IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 13291 of 2009 Between: Putla Ramanadham, S/o. Sri Prakasha Rao, R/o. H.No. 16-46-1, Vallandhapalem, Machilipatnam, Krishna District. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep. by its Principal Secretary Housing, Secretariat, Hyderabad. 2 A.P. State Housing Corporation Ltd., Rep. by its Managing Director 3-6-184, Urdu Galli, Himayathnagar, Hyderabad. 3 The Managing Director, A.P. State Housing Corporation Ltd., 3-6-184, Urdu Galli, Himayathnagar, Hyderabad. .....RESPONDENT(S) 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 of Mandamus or any other appropriate writ order or direction declaring the action of the 3rd respondent in placing the petitioner under suspension vide Proceedings No. Vig- 1/6994/KRSH/2002-4 dt. 20-6-2009 under Rule-8 (4) of A.P.CS (CC & A) Rules 1991 as illegal, arbitrary and contrary to the said Rules and set aside the same and pass Counsel for the Petitioner :MR.C.RAGHU Counsel for the Respondent No.: GP FOR HOUSING IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 13271 of 2009 Between: K. Gnaneswara Rao, S/o. Sri Raghavaiah, A.P. State Housing Corporation, R/o. H.No.15-6-79, Redla Bazar, Old Guntur, Guntur. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep by its Principal Secretary- Housing, Secretariat, Hyderabad. 2 A.P. State Housing Corporation Ltd., Rep. by its Managing Director, 3- 6-184, Urdu Galli, Himayathnagar, Hyderabad. 3 The Managing Director, A.P. State Housing Corporation Ltd., 3-6-184, Urdu Galli, Himayathnagar, Hyderabad. .....RESPONDENT(S) 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 of Mandamus or any other appropriate writ, order or direction, declaring the action of the 3rd respondent in placing the petitioner under suspension vide Proceedings Rc.No. Vig(1)/6994/KRSH/2002-3, dt. 20.06.2008 under Rule-8 (4) of APCS (CC&A) Rules, 1991, as illegal, arbitrary, and contrary to the said Rules and set aside the same and pass Counsel for the Petitioner :MR.C.RAGHU Counsel for the Respondent No.: MR.K.MOHAN RAMI REDDY The Court made the following : HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P. NOs.13291 & 13271 OF 2009 COMMON ORDER: These two writ petitions raise a common question of law and both the writ petitioners are the servants of the A.P. State Housing Corporation Limited/2nd respondent herein. It was appropriate to decide them together. The petitioner in W.P. No.13271 of 2009 was working as an Assistant Engineer while, the petitioner in W.P. No.13291 of 2009 has been working as a Work Inspector with the second respondent corporation. As a measure of discipline, both of them have been proceeded against by an order passed on 02-12-2008. Punishment of removal from service has been inflicted upon them. Those orders came to be challenged in W.P. No.27115 of 2008 and W.P. No.27139 of 2008 before this court. By order rendered on 21st June, 2009, both those writ petitions came to be allowed by a learned Single Judge granting liberty to conduct the enquiry afresh and take an appropriate decision thereafter. The second respondent corporation carried the matter by way of appeals. The Division Bench of this court speaking through Justice T.Meena Kumari in its judgment dated 17-06-2009 has held as under: “Having perused the order of the learned single Judge, we are of the opinion that there is no material placed either before the learned single Judge or before us to show that the enquiry officer has conducted the enquiry as per the procedure, in the absence of which, the learned single Judge was justified in setting aside the enquiry report as well as the show cause notice issued proposing the punishment of removal from service. We, therefore, do not find any reason to interfere with the order of the learned single Judge. However, the enquiry officer shall conduct the enquiry afresh in accordance with law and submit report within a period of three months from the date of receipt of a copy of this order”. 2. Thereafter, the Managing Director of the second respondent corporation passed four sets of orders on 20th June, 2009. By the first set of orders, the Managing Director reinstated the writ petitioners into service and through the second set of orders, he invoked the power available under Rule 8(4) of Andhra Pradesh Civil Services (CC & A) Rules, 1991, as adopted by the second respondent corporation and treated the writ petitioners to have been placed under suspension with effect from the original date of the removal order passed on 02-12- 2008 and further directed that they shall be continued to be under suspension until further orders. Through the third set of orders, he has appointed a Presenting Officer to present the case against the writ petitioners. The Managing Director, on the very same date has also passed another set of orders appointing an Enquiry Officer. 3. Now, the present writ petitions have been filed challenging the orders of treating the writ petitioners to have been placed under suspension with effect from 02-12-2008 and ordering them to be continued under suspension until further orders. I have heard Sri C.Raghu, learned counsel for the writ petitioners and Sri K.Mohan Rami Reddy, learned counsel for the second respondent corporation. 4. It is not in dispute that the second respondent corporation has adopted the Andhra Pradesh Civil Services (Acquisition, Control and Appeal) Rules, 1991 for regulating the discipline and control over its employees. The learned counsel for the writ petitioners submits that when once the order of removal dated 02-12-2008 has been set at naught by this court, there is no further power available for the corporation to treat the writ petitioners to have been placed under suspension with effect from that date of removal. The learned counsel would submit that the writ petitioners are bound to be reinstated into service and only in the event that the second respondent feels and considers placing them under suspension as needed as a fresh enquiry is ordered, to be held against them, then alone the writ petitioners can be placed under suspension and that too with effect from the date the orders are passed but not with retrospective effect. The learned counsel would elaborate this submission by pointing out that there is no further enquiry ordered by the Managing Director of the second respondent corporation now and it is an enquiry afresh that is being now ordered and hence the necessity to place the writ petitioners under suspension has got to be evaluated afresh taking into account all the antecedents and precedent circumstances. When such an exercise is not warranted, exercising such a power amounts to arbitrary exercise of power and hence the impugned orders are liable to be interfered with by this court. The learned counsel for the petitioner also attempts at the same time, to draw a distinction between a situation covered by regulation 8 (1) with that of Regulation 8 (4). The learned counsel would elaborate the submission by pointing out that, that a member of the service may be placed under suspension where disciplinary proceedings against him are contemplated or where such proceedings are pending and for other circumstances enumerated in clause 1 of Regulation 8. But, in the instant case the disciplinary proceedings have not been initiated for the first time, now, and disciplinary proceedings have been initiated against the writ petitioners much earlier and hence power under Regulation 8(1) should have been sparingly and appropriately used by the Managing Director instead of invoking clause 4 of Regulation 8 which is not applicable. Since, the scope of clause 4 of Rule 8 will have a bearing upon the controversy to be resolved in these writ petitions, it will be appropriate to extract the same: Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a court of law and the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. 5. A perusal of clause 4 of Regulation 8, to my mind, makes the matter very clear; that upon consideration of the circumstances of the case, if it is decided by the disciplinary authority to hold a further enquiry against a servant against whom serious allegations have been leveled for which the penalty of dismissal or removal or compulsory retirement was already inflicted and such a punishment has been set aside, either by the appellate authority or due to intervention of the court, such an employee can be continued under suspension with effect from the original date of imposition of the afore mentioned penalties. In the instant case, both the writ petitioners have been inflicted with the punishment of removal from service by a set of orders passed on 02-12-2008. Both those orders were subject matter of challenge before this court in the two writ petitions as noted supra. This court has found that the orders passed on 02-12-2008 as unsustainable for failure to comply with the procedural safeguards contemplated and provided for under the rules. Further, no employee should be inflicted with the punishment of removal or dismissal from service without being provided a fair and reasonable opportunity of establishing his defense. When once such a protection has been denied by an employer, the court is entitled to interfere with the order of punishment and grant liberty to the disciplinary authority to conduct an enquiry afresh or any further enquiry as is needed in the matter. I therefore, do not find, in principle, any distinction between a fresh enquiry or a further enquiry in the matter. It is merely quibbling with words. 6. It will not be difficult for one to visualize varieties of ways of situations. If an employee has been proceeded against by framing one or more number of charges, the ultimate punishment has got to be necessarily confined to the consideration of the material gathered with regard to the grounds of imputations/allegaqtions, which form the substance of the charges. If the disciplinary authority, based upon the material gathered holds the employee concerned guilty of an altogether new imputation/allegation then it amounts to condemning the employee un-heard or without providing him a fair and reasonable opportunity to defend himself. Therefore, it might be considered appropriate by the court to direct a fresh enquiry to be conducted with regard to the imputation or allegation, which forms the substance of the order of punishment. Similarly, though the disciplinary authority may have been satisfied with regard to the sufficiency of the material that has been during the course of enquiry and arrived at such a conclusion that the finding of the guilt can be recorded against the employee, but nonetheless, either the appellate authority or the court vested with the power of judicial review of such orders, can come to the conclusion that the material available on the record is insufficient to arrive at a firm conclusion that the employee can be said to be guilty of the allegations. In such an event, the appellate authority or the court is also entitled to order for a fresh enquiry or a further enquiry to be conducted into that particular aspect of the matter. Therefore, I cannot see any great distinction between ordering for fresh enquiry or for ordering a further enquiry into the matter. Whole thing depends upon the fact situation prevailing in each case. There could not have been a straightjacket formula answer provided for such situations. If the disciplinary authority comes to the conclusion that further imputations or allegations are either needed to be made or enquired into further, in principle the enquiry on those lines may be required to be conducted. But, however at the same time the disciplinary authority may come to the conclusion that the procedural safeguards have not been adequately followed during the course of enquiry or that the material, which is available on record, has not been appropriately brought for consideration of the enquiry officer, he may order for further enquiry into the very same set of imputations/allegations. Since, I do not see any distinction between situations for ordering fresh enquiry or further enquiry, I do not find any merit in the contention canvassed by the learned counsel for the petitioners. 7. Further, if a person is continued under suspension for a period beyond a specified length of time, say six months, depending upon the regulations governing the conditions of service of such servant, the quantum of payment of subsistence allowance may vary. Rules do provide for enhancement of the subsistence allowance substantially beyond the period of six months, in case the employee is not at fault for the delay. In cases of the instant nature, where the employee is not at fault and the fault entirely lies at the doorstep of the employer/disciplinary authority, perhaps it would be a fit case for consideration for payment of enhanced quantum of subsistence allowance after the expiry of the permissible initial period of suspension. That perhaps is a right which the employee is entitled to ask for. Except clarifying this position, I do not see any merit in these writ petitions and hence I dismiss them at the admission stage. 8. It is needless to clarify that no expression found in this judgment is a reflection on the merits or lack of it of the subject matter of the enquiry. Both these writ petitions stand dismissed. No costs. _________________________ NOOTY RAMAMOHANA RAO, J. JULY 06, 2009. Dsh.