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ANDHRA PRADESH HIGH COURT AT AMARAVATI
K. Manmadha Rao, J.
M. Kalpana – Appellant
Versus
State of Andhra Pradesh & Ors. – Respondents
Writ Petition No. 10033 of 2022
Decided On : 17-08-2022
SERVICE LAW - SUSPENSION - PROLONGED SUSPENSION - REINSTATEMENT - SUBSISTENCE ALLOWANCE - ENGAGEMENT OF LEGAL PRACTITIONER - A.P. CIVIL SERVICES (CCA) RULES, 1998, RULE 20(5)(c) - G.O.MS. NO. 526 GENL. ADMN (SER-C) DEPARTMENT, DATED 19.08.2008 - G.O.MS. NO. 679, GENERAL ADMINISTRATION (SER. C) DEPARTMENT, DATED 01.11.2008 - G.O.MS. NO. 86, DATED 8.3.1994 - FR 53(1)(II)(A)(I) - J.K. AGARWAL V. HARYANA SEEDS DEVELOPMENT CORPORATION LTD. AND OTHERS AIR 1991 SUPREME COURT 1221 - Held that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice.
Fact of the Case:
The petitioner, a Junior Stenographer, was placed under suspension for alleged corrupt practices and misappropriation of Government funds. A show-cause notice was issued, and a Memorandum of Article of Charge was served. However, the disciplinary proceedings were not concluded within a reasonable time.
Finding of the Court:
The court held that the impugned order of suspension and the rejection of the petitioner's request to engage a legal practitioner were illegal and arbitrary. The court also directed the respondents to reinstate the petitioner into service, pay her 75% of the subsistence allowance from the date of suspension, and permit her to engage a legal practitioner to defend in the disciplinary proceedings.
Issues: 1. Whether the prolonged suspension of the petitioner was illegal and arbitrary? 2. Whether the petitioner was entitled to engage a legal practitioner to defend in the disciplinary proceedings? 3. Whether the petitioner was entitled to subsistence allowance during the period of suspension?
Ratio Decidendi: 1. The court held that the disciplinary authority had no power to permit the delinquent employee to engage a legal practitioner under Rule 20(5)(c) of the A.P. Civil Services (CCA) Rules, 1998, and that the rejection order issued by the Joint Director was bereft of any reasons and suffered from total non-application of mind. 2. The court held that the petitioner was entitled to engage a legal practitioner to defend in the disciplinary proceedings under Rule 20(5)(c) of the A.P. Civil Services (CCA) Rules, 1998, and in view of the decision of the Hon'ble Supreme Court in J.K. Agarwal v. Haryana Seeds Development Corporation Ltd. and others AIR 1991 Supreme Court 1221. 3. The court held that the petitioner was entitled to payment of subsistence allowance @ 75% from the date of suspension because the order of suspension is 3.6.2020.
Final Decision: The court allowed the writ petition, set aside the impugned orders, directed the respondents to reinstate the petitioner into service, pay her 75% of the subsistence allowance from the date of suspension, and permit her to engage a legal practitioner to defend in the disciplinary proceedings.
JUDGMENT
Dr. K. Manmadha Rao, J. - This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
'.....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in continuing the petitioner under prolonged suspension in pursuance of proceedings of 2nd respondent in C. No. 38/A2-PRs/2020, dated 03.06.2020 and further in not concluding the disciplinary proceedings initiated in pursuance of Charge Memo C. No. 38/ACB-A4/2020-21, dated 30.10.2021 issued by the 2nd respondent and the rejection order in C. No. 38/ACB-A-JD(CZ)/2021, dated 28.03.2022 of the 4th respondent as illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India and further direct the 2nd respondent to permit the petitioner to engage a legal practitioner to defend in the disciplinary proceedings and pass such other orders.'
2. The brief facts of the case are that the petitioner was appointed as Junior Stenographer in the year 2012 and while she was working in the office of 3rd respondent, the petitioner was placed under suspension vide proceedings dated 03.06.2020 on the ground that she committed corrupt practices and misappropriated Government funds and fraudulently withdrawn an amount of Rs. 7,14,600/- instead of Rs. 49,600/- and a case was registered as Crime No. 196 of 2020 on the complaint made by one Mr. K. Janardhan Naidu, Deputy Superintendent of Police, ACB, Tirupati on 28.05.2020. Later a show-cause notice dated 14.08.2021 was issued to the petitioner, for which the petitioner has submitted detailed explanation on 13.09.2021. However, having been not satisfied with the explanation the 2nd respondent issued Memorandum of Article of Charge dated 30.10.2021, for which she submitted explanation on 15.11.2021 and on the same day an Enquiry Officer and Presenting Officer were appointed through different proceedings dated 30.10.2021. More than 20 months have elapsed after her suspension and about 6 months have elapsed after issuance of Charge Memo dated 30.10.2021, till date nothing transpired and no steps taken for conclusion of disciplinary proceedings, which is illegal and arbitrary. Hence inaction of the respondents is questioned in this writ petition.
3. Per contra, the respondents filed counter denying all material averments made in the writ affidavit and mainly contended that as per Rule 20(5)(c) says that the disciplinary authority shall serve copies of the orders appointing the Inquiry Authority and the Presenting Officer on the Government Servant and inform him/her that he/she may take the assistance of any other government servant to present the case on his/her behalf, but he/she may not engage legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary Authority is a legal practitioner or the appointing authorities, having regard to the circumstances of the case, so permits, and ask him/her to finalize the selection of his defence assistance before the commencement of proceedings. It is further stated that, in this case, the Presenting Officer appointed by the Disciplinary Authority is Sri. J. Venkata Rao, DSP, ACB, Guntur. He is not a legal practitioner. Therefore, the Charged Government Servant is not entitled to engage a Legal Practitioner to defend her case before the Inquiry Officer. Still the Government is requesting to permit her to engage a legal practitioner to defence her case before the Inquiry Officer which is against the principles of natural justice. The provisions of Indian Evidence Act 1872 are not applicable to the Departmental Inquiries.
It is further stated that as per G.O.Ms. No. 526 Genl. Admn (Ser-C) Department, dated 19.08.2008, the employees who are under suspension for a period of exceeding 2 years shall be reinstated pending finalisation of the disciplinary/criminal cases against them. However, in exceptional cases, for example, where the charged officer
AI
The refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice.
The principles of natural justice are a fundamental requirement of any disciplinary proceedings and the failure to follow these principles renders the proceedings and any orders passed pursuant to th....
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