WP/33430/2013 of T.K.Pratap Reddy Vs The A.P. State Housing Corporation Ltd., on 30 December 2013

Conclusion

ORDER:

Heard Sri S.Ashok Anand Kumar, learned counsel for thepetitioner and Sri T.Sudhakar Reddy, learned Standing Counsel forA.P.State Housing Corporation Limited for respondents.

2. Order dated 06.11.2013 passed by the second respondent-District Collector and Executive Director (Housing), Kadapa,placing the petitioner under suspension, pending enquiry, ischallenged in the writ petition.

3. The petitioner was initially appointed as a Technical WorkInspector in the first respondent-A.P.State Housing CorporationLimited and was promoted as Assistant Engineer (Housing) in theyear 2008. Prior to 2009, he worked as Assistant Engineer inProddatur Mandal. Several irregularities appeared to have takenplace in the execution of Indiramma Housing Scheme. A newsitem was published on 13.11.2011 stating that houses weresanctioned in benami names and sold with the collusion of officialsand mediators. Some of the applicants were allotted more thanone house in benami names and payments were made tobeneficiaries without construction of houses and many house siteswere allotted in benami names and some of the houses wereallotted to ineligible applicants.

4. Taking note of the serious allegations, teams wereconstituted under the supervision of Special Officer (Housing), Kadapa and Kurnool Districts, for thorough investigation andverification into the contents of the press note. The investigationteams confirmed that irregularities had taken place inimplementation of the housing programme at Amrutha Nagar,Proddatur with which the petitioner is concerned. The enquiry alsodisclosed misappropriation of funds to an extent ofRs.38,97,23,455/- and shown the complicity of the petitioner inmisappropriation to an extent of Rs.67,28,252/-. As per the report,the petitioner is alleged to have released amounts to benamibeneficiaries and for houses used for commercial purposes whichwere also sold out, unoccupied houses and also for houses withchange of plot numbers, etc. Taking the seriousness of theirregularities, it was thought fit to place the petitioner undersuspension.

5. Learned counsel for the petitioner would submit that neitherare there criminal cases pending nor is there any criminal caseunder investigation, enquiry or trial against the petitioner. Therefore, the suspension order passed by the second respondentin exercise of the powers conferred under Sub-rule (1) (c) and (2)(a) of Rule 8 of Andhra Pradesh Civil Services (CCA) Rules, 1991(for short, the Rules), is unsustainable. According to the learnedcounsel for petitioner, the suspension order is invalid, since theconditions mentioned therein are not fulfilled.

6. I am not in agreement with the contention. No doubt, theimpugned order is said to have been passed in exercise of powerunder the aforesaid provision. But, it cannot be held to beunsustainable so long as the second respondent is otherwisecompetent to pass the order. Rule 8 of the Rules which is relevant is as follows:

“ Rule 8. Suspension:- (1) A member of a Service may beplaced under suspension from service- (a)where a disciplinary proceeding against him iscontemplated or is pending, or (b)

where in the opinion of the authority competent toplace the Government servant under suspension, hehas engaged himself in activities prejudicial to theinterest of the security of the State, or

(c) where a case against him in respect of any criminaloffence is under investigation, inquiry or trial (d)A member of a service may be placed undersuspension from service even if the offence for whichhe was charged does not have bearing on thedischarge of his official duties.

(2) A Government servant shall be deemed to have been placedunder suspension by an order of the authority competent to placehim under suspension- (a)with effect from the date of his detention, if he isdetained in custody, whether on a criminal charge orotherwise for a period exceeding forty-eight hours;detained in custody, whether on a criminal charge orotherwise for a period exceeding forty-eight hours; (b)with effect from the date of his conviction if, in the eventof a conviction for an offence, he is sentenced to a termof imprisonment exceeding forty-eight hours and is notforthwith dismissed or removed or compulsorily retiredconsequent to such conviction.of a conviction for an offence, he is sentenced to a termof imprisonment exceeding forty-eight hours and is notforthwith dismissed or removed or compulsorily retiredconsequent to such conviction.

Explanation:- The period of forty-eight hours referred to inclause (b) of this sub-rule shall be computed from thecommencement of the imprisonment after the conviction andfor this purpose, intermittent periods of imprisonment, if any,shall be taken into account.

(c) The order of suspension ceases to be operative assoon as the criminal proceedings, on the basis of whichthe Government servant was arrested and released onbail, are terminated.”soon as the criminal proceedings, on the basis of whichthe Government servant was arrested and released onbail, are terminated.”

7. Under the aforesaid Rule different situations arecontemplated in the matter of placing an employee under suspension. It provides for suspension where a case against anemployee in respect of a criminal offence is under investigation,enquiry or trial as per clause (1) (c). It also contemplates thesame action in case a disciplinary proceeding is contemplated orpending as per clause (1) (a) and in case in the opinion of thecompetent authority it is necessary to place the employee undersuspension as per clause (1) (b).

8. In the light of the powers specifically conferred under Rule 8(1) (a) and (1) (b), the impugned order cannot be held invalidmerely because it is mentioned therein that it has been passed asper Rule 8 (1) (c) and (2) (a). It is a well settled proposition of lawthat mere mentioning of wrong provision of law does not render anorder invalid if the power is otherwise traceable.

9. Learned counsel for the petitioner further submits thatenquiry has been completed and the petitioner is presently workingat Rayachoty. Therefore, he is not in a position to tamper with theevidence if any, that may be adduced against him and interferewith the process of enquiry and that so long as the object ofenquiry is not disturbed, the suspension of the petitioner is notwarranted. The submission is not tenable. The enquiry that hasbeen conducted is preliminary in nature to find out whether there isany prima facie case against the petitioner. As noted above, theteams were deputed to different places including the place wherethe petitioner had worked and a report to that effect has beenobtained.

10. Admittedly, no regular enquiry has been conducted againstthe petitioner. It is a well settled proposition of law thatsuspension pending enquiry is resorted to as a step-in- aid to

regular enquiry. In State of Orissa V. Bimal Kumar Mohanty[[1]],it has been held that “suspension is not a punishment but is onlyone of forbidding or disabling an employee to discharge theduties of office or post held by him. It is to refrain him to availfurther opportunity to perpetrate the alleged misconduct or toremove the impression among the members of service thatdereliction of duty would pay fruits and the offending employeecould get away even pending inquiry without any impediment orto prevent an opportunity to the delinquent officer to scuttle theinquiry or investigation or to win over the witnesses of thedelinquent having had the opportunity in office to impede theprogress of the investigation or inquiry etc.” Thus, one of theobjects of placing an employee under suspension is that it shouldact as refraining him from availing further opportunity or to removethe impression among the members of service that suchdereliction of duty would pay fruits of misconduct.

11. Learned counsel for the petitioner further submits that thepetitioner was not connected with the work relating to the issueincluding the distribution of house site pattas andrecommendations with regard to the payments to thebeneficiaries. He would, therefore, contend that the petitionerought not to have been suspended without verification of facts.

12. As could be seen from the impugned order, the allegationsagainst the petitioner relate to release of payments andmisappropriation. Therefore, in any event, his complicity in thematter will be known only after the enquiry is conducted and thepetitioner is not precluded from raising all the contentions andprove his innocence by participating in the enquiry.

13. In view of the above, I am of the considered view that thewrit petition is devoid of merits and the same is dismissed. Noorder as to costs.

14. In view of the disposal of the writ petition, W.P.M.P.No.41598of 2013 is dismissed as unnecessary.

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JUSTICE NOUSHAD ALI

Date: 30.12.2013.TJMR

[1](1994) 4 SCC 126