norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if the concerned authorities do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court about the inaction of the statutory authorities and in such event if would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and circumstances of the case. In the present case, the facts as alluded above, would clearly reveal that the High Court was clearly justified in issuing a writ of mandamus, which cannot be faulted.” Further reliance was placed on GOVERNMENT OF ANDHRA PRADESH v. C.KONDAPI[2] wherein the Division Bench observed at para 11 as hereunder:- “By way of summing up the principle to be deduced from the above said decisions, can be clearly enunciated in the following manner : The writ of mandamus is a remedy available to any person who is trying to assert his legal right by invoking the jurisdiction of the High Court under Art. 226 of the Constitution compelling the public authorities to perform legal duty cast upon them. If the State Government or the public authority, as the case may be, fails to discharge their obligations or if they exercise the discretion vested in them in a manner which is not fair and reasonable then the High Court can apply the correct procedure by issuing a writ of mandamus directing the authorities to do a particular act which is in accordance with the principles of law, justice and equity. The power of judicial review in issuing prerogative writs vested in the High Court cannot be crumbled at the risk of certain technical difficulties which may arise in the way. The concept of the jurisdiction in issuing a writ, particularly in the nature of a mandamus, is a concept based not merely on the principles of common law but on the basis of equity and good conscience. We have examined minutely the record existing in this case and have come to the conclusion that the learned single Judge was well within his rights to direct the State authorities to sell the land, admeasuring 300 square yards at the rate of Rs. 250/- per square yard, to the appellant-writ petitioner. The learned single Judge has fixed the price at the rate of Rs.250/- per square yard after going through the recommendations made by the revenue authorities themselves. He had indeed opted for the highest price which has been quoted by the authorities in that connection and fixed the price appropriately at Rs. 250/-per square yard. We do not see any reason as to why the same principle should not be applied in regard to the sale of land in favour of the petitioner as it was applied in the case of Mrs. B. N. Raman where an extent of 425 square yards was sold to her by the Government at the rate of Rs. 25/- per square yard. The argument based on Art. 14 of the Constitution that the principle of 'equality before law' has been violated in this case by the refusal of the authorities to sell the land is well grounded in the facts and circumstances of the case as they emerge from the examination of the record of the matter. Hence, we are of the positive view that Writ Appeal No. 1080/88 filed by the Government challenging the jurisdiction of the High Court to issue a writ of mandamus in a case of this nature deserves to be dismissed. Similarly, W. A. No. 1088/88 filed by Mr, C. Kondapi challenging the fixation of the price of land at Rs. 250/- per square yard is also rendered devoid of any merit and is also liable to be dismissed.” 21. This Court is not inclined to express any opinion relating to the other merits and demerits especially in the light of the stand taken by the 1st respondent who is shown in his personal capacity as Managing Director. However, when communication had been sent to him relating to the involvement of the employees, whatever the nature of the employment may be, as accused, the said Managing Director of the 1st respondent shown as 3rd respondent is bound to look into the same and take appropriate action as per the Rules. The proceedings addressed by the J.R./Dist.Coop.Officer, Karimnagar to the Managing Director, Coop.Electric Supply Society Ltd., Sircilla in Rc.No.4110 /2008-B, Dated:3-3-2009 already had been referred to above. 22. In the light of the same, this Court is of the considered opinion that the Writ Petition be disposed of with a direction to the 1st respondent – Managing Director, shown in his personal capacity as R.3, to take appropriate action in this regard, at an early date, preferably within a period of four weeks from the date of receipt of this Order. It is no doubt true that without making any serious allegations against the 3rd respondent, the 3rd respondent is impleaded in his personal capacity, but however, in the light of the respective stands taken by the parties, this Court is of the considered opinion that this Court is need not express any further opinion but however suffice to state that the 3rd respondent being the Managing Director of the 1st respondent, to take appropriate action in this regard in accordance with law as specified above. Accordingly, the Writ Petition is disposed of. No order as to costs. _____________________ Justice P.S. Narayana 26th October, 2009 smr [1] 2004 (2) SCC 463 [2] AIR 1992 A.P., 324