IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 12078 of 2009 Between: D. Atchuta Rao, S/o. Venkata Rao, G. Kothapalli Primary Agricultural Co-operative Societyu, G. Kothapalli, West Godavari District. ..... PETITIONER AND 1 The Government of Andhra Pradesh Co-operative Department, Rep by its District Co-operative Officer, West Godavari District, Eluru 2 The Divisional Co-operative Officer, West Godavari District, Eluru 3 The G. Kothapalli Primary Agricultural Co-operative Society Ltd. No. E 969, G. Kothapalli, Dwaraka Tirumal, West Godavari District. Rep by its President .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the respondents in placing the petitioner under suspension vide suspension order dated 25-3-2009 as illegal, arbitrary, without jurisdiction and violative of Article 14 of the Constitution of India and also contrary to Section 59 of the Andhra Pradesh Cooperative Societies Act and also contrary to the special bye laws relating to the service conditions of the employees of the Primary Agriculture Credit Societies and consequently set aside the suspension order dated 25- 3-2009 and also direct the respondents to pay all incidental and consequential benefits to the petitioner. Counsel for the Petitioner:MR.L.V.S.NAGARAJU Counsel for the Respondent No.: GP FOR COOPERATION The Court at the stage of admission made the following O R D E R: The present Writ Petition has been directed against an order passed by the 3rd respondent – Society, placing the writ petitioner under suspension pending enquiry. While passing the impugned order on 25th March 2009, the 3rd respondent – Society has pointed out that a show cause notice was already issued to the petitioner on 2nd February 2009, inviting his attention to the allegations that he has indulged in abuse and misuse of the funds of the Society and, therefore, he was called upon to explain as to why the disciplinary enquiry should not be initiated against him. The impugned order further pointed out that on 16th February 2009, the Society has discussed various acts of omission and commission of the writ petitioner, who is a Paid Secretary of the said Society and resolved to take action in accordance with law. Therefore, the President of the Society, based upon the material that was collected during the course of the preliminary enquiry, has specifically pointed out four different incidents, which have come to light, disclosing various acts of omission and commission indulged in by the writ petitioner and hence, passed the present impugned order on 25th March 2009 placing him under suspension pending disciplinary proceedings. Learned counsel for the writ petitioner formulated the following two questions for consideration of this Court: 1) Under Section 59 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, ‘the 1964 Act’), it is only the Registrar, who is the competent authority to place a paid employee of the Society under suspension and hence, the impugned order has been passed without competence and jurisdiction; 2) Even otherwise, as per Bye-law No.7 of the Byelaws of the Society, the authority competent to place an employee under suspension is the Managing Committee of the Society in consultation with the District Level Committee and hence, the impugned order is bad for having not consulted the District Level Committee. I am afraid both the contentions are not tenable for, Section 59 of the 1964 Act empowers the Registrar to give directions to any Society to place under suspension any paid officer or servant, against whose involvement in the affairs of the Society, adverse material has come to be noticed during the course of an audit undertaken of the Society in terms of Section 50, an inquiry conducted in terms of Section 51, an inspection carried out in terms of Section 52 and inspection of books by financing bank or federal society undertaken under Section 53 of the 1964 Act. If any such direction is issued by the Registrar, the Managing Committee of the Society shall notwithstanding any contrary provision in the Bye-laws place or caused to be placed the paid officer or the servant under suspension forthwith. Thus, Section 59 of the 1964 Act has statutorily recognized and conferred a power upon the Registrar to direct the Managing Committee of any Society to place any of its paid employees or servants under suspension against whom adverse material has come to be noticed in terms of audit/enquiry/inspection carried out under Sections 50, 51 and 52 of the 1964 Act. Therefore, Section 59 is an additional component of conferring power upon the Registrar. For, it is not the whole and sole power available and every Managing Committee of a Society would have independent powers to deal with their paid employees. Power conferred under Section 59 of the 1964 Act on the Registrar is, therefore, an additional power than what has already been contemplated or provided for under the Bye-laws of each Society. Bye-law No.2 has tried to list out the minor misconducts, while Bye-law No.3 listed out the minor punishments, which can be imposed upon the servants of the Society. Bye-law No.4 dealt with the major misconduct and in that misappropriation and embezzlement of the society’s funds has been listed out as one such. Bye-law No.5 prescribed the major punishments that can be imposed against the paid servants. Bye-law No.6 has pointed out that an employee of the Society may be placed or kept under suspension pending enquiry by the competent authority, if he is found to have prima facie involved in misappropriation or otherwise responsible for it or breach of trust. It was further laid down in Bye-law No.6 that the period of suspension shall ordinarily be for six months and in special circumstances, the period may be extended beyond six months with the prior approval of the Committee recording the reasons after undertaking a review. Bye-law No.7 dealt with the procedure for inflicting the punishment against the paid servants. In Byelaw No.7, authorities competent to inflict the punishments have been spelt out. There, it was mentioned that for suspension and reversion, the authority competent is the Managing Committee in consultation with the District Level Committee. Therefore, to my mind, what has been spelt out in Bye-law No.7 is for the purpose of imposing the punishment of suspension as a substantial measure and it is not for the purpose of regulating the exercise of placing an employee under suspension pending enquiry. Placing an employee under suspension pending enquiry does not amount to imposition of any punishment. It merely enables the employee to be kept away from the work place, so that his access to the records and men and matters can be denied. By placing an employee under suspension pending enquiry, no penal consequence can flow to the employee till such time the enquiry is completed. Depending upon the result in the enquiry, further action is required to be taken. If an employee is exonerated of the charges levelled against him, the period of suspension is liable to be treated as period spent on duty and consequently, his pay and allowances would be regulated. If, on the other hand, an employee has been subjected to a punishment, in particular a major punishment, then it will be open to the competent authority to deal with the period of suspension also independently. Depending upon the quantum of guilt held established, the competent authority may still consider to treat the period of suspension as period spent on duty or otherwise. Right to place an employee under suspension pending enquiry is available to every appointing authority. It is a concomitant power available to such appointing authority. There need not be any specific power traceable for placing an employee under suspension in the Discipline, Control and Appeal Rules. Suffice it to say that if an employee has been placed under suspension, without there being any provision of law specifically conferring such a power, such an order of placing an employee under suspension amounts to temporarily preventing the employee from having access to the records and it is only for a temporary period pending further consideration of the disciplinary proceedings. In such cases, the employee would be entitled to be paid 100% of the wages drawn, inasmuch as he has been withheld by the employer from functioning notwithstanding his readiness and preparedness to work. One can usefully refer in this context to the judgment rendered by the Supreme Court in Hotel Imperial v. Hotel Workers Union[1]. For all these reasons, I do not find any illegality in the impugned order and hence, the Writ Petition is dismissed at the stage of admission. I have no doubt in my mind that the disciplinary proceedings initiated against the writ petitioner would be concluded as expeditiously as possible, when the writ petitioner himself has been willingly cooperating with such an enquiry. No costs. ----------------------------------- (NOOTY RAMAMOHANA RAO,J) 22nd June 2009 ksld ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{RLD} [1] 1959 (2) LLJ 544 (SC)