IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE SECOND DAY OF MAY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 186 of 2009 Between: 1 The Dy. Inspector General of Police, Kurnool Range, Kurnool District. 2 The Inspector General of Police, Law & Order, Rayalaseema Region, DGP, Compound Office, Hyderabad. 3 The Chairman State Level Police, Recruitment Board, Hyderabad. 4 The Director General & Inspector General of Police, Andhra Pradesh, Hyderabad. 5 The Govt. of A.P., Rep. by its Principal Secretary, Secretariat, Hyderabad. ..... PETITIONER(S) AND R.S.Madhubabu RSI Kurnool District. H.No. 51-1025 A, Seetharamnagar, Kurnool. .....RESPONDENT 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 to issue an appropriate writ or direction more particularly in the nature of " Writ of Certiorari " calling for the records relating to and connected with the orders dated 28.11.2008 in O.A.No. 8566/2008 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and to quash or set aside the same by holding as erroneous and contrary to law and pass Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent No.: . The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed by the Government seeking to quash the decision rendered in O.A.No. 8566 of 2008 dated 28.11.2008 passed by the A.P. Administrative Tribunal, Hyderabad. The respondent herein, had approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 to declare the action of the first respondent therein-The Deputy Inspector General of Police, Kurnool Range, Kurnool, in issuing the impugned suspension orders vide C.No.C2/346/2008/R.O.O.No. 648/2008 dated 26.9.2008 as illegal, arbitrary and non-application of mind and consequently to set aside the same. The Tribunal allowed the O.A on the ground that the suspension was effected without application of mind and instead the authorities could have resorted to transfer him to a far off place only with a view to see that the applicant does not tamper the records during the course of enquiry. Brief facts of the case are that the respondent while working at D.A.R., Kurnool as RSI was deputed for special duty by the S.P., Kurnool, for area domination at Ahobilam, as the regular RSI incharge of Rudravaram Special Party was on leave, and he was made as incharge of the Special Party at Ahobilam from 27.8.2008 onwards. The Special Party base camp at Ahobilam closed on 16.9.2008 and said special party was directed to go to Rudravaram base camp by superior officer Sri S. Krishna Mohan, R.I. But instead of proceeding to Rudravaram along with special party, the respondent disappeared. He has not given any information about his disappearance/absence to his supervisory officer Sri Krishna Mohan or to any other officer. It is further submitted that since there was no information about his whereabouts, the OSD, Nandyal has conducted fact finding enquiry and submitted a report through S.P of Police, Kurnool to the DIG of Kurnool vide letter dated 26.9.2008 stating that the respondent disappeared from duty, without any leave or permission, unauthorizedly left the special party in the Forest Base, affected with extremists activities at Ahobilam and recommended for suitable disciplinary action for the said gross delinquency. It is also submitted that after receipt of the said enquiry report of OSD, Nandyal, through SP of Police, Kurnool and after careful examination of the matter and having due regard to the facts and circumstances of enquiry report, the respdnent was placed under suspension vide proceedings dated 26.9.2008 for exhibiting gross negligence of duty and reprehensible conduct by leaving the special party in the Forest base affected with extremist activities at Ahobilam, without any incharge and became absent himself from duties unauthorizedly, as it amounts to violation of Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules 1964 (for short “APCS (Conduct) Rules 1964”). In the circumstances, an Article of Charge was issued under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short “A.P.C.S (CCA) Rules, 1991”) vide memorandum of Charge dated 13.10.2008 by disciplinary authority-the first petitioner herein. The respondent having acknowledged the same submitted his explanation to the article of charge and an enquiry officer was appointed to conduct enquiry under APCS (CCA) Rules and accordingly a charge memo dated 13.10.2008 was issued, which reads as under:- MEMORANDUM OF CHARGE “It is proposed to hold an enquiry against Sri R.S. Madhu Babu, RSI, DAR, Kurnool now under suspension under Rule 20 of the APCS (CC&A) Rules, 1991. The substance of the imputation of misconduct or misbehaviour in respect of which the enquiry is proposed to be held is set out in the enclosed statement of Article of Charge (Annexure-I). A Statement of Imputation of misconduct and misbehaviour in support of each article of charge is enclosed (Annexure-II). A list of witnesses by whom and a list of documents by which, the article of charge are proposed to be sustained are also enclosed(Annexure-III and IV). 2. Sri R.S.Madhu Babu, RSI, DAR, Kurnool now under suspension is directed to appear before the undersigned within 10 days of the receipt of this Memorandum and to submit a written statement of his defence and also to state whether he desires to be heard in person. 3. He is informed that an enquiry will be held only in respect of those articles of charges that are not admitted. He should therefore specifically admit or deny ;each article of charge. 4. Sri R.S. Machu Babu, RSI, DAR, Kurnool now under suspension is informed that if he does not submit his written statement of defence on or before the date specified in Para-2 above, or does not appear in person before the undersigned or otherwise fails or refuses to comply with the provisions of Rule 20 of the A.P.C.S. (CC &A) Rules, 1991 or the orders/directions issued in pursuance of the said rule, the enquiry will be held against him exparte. 5. The attention of Sri R.S.Madhu babu, RSI, DAR, Kurnool now under suspension is invited to Rule 24 of APCS (Conduct) Rules, 1964 under which no Government Servant shall bring or attempt to bring any extraneous influence to bear upon any authority for the furtherance of his interest. If any representation is received on his behalf from another person in respect of any manner dealt with in these proceedings it will be presumed that Sri R.S.Madhu Babu, RSI, DAR, Kurnool now under suspension is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rule-24 of the APCS (Conduct) Rules, 1964. The copies of documents furnishes in Annexure-IV are enclosed herewith. 6. The receipt of this memorandum along with copies of documents may be acknowledged.” ANNEXURE-I “Statement of Article of charge framed against Sri R.S.Madhu babu, RSI, DAR, Kurnool now under suspension. *** You, Sri R.S.Madhu Babu, RSI, DAR, Kurnool was kept incharge of special party based at Ahobilam by the Superintendent of Police, Kurnool. You have took charge of special party on 27.8.2008 and performed duties. On 16.9.2008, the Supdt. of Police, Kurnool has ordered to close base camp at Ahobilam and to return to Rudravaram PS for further duties. But you have left the special party in the forest base affected with extremists activities at Ahobilam without any incharge and became absent from duties unauthorisedly. Thus, you have exhibited gross neglect of duty and reprehensible conduct and violated Rule 3 of APCS (Conduct) Rules, 1964 being a Government servant.” ANNEXURE-II Statement of Imputation of misconduct in support of the article of charge framed against Sri R.S.Madhu Babu, RSI, DAR, Kurnool now under suspension. *** You, Sri R.S.Madhu Babu, RSI, DAR, Kurnool was kept incharge of special party based at Ahobilam by the S.P. Kurnool. You have took charge of special party on 27.8.2008 and performed duties of combing operations, road opening and vehicle checking in view of the visits of VIPs to Ahobilam because the Jeer of Ahobilam Peet was camping there. On 16.9.2008, the S.P, Kurnool has ordered the special party to close the base camp at ahobilam and to return to Rudravaram PS for further duties. But, you have left the special party in the forest base affected with extremists activities at Ahobilam without any incharge and became absent from duties unauthorisedly. Thus, you have exhibited gross neglect of duty and reprehensible conduct and violated Rule 3 of APCS (Conduct)Rules, 1964 being a Government servant.” ANNEXURE –III List of Witnessess:- 01. Sri K.V. Mohan Rao, Addl. Supdt. of Police (Operations), Nandyal, Kurnool District. 02. Sri S. Krishna Mohan, RI, DAR, Kurnool. 03. Sri D. Hussain Basha S/o Hussain Peera, PC 191 incharge of Rudravaram Special Party. 04. Sri D.Dasthagiri S/o D.N. Hussain, PC 96 Special Party Rudravaram 05. Sri D. Mabasha, PC 128 special party, Rudravaram 06. Sri M.Balaraju s/o Naganna, PC 437, Special party, Rudravaram. 07. Sri C. Manohar, S/o Venkateswarlu, PC 673, Special Party, Rudravaram. If found necessary some more witness will be examined on behalf of prosecution. ANNEXURE –IV List of Documents: 01. Repsort C.No. 153/SP-Camp/2008, dt 26-09- 2008of Supdt. of Police, Kurnool. 02. Report C.No. 183/OSD-NDL/2008, dt. 26.09.2008 of Addl. S.P. (Operations), Nandyal, Kurnool District. 03. Statement of Sri S.Krishna Mohan, RI, DAR, Kurnool. 04. Statement of Sri D. Hussain Basha S/o Hussain Peera, PC 191 incharge of Rudravaram Special Party. 05. Statement of Sri D.Dasthagiri S/o D.N. Hussain, PC 96 Special Party, Rudravaram. 06. Statement of Sri D. Mabasha, PC 128 Special Party, Rudravaram. 07. Statements of Sri M. Balaraju, PC 437 and C. Manohar PC 673, Special party, Rudravaram. If found necessary some more documents will be filed on behalf of prosecution.” It is stated that in the meanwhile the respondent filed the O.A challenging the suspension orders which was allowed holding that the authorities ought not to have placed him under suspension merely on trivial grounds and they could have transfer him to a far off place with a view to see that the applicant does not tamper the records during the course of enquiry. The learned Government Pleader contended that the Tribunal has committed a serious error and irregularity in interfering with the order of suspension. Ordinarily, the Courts or Tribunals are not required to interfere with the suspension order and it only can direct the authorities to complete and conclude the proceedings within the time frame, when the suspension order was passed pending enquiry. But instead of doing so, the Tribunal exercised jurisdiction which is unwarranted under law and exceeded by overstepping its jurisdiction in directing the authorities to transfer the respondent herein to a far off place or a distant place. The learned Government Pleader has drawn our attention to Rule 8 of Part III of A.P.C.S (CCA) Rules 1991. The relevant portion of Rule 8(1)(a) reads as under: “Rule 8. Suspension: (1) A member of a Service may be placed under suspension from service--- (a) when a disciplinary proceedings against him is contemplated or is pending, or (b) where in the opinion of the authority competent to place the Government servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State, or” A perusal of the Rule clearly postulates that the authority concerned is vested with power to place a Government Servant under suspension pending enquiry. The respondent herein who is working as Reserved Sub Inspector, DAR, Krunool, has left the special party without sanction of leave as he gave the leave application together with medical certificate in the inward Section of the office of the District Superintendent of Police, Kurnool. The receipt of the same was acknowledged but the leave was not sanctioned. The order of suspension dated 26.9.2008 reads as under: “ Sub: POLICE- Kurnool Range, Kurnool –suspension of Sri R.S. Madhu Babu, RSI, DAR, Kurnool from service – Orders –Issued. Ref: Letter C.No. 153/SP-Camp/2008 dated 26.9.2008 of Supdt., of Police, Kurnool. Order:- Whereas it has come to the notice of the under signed who is the competent authority alleging that Sri R.S. Madhu Babu, RSI, DAR, Kurnool has exhibited gross neglect of duty and reprehensible conduct by leaving the special party in the forest base affected with extremists activities at Ahobilam without any incharge and became absent from duties unauthorisedly. And whereas disciplinary proceedings against Sri R.S.Madhu babu, RSI, DAR, Kurnool are contemplated. And whereas the undersigned after careful consideration of the available material and having due regard to the circumstances of the case is satisfied that it is necessary to place Sri R.S. Madhu Babu, RSI, DAR, Kurnool under suspension. Now, therefore in exercise of the powers conferred by Sub Rule (1) of Rule 8 of APCS (CCA), Rules 1991, the under signed place the said Sri R.S. Madhu Babu, RSI, DAR, Kurnool under suspension from the date of communication of this order and he shall continue under suspension until the conclusion of the disciplinary proceedings termination of all Proceedings. It is ordered that during the period this order remains in force, the head-quarters of Sri R.S.Madhu Babu, RSI, will be Kurnool Town and he shall not leave the head-quarters without obtaining the prior permission of the undersigned. It is further ordered that during the period o suspension Sri R.S.Madhu Babu, RSI, shall be paid subsistence allowance equivalent to the leave salary on half pay leave. The DA and other compensatory allowances shall be paid along with subsistence allowance. The quantum of subsistence will be reviewed and revised in terms of FR 53 (1) after three months. Pending review he shall continue to draw the subsistence allowance now sanctioned.” A perusal of the order clearly shows that the respondent has exhibited gross negligence of duty and reprehensible conduct by leaving the special party in the forest base affected with extremists activities at Ahobilam. However, we are not inclined to go into this aspect in detail since the matter is under enquiry and the suspension order is passed pending enquiry. The learned Government Pleader further drawn our attention to Order 257 (1) (2) and (3) of the Andhra Pradesh Police Manual Part-I Volume-I, which reads as under: “ 257 (1): Gazetted Officers before proceeding on leave, should communicate their address while on leave to the Additional Director General of Police (L &O). (2) All subordinate police officers, before proceeding on leave should communicate their address to their immediate superior and keep him informed of any change of address. (3) No subordinate police officer may proceed on leave without sanction.” Admittedly, there is no prior sanction of leave to the applicant. The applicant has given medical certificate stating that he is suffering with diarrhoea and he went to the Deputy Superintendent of Police, Kurnool to give leave application along with medical certificate. The learned G.P. contended that unless the leave is sanctioned he is not supposed to leave the special party in forest based area and, therefore, the authorities placed him under suspension under Rule 8 of APCS (CCA) Rules and accordingly, a charge memo dated 13.10.2008 was issued. The learned Government Pleader further contended that unless the leave is sanctioned leaving the special party in the Forest based area is impermissible under the Police Manual. He placed reliance on the judgment reported in N.VEERRAJU V. COMMISIONER OF ENDOWMENTS, A.P. HYDERABAD AND ANOTHER[1]. In the said judgment it was held as under: “Services-Suspension pending enquiry-Charge sheet filed against the petitioner for possessing disproportionate assets-Departmental enquiry also initiated against him-Keeping the petitioner under suspension is not liable to be challenged on the ground of non-application of mind, when the authority has the relevant information regarding a prima facie case against the petitioner- It cannot also be said that the authorities by following the guidelines issued by the Government has not acted independently-No prior notice need be issued to the petitioner since suspension pending enquiry is not a punishment.” The relevant portion at paragraph 13 reads as under: “13. Learned counsel for the petitioner however, would place reliance upon the decision of the Supreme Court in State of Orissa V. Bimal Kumar Mohanty, AIR 1994 SC 2296, in support of his contention that an order of suspension cannot be passed as an administrative routine. In our considered opinion, the decision upon which reliance is placed by the learned counsel for the petition in no manner supports the case of the petitioner in the instant case for more than one reason. The order of suspension passed against the petitioner by the competent authority in the instant case is not routine administrative order. The allegations leveled against the petitioner as is evident from the charge-sheet and other material are grave. In the very said decision, it is observed by the Supreme Court that “Appointing authority or disciplinary authority should consider…. aspects and decide whether it is expedient to keep an employee under suspension pending…… action. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee……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 farther opportunity to perpetrate the alleged misconduct….” The learned counsel for the petitioner contends that there is no opportunity to the petitioner in the instant case to perpetrate any further misconduct as such for the reason that a charge-sheet had already been ;filed in the criminal case and disciplinary action has already been initiated. It is contended that his continuation in the office would be in no manner detrimental either to the investigation or to the disciplinary enquiry already initiated. In the instant case, the order of suspension would amount to punishment is the submission. We do not find any merit in the submission. In the very said decision, upon which reliance is placed by the learned counsel for the petitioner that the Supreme Court observed that an employee can be placed under suspension order 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 enquiry without any impediment…..” (Emphasis is of ours). In the very said case, the Supreme Court found fault with the Tribunal for having interfered with the impugned order of suspension pending enquiry, since serous allegations of misconduct have been alleged against the employee in the said case. The Supreme Court observed that the Tribunal proceeded in haste in passing the order ‘even before the ink is dried on the orders passed by the appointing authority”. On the other hand, the learned counsel appearing for the respondent contended that the respondent was not incharge of the Special duty and one Teja Murthy was the incharge of the special party, who went on leave and thereafter the respondent-applicant became incharge of the special party. She also contended that the respondent submitted leave application along with medical certificate in the District Police Office, Kurnool and the suspension order was passed by the authority mechanically and in a routine manner without application of mind and the order of suspension is unwarranted and unjust and the authorities ought to have applied their mind. Since the authorities have acted erroneously, the Tribunal has rightly interfered with the order of suspension and directed the authorities that they ought not to have placed him under suspension and they could have posted the applicant to a far off place and therefore, the order of the Tribunal does not call for any interference. She also contended that the Tribunal rightly held that the respondent-applicant was suffering from acute diarrhoea and he has applied leave application together with medical certificate as he was unfit to discharge duties and it is permissible under the Police Manual. She further submitted that the applicant, after safe reaching of special party at Rudravaram Police Station under incharge of Sri B.R Krishnaiah SI of Police Rudravaram Police Station, proceeded to Kurnool and on 17th September by 7.30 AM he deposited his pistol at head quarter bell of arms and submitted leave application along with medical certificate and the same was acknowledged by the authorities. She has drawn our attention to Orders 174.1, 175.2, 183 and 184, which read as under: “174.1 Suspension should be resorted only when it is necessary in public interest or while investigating into grave charges against the officer. Under the CC&A rules a member of service may be placed under suspension. 175.2 Suspension can be resorted only in terms of grave changes like rank insubordination, moral turpitude, riotous behaviour and unruly demonstration which would normally entail dismissal, removal of the person concerned and also when it is not expedient to continue him on duty in the public interest. It should also be considered whether it would suffice if he is transferred to a distant place. 183. Absence without leave:- Absence without leave up to 20 days may be dealt with under CC&A Rules. Leave without pay can be granted for periods of absence though he has other leave to his credit. 184. Absence without leave for more than 21 days amount to desertion, after which the Officer will be declared a deserter. An order declaring the officer a deserter will be passed and served on the officer , or sent to him by registered post, acknowledgement due to his address on record. In that order it should be specifically mentioned as follows: “if you have the intention of joining duty, you should report before the Superintendent of Police, District Chief of Police/Deputy Commissioner of Police/ Commandant immediately for enquiry”. If, within two months from the date of desertion or one month from the date of issue of the order declaring him as deserter, whichever is later, the officer reports before the SP or DCP concerned with a request to take him to duty in response to the order declaring him deserter, he should be taken to duty and placed under suspension, if necessary, depending on the facts of the case, pending enquiry into his conduct. Discretion should be exercised in placing an officer under suspension. A charge will be framed against him, an oral enquiry conducted and orders passed on the merits of the case. If the officer does not report before the SP, within the period specified above, or if the order declaring him a deserter is returned undelivered, a charge should be framed immediately fixing a date for the oral enquiry, and sent by registered post, acknowledgement due, to his address on record. If returned undelivered or if, having received the memorandum of charge, the deserter fails to attend on the date specified in the memorandum, or if his whereabouts are unknown and could not be ascertained, an ex-parte oral enquiry should be held and orders passed on the OE file. If the deserter reports before the SP after the above stipulated period but before the completion of the OE against him, he shall be taken to duty and placed under suspension if necessary pending enquiry against him.” The learned counsel appearing for the respondent also drawn our attention to the judgment of the Supreme Court reported in STATE OF ORISSA VS. BIMAL KUMAR MOHANTY[2], wherein the Supreme Court held that 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 or the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. The relevant portion at paragraph 12, reads thus: “12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or