HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY W.P. No. 18300 of 2011 DATED: 08.12.2011 Between: 1. Govt. of A.P. 2. The Transport Commissioner 3. The Deputy Transport Commissioner .. Appellants and 1. P. Venkata Gangadhara Rao 2. Andhra Pradesh Administrative Tribunal .. Respondents O R D E R:- (Per Hon’ble Sri Justice Goda Raghuram) This is the State’s writ petition preferred against the order dated 29.03.2011 of the learned A.P. Administrative Tribunal, Hyderabad (Tribunal) allowing O.A. No. 1565 of 2011 preferred by the 1st respondent and setting aside the proceedings dated 09.03.2011 issued by the 2nd petitioner – the Transport Commissioner, Government of Andhra Pradesh, Hyderabad. The original applicant, while serving as a Motor Vehicles Inspector, was subjected to a raid of his personal residence and his other houses and of his relatives at various places in Visakhapatnam, Guntur and Vijayawada. The bank lockers of himself and family members were also verified. On allegation that he acquired assets disproportionate to his known sources of income of a value of over Rs.50.00 lakhs, Cr.No. 4/RCA-VSP/2011 was registered under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988. He was arrested on 10.02.2011 and sent to judicial remand. He was in detention for over 48 hours. On 09.03.2011, the Transport Commissioner passed an order (impugned before the Tribunal), which to the extent relevant and material, reads; “As Sri P.V. Gangadhar Rao, M.V.I. Oﬃce of the D.T.C., Visakhapatnam District has been detained in custody for a period exceeding 48 hours, he is deemed to have been placed under suspension with eﬀect from the date of his detention i.e. 10.02.2011 as per Rule 8(2)(a) of the Andhra Pradesh Civil Services (CCA) Rules, 1991. Sri P.V. Gangadhar Rao, MVI shall continue to be under suspension until the conclusion of the proceedings related to the criminal charges against him. It is further ordered that during the period of suspension, the Headquarters of Sri P.V. Gangadhar Rao, MVI, Oﬃce of the DTC, Visakhapatnam District shall be at Visakhapatnam District and he shall not leave the Headquarters without obtaining prior permission of the undersigned. During the suspension period, he shall be paid subsistence allowance as per Rules.” The applicant challenged the order before the Tribunal and relied on a Government Memo dated 26.12.1994 and on an earlier judgment of the Tribunal in O.A. No. 12363 of 2009 to contend that in cases of disproportionate of assets, the Accused Oﬃcer need not be suspended immediately following the registration of the case but may be transferred to a far oﬀ non-focal post to avoid the likelihood of his tampering with the records and inﬂuencing the witnesses. The Government Memo would also state that if the Anti Corruption Bureau ﬁnds during investigation that there is reasonable ground for believing that the Accused Oﬃcer has deliberately failed to cooperate with the Investigating Agency or that he is trying to tamper with the oﬃcial records or inﬂuencing the witnesses or bringing pressure on the Investigating Oﬃcers, it is open to the disciplinary authority to place the Accused Oﬃcer under suspension at that stage, based on the recommendations of the Anti Corruption Bureau to that effect. In other cases, the Memo instructs that the disciplinary authority should consider and decide on the desirability of placing the Accused Oﬃcer under suspension, if he is not already under suspension, as and when a charge sheet is ﬁled against him in a Court of law or where, after investigation, it is decided to initiate regular departmental action for imposing any of the major penalties and a charge memo is served in this regard. The Memo issued by the Government is in the nature of guidelines for the exercise of discretion by the appropriate authority granted the power under the statutory rules to prosecute or initiate disciplinary proceedings against officers, where the disciplinary authority is an agency or authority other than the Government. The Tribunal, relying on the Government Memo dated 26.12.1994 and an earlier judgment of its own in O.A. No. 12363 of 2009 and on a perusal of the order of the Transport Commissioner dated 09.03.2011 was satisﬁed that the suspension of the applicant was not warranted as he was enlarged on bail. The Tribunal also recorded an avoidable observation that: on going through the facts of the remand report and other accompanying documents, there was no material to show that the documents were seized from the house of the applicant and there was no prima facie case to show that the applicant is involving in disproportionate assets case; an observation that is wholly beyond the jurisdiction of the Tribunal having regard to the stage at which the grievance against an order continuing the applicant under suspension was presented before the Tribunal. Be that as it may. Rule 8(2) of the Andhra Pradesh Civil Services (Classiﬁcation, Control and Appeal) Rules, 1991 deals with suspension of members of the service (State or Subordinate) and reads as follows: 8(2) A Government servant shall be deemed to have been placed under suspension by an order of the authority competent to place him under suspension; (a) with eﬀect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty- eight hours; (b) with eﬀect from the date of his conviction if, in the event of a conviction for an oﬀence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation:- The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (c) the order of suspension ceases to be operative as soon as the criminal proceedings, on the basis of which the Government servant was arrested and released on bail, are terminated. On a true and fair construction of the provisions of Rule 8(2) of 1991 Rules, it is clear that suspension from the date of detention of a member of service, where such member is detained in custody whether on a criminal charge or otherwise for a period exceeding forty eight hours, is automatic. On the admitted factual scenario, the applicant was arrested and detained for more than forty eight hours and therefore his suspension is automatic and is brought about by operation of the Rule, which is self-executing. There was no need to pass an order of suspension in the circumstance. Clause (c ) of Rule 8(2) ordains that an order of suspension ceases to be operative inter alia as soon as the criminal proceedings (on the basis of which a member of the service was arrested) is terminated. Since the trial of the applicant is still pending, he must continue under suspension, in view of the mandate of Rule 8(2)(c). However, Rule 8(5) of the 1991 Rules enables modiﬁcation or revocation of suspension by an authority which made or is deemed to have been made the order or by an authority to which that authority is subordinate. On the admitted factual scenario, the applicant is administratively subordinate to the Transport Commissioner and therefore, the Transport Commissioner is competent to modify or revoke or otherwise the deemed suspension operative on the applicant with eﬀect from the date of his detention and continuance of the detention for a period exceeding forty hours and till the conclusion / termination of the criminal proceedings. Such power to revoke or modify is exercisable under Rule 8(5). In the textual context and interplay of Rules 8(2) and (5) adverted to above, the Transport Commissioner is assigned and consecrated the jurisdiction to consider modiﬁcation or revocation of a deemed suspension which continues till termination of the criminal proceedings. On 09.03.2011, there was no occasion for the Transport Commissioner to pass an order to continue the suspension of the applicant since Rule 8(2), a self-executing provision, mandates a suspension and mandates its continuance till the conclusion of the trial. No administrative instruction either could have been issued by the State Government witling down the lineal trajectory of Rule 8(2). The Government Memos, in the circumstances, could only be understood as pertaining to a situation where a member of the service is suspended even in cases of disproportionate assets charges and where such member of the service is not detained in custody for a period exceeding forth eight hours. The Government Memos, therefore, are applicable in the circumstances. On the analysis above, the invalidation of the Transport Commissioner’s order dated 09.03.2011 is upheld since on the text and context of the order read with the relevant statutory provisions, it is neither exercise of any available power under Rule 8(2) nor does it purport to be in exercise of the power under Rule 8(5) of the Rules. Consequently, the deemed suspension of the 1st respondent-applicant is operative with eﬀect from the date of his detention namely 10.02.2011 and would continue till the termination of the criminal proceedings pursuant to Cr.No. 04/RCA-VSP/2011. However, if the 1st respondent-applicant makes a representation to the Transport Commissioner for exercise of discretion, to modify or revoke the deemed suspension operating under Rule 8(2), the Transport Commissioner may exercise the available discretion appropriately, under Rule 8(5). The observations of the learned Tribunal that “there is no material to show that the documents were seized from the house of the applicant and there is no prima facie case to show that the applicant is involved in disproportionate assets case” are unwarranted and are set aside. The writ petition is accordingly disposed of upholding invalidation of the Transport Commissioner’s order dated 09.03.2011 but for the distinct reasons recorded above. The 1st respondent-applicant, is however at liberty to make a representation to the 2nd petitioner for exercise of discretion under Rule 8(5). Sri P. Suresh Reddy, learned counsel for the 1 st respondent-applicant states that such a representation would be made within a period of one week. If such representation is made, the same may be disposed by the 2nd petitioner expeditiously and preferably within a period of three weeks from the date of receipt of such representation. No costs. __________________ GODA RAGHURAM, J 08.12.2011 __________________________ G. KRISHNA MOHAN REDDY, J bcj