IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.12724 of 2009 Between: The Government of Andhra Pradesh Rep.by its Secretary to Government (Ex-Officio) Consumer Affairs, Food & Civil Supplies (V) Department, A.P.Hyderabad and another ..... PETITIONERS AND Sakati Chennaiah and another .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON’BLE MR JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.12724 of 2009 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) This Writ of Certiorari is filed by the State of Andhra Pradesh aggrieved by the order dated 24.03.2009 in O.A.4960/2008 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”). 2. The said O.A.was filed by the 1st respondent herein questioning the order of the Government in G.O.Rt.No.10, Consumer Affairs, Food & Supplies (VS) Department, dated 06.02.2008 in placing the services of the 1st respondent herein under suspension under Rule- 8(2) (a) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereinafter referred to as “CCA Rules”) until further orders. The Tribunal allowed the said O.A. holding that the 1st respondent herein cannot be placed under suspension till the completion of further investigation and till charge sheet is filed, and the petitioners herein are directed to reinstate him into duty. 3. While admitting the writ petition on 29.06.2009, this Court granted interim suspension of the impugned order of the Tribunal. 4. The background of the case is as follows: a) The 1st respondent is being referred to as “the applicant” as arrayed in the O.A. and the 2nd respondent-Director General of Police, Anti Corruption Bureau, Hyderabad is being referred to as “ACB” for the sake of convenience. b) The applicant was initially appointed as Lower Division Enquiry Inspector in Civil Supplies Department on 06.03.1975 and subsequently he was promoted as Upper Divisional Clerk in 1979, and as Deputy Tahsildar in 1982. He worked at Hyderabad, Guntur and Kodad as Assistant Supply Officer. He worked as District Supply Officer at Khammam and Eluru from 2003 to 2007. While so, on receipt of information that the applicant while working in the aforesaid capacities indulged himself in corrupt and dubious means and has acquired huge assets in his name and in the names of his family members, a case in Cr.No.14/ACB-WKH/2007 under Sec.13(2) & 13(1)(e) of Prevention of Corruption Act 1988 (hereinafter referred to as “the Act”) was registered on 18.12.2007. During course of investigation, simultaneous searches were conducted on 20.12.2007 at his flats situated at West Maredpally, Secunderabad, and his house at Kagaziguda, Puranapool, Hyderabad and at his office chambers situated at Karimnagar and seized certain documents pertaining to his assets, income and expenditure. c) The applicant was arrested on 20.12.2007 and was in judicial custody upto 03.01.2008 and released on 04.01.2008. As he was in judicial custody for more than 48 hours, the Government placed him under suspension vide G.O.Rt.No.10, dated 06.02.2008 under Rule-8(2) (a) of CCA Rules. d) The Government also issued orders in G.O.Rt.No.20 dated 24.04.2008 for attachment of his properties as there is a reason to believe that the applicant has committed the scheduled offence punishable under Sec.13(2) & 13(1)(e) of the Act and has acquired assets disproportionate to the known sources of his income standing in his name and in the names of his family members, and accordingly, authorized the Investigating Officer of ACB for filing an application in the Court of the Special Judge for attachment of his properties worth Rs.70,13,909/- described in Annexures-I to V annexed to the said G.O. e) The Government also issued orders in G.O.Rt.No.134, dated 16.10.2008 substituting Paragraph-5 of G.O.Rt.No.10, dated 06.02.2008, clarifying that the applicant shall be deemed to have been placed under suspension w.e.f.20.12.2007 i.e. the date on which he was taken into custody by the ACB officials. f) The suspension order of the applicant was reviewed by the Government vide Memo No.7/VS/2008-9 dated 05.06.2009 and it decided that the applicant shall continue to be under suspension in public interest until further orders. g) The Government also issued orders in G.O.Ms.No.30 dated 09.06.2009 according sanction for prosecution against the applicant under Sec.19(1)(b) of the Act for the offence punishable under Sections 13(2) r/w.Sec.13(1)(e) of the Act and for taking cognizance of the aforesaid offences by a Court of competent jurisdiction. h) Apart from the criminal proceedings, as above, the Government also issued orders in G.O.Rt.No.56 dated 11.06.2009 initiating departmental enquiry against the applicant under Rule-24 of CCA Rules framing the articles of charges and calling upon the applicant to submit his written statement of defence within 10 days from the date of receipt of the said articles of charges. i) Government vide G.O.Ms.No.32, dated 15.07.2009 approved sanction for prosecution of the applicant. 5. The applicant filed the O.A questioning the order of the Government in G.O.Rt.No.10, dated 06.02.2008 under which he was placed under suspension. The Tribunal, initially, by order dated 08.07.2008 suspended the order of the Government in G.O.Rt.No.10, dated 06.02.2008 and finally, allowed the O.A. on 24.03.2009. It is pertinent to mention that before passing the final orders by the Tribunal, the Government issued G.O.Rt.No.134, dated 16.10.2008 substituting the paragraph-5 of G.O.Rt.No.10, dated 06.02.2008 clarifying that the services of the applicant shall be deemed to have been placed under suspension w.e.f.20.12.2007 i.e., the date on which he was taken into custody by the ACB officials and detained for more than 48 hours, under Rule-8(2)(a) of CCA Rules. The said order of the Government in G.O.Rt.No.134, dated 16.10.2008 was not at all questioned by the applicant before the Tribunal. 6. The Tribunal initially suspended the suspension orders of the applicant issued by the Government in G.O.Rt.No.10, dated 06.02.2008 relying on the interim order of this Court passed in WPMP.No.17992/2007 in W.P.No.14322/2007. It is the contention of the petitioners herein before the Tribunal that the facts of the said writ petition are different and distinct from the facts of the present O.A. It is contended that the investigation is still pending and ACB authorities have to open another locker of the applicant and the investigation is not yet completed. But the Tribunal held that opening of another bank locker of the applicant cannot be a ground for keeping the applicant under suspension till further investigation is over. The allegation against the applicant is that he was in possession of disproportionate assets to his unknown sources of income and the Tribunal held that as per the policy of the Government in respect of the disproportionate asset cases, the accused may not be placed under suspension until the report is received from the Director General of Police, ACB and therefore, the applicant cannot be placed under suspension till the completion of investigation and till the charge sheet is filed and accordingly, the petitioners herein are directed to reinstate the applicant into the duty. 7. Sri S.Satyam Reddy, learned counsel appearing for the applicant submits that the case was registered by the ACB on 18.12.2007 against the applicant with respect to possession of disproportionate assets and his services were placed under suspension vide G.O.Rt.No.10, dated 06.02.2008, as amended by G.O.Rt.No.134, dated 16.10.2008 and the entire investigation is completed. He further submits that the applicant was due to retire in October 2008 and he was deemed to have been under suspension from 20.12.2007 till date i.e. for about one year ten months and long suspension of the Government servant should be avoided. He further submits that ACB has already submitted final report, basing on which the sanction of prosecution against the applicant was accorded in G.O.Ms.No.30, dated 09.06.2009 and therefore, the applicant is liable to be reinstated into service, as his written statement in any way would not affect and cause any hindrance to the ACB case. The learned counsel for the applicant further submits that the Government treating the similarly situated employees in uneven and different manner. The Government have been exercising its powers in a discriminatory manner leading unrest and mental agony to the similarly situated public servants, and some of the Government servants who have involved in trap cases relating to bribery and cases relating to disproportionate assets are being treated in a lenient manner. We have heard the rival contentions of the respective parties. The Director of Police, ACB is added as Respondent No.2 in this writ petition to answer the above allegations made on behalf of the applicant 8. Sri V.Ravikiranarao, learned counsel appearing for Respondent No.2-Director General of Police, ACB submits that as per the orders of the Government in G.O.Ms.No.86 General Administration (Services-C) Department dated 08.03.1994 the earlier orders relating to suspension of the Government servants in G.O.Ms.No.480 dated 07.09.1993 are reviewed stating that the suspension order shall be reviewed at the end of every six months and outer limit to continue on suspension is for two years, however, in exceptional cases, considering the gravity of the charges, one could be continued on suspension even beyond the period of two years. Thereafter, the Government issued a Memo No.554/Ser.C/93-6, dated 26.12.1994 giving further instructions in regard to suspension of Government employees involved in cases of trap and possession of disproportionate assets. It is further stated that the Government also issued orders in G.O.Ms.No.526 General Administration (Services-C) Department dated 19.08.2008 giving further instructions relating to the disciplinary cases against the employees who are under suspension for a period exceeding two years for their reinstatement pending finalization of disciplinary cases/criminal cases against them, however, in exceptional cases where the charged officer is not cooperating for completion of investigation/enquiry are required to be reviewed to continue the orders of suspension. 9. It is further stated that the Government issued orders in G.O.Ms.No.415 G.A (Cabinet) Department dated 05.09.2005 constituting the Committee of Group of three Ministers to examine the issues relating to the ACB cases and other disciplinary matters and the Group of three Ministers have submitted a report containing the recommendations and based on which the Government issued various instructions relating to ACB/Vigilance cases in Memorandum Nos.623/Spl.C/A1/2008-1, 623/Spl.C/A1/2008-2, 623/Spl.C/A1/2008-3, 623/Spl.C/A1/2008-4, and 623/Spl.C/A1/2008-5 all dated 15.10.2008 and according to the said Memos it was recommended for completion of the investigation of the registered cases within six months and after receipt of the final report of the investigating agency, the concerned department shall examine further within one month and take a decision as to entrust the case; (1) either for prosecution; or (2) for departmental action; or (3) for placing the accused officer on his defence before the Tribunal for disciplinary proceedings; or (4) for closure of the case and seek the advice of A.P.Vigilance Commission. It is stated that in cases relating to disproportionate assets, the existing margin of 10% of the total income of the accused officer is enhanced to 20%. The attachment of the properties of the accused officer shall be resorted to after obtaining the final report duly taking necessary safeguards to prevent transfer of properties of the accused officer by issuing instructions to the Registration and Revenue Departments. Instructions were also issued to arrest the Government servants in respect of the successful trap cases alone, but in respect of other matters like indirect trap, disproportionate assets cases, arrest of Government servants shall not be resorted to as a matter of routine. The implementation of the said Memorandum No.623/Spl.C/A1/2008-4 dated 15.10.2008 relating to not to arrest the accused officers in disproportionate assets cases was stayed by order dated 24.04.2009 by a Division Bench of this Court. 10. The learned counsel for the applicant further submits that there are no guidelines relating to the cases which are to be referred for the prosecution, for departmental action, for Tribunal for Disciplinary Proceedings (TDP) or for closure of cases. It is stated that the accused officers who are influential and able to mange the heads of department to refer their cases either for departmental action or for TDP for closure of their cases though they are involved either in trap cases relating to bribery and disproportionate assets cases. 11. To examine the aforesaid serious allegations made by the counsel for the applicant, we have called for certain information through ACB counsel. 12. The learned counsel appearing for ACB submits that in so far as the disproportionate assets cases are concerned registered by the ACB from 2004 to 2009, 48 disproportionate cases are registered in 2005 and initially 44 accused officers were suspended, out of which 34 officers have been reinstated and 10 only remained under suspension. The Government directed to prosecute 22 accused officers and referred 7 cases to TDP, 4 cases to Commissioner of Inquiry, 3 cases for departmental action, 9 cases were dropped, 2 cases were withdrawn and in one case orders of the Government on final report is still awaited. Similarly, 61 disproportionate assets cases are registered in 2006 and initially 58 accused officers are suspended, out of which 49 officers have been reinstated and 9 only remained under suspension. The Government directed to prosecute 18 accused officers and referred 10 cases to TDP, 3 cases to Commissioner of Inquiry, 18 cases for departmental action, 5 cases were dropped, and in 7 cases orders of the Government on final report are still awaited. 78 disproportionate assets cases are registered in 2007 and initially 75 accused officers were suspended, out of which 54 officers have been reinstated and 21 only remained under suspension. The Government directed to prosecute 12 accused officers and referred 1 case to TDP, 4 cases to Commissioner of Inquiry, 14 cases for departmental action, 2 cases were dropped, and in 39 cases orders of the Government on final report are still awaited. 89 disproportionate assets cases are registered in 2008 and initially 70 accused officers were suspended, out of which 24 officers have been reinstated and 46 only remained under suspension. The Government directed to prosecute 2 accused officers and referred one case to TDP, 2 cases for departmental action, one cases was dropped, and in 12 cases orders of the Government on final report are still awaited. 13. A perusal of the aforesaid figures submitted by the ACB counsel, it appears that the Government is exercising its discretionary power in uneven manner without there being any set of rules or guidelines for taking various types of action. It is not known under what facts and circumstances, action was dropped against certain officers and it is also not known why the Government is sleeping over the matters even after filing of the final reports are sent by the ACB authorities. 14. In trap cases also, it is stated that the Government withdrawn one trap case in 2006 though the trap case relating to bribery case was successful. It is stated that the Government still not passed any orders in one case though the final report was submitted long back relating to the year 2004, and 3 cases relating to the year 2006, 5 cases relating to 2007, and 85 cases relating to 2008 are still awaiting for the orders of the Government on final report. It is stated that the Government is picking and choosing the officers in a discriminatory manner in referring the cases either for prosecution or for any other four more methods, referred to above. It is stated that one case was dropped relating to 2004, 2 cases each were dropped relating to 2005, 2006 and 2007. 15. We are not inclined to express any opinion with regard to the aforesaid serious allegations made by the learned counsel for the applicant, but the fact remains that uniform action is not being taken by the Government in various cases relating to trap cases as well as disproportionate asset cases. 16. It is not known on what basis in some cases the action is being taken for prosecution and some cases are referred for TDP, Commissioner of Enquiry, departmental action and in certain selective cases the Government has chosen to drop the action and also in some other cases action has been taken for withdrawing the prosecution. No guidelines have been issued in what circumstances the cases have been referred to either for the TDP, Commissioner of Inquiry or departmental action. Even for dropping or withdrawing the prosecution also no guidelines have been laid down and therefore, we are of the opinion that there cannot be any justification on the part of the Government in picking and choosing the cases to act in a different manner. We are also of the opinion that uniform procedure requires to be followed in respect of either trap cases or disproportionate assets cases. 17. Any recruitment and conditions of service of the persons appointed to the public service shall be subject to the provisions of the Constitution of India and the relevant Acts and Rules made thereunder. The Governor of Andhra Pradesh made Rules called the Andhra Pradesh Civil Services (Conduct) Rules, 1964 and under Rule-3 of the said Conduct Rules, the duties of the Government Employees are defined, which are extracted hereunder for the sake of convenience: “ Rule-3: General:- (1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety. (2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government. (3) No Government employee shall act in a manner which will place his official position under any kind of embarrassment. (4) No Government employee shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior, and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, shall obtain written confirmation of the direction as soon thereafter as possible. It shall be incumbent on such official superior to confirm in writing the oral directions given by him, and in any event, he shall not refuse such written confirmation where a request is made by the Government employee to whom such direction was given. Explanation:- Nothing in sub-rule (4) shall be construed as empowering a Government employee to evade his responsibilities by seeking instructions from, or approval of, an official superior where such instructions are not necessary under the scheme of distribution of powers and responsibilities. (5) Every Government servant holding a superior post shall take all possible steps to ensure the integrity and devotion to duty of all government servants for the time being under his control and authority. Explanation:- A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty.” If the Government servant is not devoted to his duty and fails to maintain absolute integrity, discipline, impartiality and sense of propriety, and his behaviour is unbecoming or derogatory to the prestige of the Government and misconduct and himself in any manner either in private life or in public life, such employee is liable for disciplinary action. 18. The Parliament enacted the law relating to the prevention of corruption and for matters connected therewith called the Prevention of Corruption Act, 1988. Under Sec.7 of the Act any public servant takes gratification other than legal remuneration in respect of an official act, is liable to be punished with imprisonment for a period not less than six months, which may extend to five years and also liable to fine. Under Sec.8 of the Act, whoever accepts or obtains, or agrees to accept, or attempts to obtain from any person for himself or for any other person, any gratification by corrupt or illegal means shall also be liable for punishment for a term which shall be not less than six months which may extend to five years and shall also be liable to fine. Similarly, under Sec.9, whoever accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, also be liable for punishment for a term not less than six months which may extend to five years and also be liable to fine. Even the abettors of such offences are also liable for similar punishment under Sec.10 of the Act. Under Sec.11 of the Act, whoever, being a public servant, accepts any valuable thing without consideration from any person concerned in any proceeding or business transacted by such public servant is also liable for similar punishment. Under Sec.13 of the Act, a public servant is said to commit the offence of criminal misconduct, if he accepts or obtains or agrees to accept any gratification or valuable thing other than legal remuneration amounts to misconduct. If he dishonestly and fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or if he, by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his official position, obtains any valuable thing or pecuniary advantage without any public interest and if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income; or acts of misconduct and such public servant who commits criminal misconduct shall be liable to be punished for a term which shall be not less than one year which may extend to 7 years and also liable to fine. 19. Apart from the criminal prosecution under the provisions of the Act, such public servants are also liable for departmental action under the Rules called as the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. The Andhra Pradesh Civil Services (Conduct) Rules, 1964 as well as the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 are framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and of all other powers hereunto enabling the Governor of Andhra Pradesh and these Rules are applicable to every government servant. Under Rule-8 of the CCA Rules, a member of service may be placed under suspension from service where a disciplinary proceeding against him is contemplated or is pending, and where his activities are prejudicial to the interest of the security of the State, or where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Under Rule-8(2), the government servant shall be deemed to have been placed under suspension by an order of the authority competent to place him under suspension 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 48 hours, and if he is sentenced to a term of imprisonment exceeding 48 years and is not forthwith dismissed or removed or compulsory retired consequent to such conviction. If the criminal proceedings are terminated, the order of suspension is liable to be revoked. The disciplinary proceedings as well as penal proceedings are also liable to be initiated against such employees depending upon the gravity of offence/charges. 20. A short question that would arise for consideration in this case is whether the applicant is liable to be continued on suspension pending further investigation. 21. Under Rule-8(2)(a) of CCA Rules the applicant is deemed to have been placed under suspension with effect from the date of his detention as he has been detained for more than 48 hours.