G. David Raju vs Chairman, A.P.S.E.B., Hyderabad and others

The petitioner, a Sub-Engineer in Andhra Pradesh State Electricity Board, is assailing the order of suspension dated 4-11-1997 pending enquiry by Anti-Corruption Bureau authorities in a criminal charge.

The allegation against the petitioner is that while he was working as Sub-Engineer at 130 K.V. Sub-Station, Kurnool, he introduced several unemployed youths to one Smt. K.M. Annapumamma, former Superintendent/Assistant Director of Welfare of Handicapped Department, Kurnool and canvassed for payment of amounts to her on the pretext of securing jobs and the said Annapumamma in turn collected amounts promising jobs to them. A case in Crime No.1/ACB/KUR/97 under Sections 8 and 9 of the Prevention of Corruption Act has been issued against both Annapumamma and the petitioner by the Inspector of Police, ACB authorities. The disciplinary authority, namely, Superintending Engineer, Operation Circle, Kurnool, placed him under suspension under Regulation 11 of the APSEB Employees Discipline and Appeal Regulations vide Memo No.SE/O/KNL/PO/ADM/S1/ D.No.2337 dated 4-11-1997.

The petitioner challenged the above order before the appellate authority, namely, APSEB, represented by Member Secretary on one hand and in Writ Petition No.9738 of 1998 in this Court on the other. A learned single Judge of this Court by order dated 9-4-1998 declined to interfere with the above order of suspension on the ground that an appeal has already been preferred by the petitioner to the appellate authority. However, the appellate authority has been directed to consider alt the issues raised by the petitioner and to dispose of the appeal within a period of four weeks. The appellate authority by order dated 10-6-1998 considered all the contentions raised by the petitioner and decided to continue the suspension of the petitioner until the disposal of the criminal case.

The petitioner is once again in this Court assailing the suspension order dated 4-11-1997 as confirmed by the appellate authority by Memo dated 10-6-1998. It is asserted in the affidavit that the order of suspension under Regulation 11, without contemplating enquiry by the Department, amounts to punishment without opportunity and that the allegation against him is vague and baseless and hence the same is arbitrary, illegal and unconstitutional. It is further contended that the above order is not sustainable as there was no preliminary enquiry and there is neither trap nor any consequential arrest and the alleged offence has nothing to do with the Electricity Board. It is also averred that Regulation 11 requires that where the investigation has not been completed within a period of six months from the date of suspension, the fact shall be reported to the Board for passing any such order as it may deem fit and in the instant case the period of six months has elapsed and no such action is taken by the third respondent. It is finally stated that the petitioner would suffer irreparable loss and hardship unless the suspension order is suspended by this Court.

The petition is opposed by the respondents. The material averments of the petitioner have been denied. After setting out the facts leading to the order of suspension dated 4-11-1997 and confirmation of the same by the Board on 10-6-1998 it is stated that the Board has decided to continue the suspension till the disposal of the criminal case filed by the ACB authorities in the appropriate Court. Adverting to the grounds raised in this writ petition it is averred that no enquiry is contemplated under Regulation 11(a)(ii) where an employee is suspended during investigation of criminal offence or trial, if such suspension is necessary in the interest of the Board. It is also contended that no such preliminary enquiry is contemplated under the discipline and appeal regulations in such cases; that no trap or arrest is necessary; that the acts of the petitioner constitute offences involving moral turpitude and amount to misconduct; that the respondents applied their mind and came to the conclusion that suspension is in the interest of the Board and that the orders of the Board for continuance of suspension beyond the period of six months are obtained and hence the writ petition is liable to be dismissed.

A reply affidavit is filed reiterating the denial of the allegations that he had introduced the unemployed youth to one Smt. Annapurnamma and collected huge amounts for securing jobs. It is further stated that the unemployed youth, whose names were mentioned in the FIR gave voluntary statements before the Principal First Class Magistrate, Kurnool, u/s 164 Crl.PC stating that he has no concern with the payment of the amounts to her. It is also reiterated that the action of the respondent No.3 without giving an opportunity or Notice under Regulation 10 suspending him from service is punishment and the same is against the principles of natural justice. Relying on the Judgment in P.R. Nayak Vs. Union of India (UOI), , it is contended that initiation of disciplinary proceedings is a condition precedent for the suspension of a member of the service whereas no such disciplinary proceedings are initiated in this case and hence the order dated 4-11-1997 is liable to be quashed.

The point for consideration is whether the order of suspension dated 4-11-1997 is liable to be set aside.

Point :

Sri V. Venkata Rami Reddy, learned Counsel for the petitioner strenuously contended that initiation of disciplinary proceedings is a condition precedent for placing a public servant under suspension as held by a constitutional Bench of the Supreme Court in P.R. Nayak''s case (supra), but in this case no disciplinary proceedings are initiated against the petitioner and on this short ground itself the petitioner is entitled for relief. He further contended that neither any show-cause notice is issued nor any preliminary enquiry is held before passing the impugned order of suspension and hence the principles of natural justice have been violated. He also contended that the order of suspension under Regulation 11 would amount to penalty under Regulation 10 and in such a case notice to the petitioner is mandatory. Turning to the allegations levelled by the ACB Sri Venkata Rami Reddy argued that all the witnesses have stated in their statements u/s 164 Crl.PC recorded by the Magistrate that the petitioner has nothing to do with the main culprit Annapurnamma and he had no role to play in the payment of monies to her and hence no case is made out against him. He finally contended that even otherwise that case has nothing to do with his functioning in A.P.S.E.B. and hence the order of suspension is bad.

On the other hand, Sri R. Ramanujam, learned standing Counsel for the respondents has taken me through the relevant record and the Discipline and Appeal regulations. According to him the case falls under Regulation 11(a)(ii) and hence initiation of departmental proceedings is not necessary. He strenuously contended that the petitioner has committed a heinous offence inasmuch as he has connived with one Annapurnamma in cheating several unemployed youth and both of them played fraud upon innocent people and relieved huge monies from them on the false promise of securing jobs to them and such a conduct certainly involves moral turpitude and the authorities, on a consideration of the nature and magnitude of the charge, came to the conclusion that it was not in the interest of the Board to keep him in service. He supported the order of suspension as well as the order of confirmation by the Board and argued that there is absolutely no merit in the writ petition.

I have applied my earnest consideration to all the above contentions. It is firstly contended by Sri Venkata Rami Reddy that no disciplinary proceedings have been initiated against the petitioner and yet he has been placed under suspension and that is contrary to a Judgment of the Constitution Bench (supra). It is not in dispute that no disciplinary proceedings have been initiated by APSEB. When it was reported that the petitioner is one of the accused in Crime No.1/ACB-KUR/97 under Sections 8 and 9 of Prevention of Corruption Act of the ACB, the authorities placed him under suspension. Sri Ramanujam, learned Standing Counsel for APSEB contended that Regulation 11 authorises the disciplinary authority to exercise such a power even without the disciplinary proceedings being initiated. I shall first examine the scope of Regulation 11 of Andhra Pradesh State Electricity Board Employees'' (Disciplinary and Appeal) Regulations, for short the ''Regulations'', reads as under:

"It. Suspension:

(a) A member of a class of service may be placed under suspension from service where:

(i) an enquiry into grave charges against him is contemplated, or is pending, or

(ii) a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the Board''s interest:

Provided that where a member of a service has been suspended by an authority other than the Board and the investigation has not been contemplated and the action proposed to be taken in regard to him has not been completed within a period of six months from the date of suspension, the fact shall be reported To the Board for passing such orders as it may deem fit;

(b).....

(c).....

(d).....

(e)....."

A bare look at the above Regulation shows that suspension is permissible under three contingencies viz., (1) an enquiry into grave charges is contemplated or (2) is pending or (3) a complaint against him of any criminal offence is under investigation or trial. It is, however, noteworthy that it should be in the Board''s interest to place him under suspension.

Keeping the above Rule in view, I shall advert to the ratio in the Judgment P.R. Nayak v. Union of India (supra).

The Hon''ble Supreme Court considered the case of an order of suspension passed by President of India against an ICS Officer and interpreted All India Services (Disciplinary and Appeal) Rules, 1969 with specific reference to Rule 3(1) thereof and held:

"Rule 3 of the All India Services (D & A) Rules, 1969, which has already been set out in extenso, provides for suspension during disciplinary proceedings. Sub-rule (I) of this rule on its plain reading empowers the Government, which initiates any disciplinary proceedings, on being satisfied, having regard to the nature of the charges and the circumstances, of the necessity or desirability of placing under suspension, the member of the Service against whom such proceedings are started, to pass an order placing him under suspension or if he is serving under another Government to suspend him. It does not suggest that suspension can be ordered merely when disciplinary proceedings are contemplated. The language used in sub-rules (4) to (7) also suggests that these rules do not authorise order of suspension of the delinquent member of the Service merely because disciplinary proceedings against him are contemplated. Suspension under those sub-rules may be ordered only either after conviction (deeming provision under sub-rule (6). Clause (b) of sub-rule (7) similarly provides for continuation of order of suspension, if any other disciplinary proceeding is commenced against the delinquent member of the service, during the continuance of the earlier suspension-actual or deemed. The legislative scheme underlying Rule 3 is thus clearly indicative of the intention of the rule making authority to restrict its operation only to those cases in which the Government concerned is possessed of sufficient material whether after preliminary investigation or otherwise, and the disciplinary proceedings have in fact commenced and not merely when they are contemplated. An order of suspension before the actual initiation or commencement of disciplinary proceedings appears to us, therefore, to be clearly outside the ambit of Rule 3 and we find no cogent ground for straining the plain language of Rule 3(1) so as to extend it to cases in which disciplinary proceedings are merely contemplated and not actually initiated or commenced."

It is noteworthy that the Constitution Bench noticed the language of Rule 3 of the relevant Rules and gathered the legislative intention and held so.

I carefully perused the above Judgment in order to see whether the above principle has to be applied in this case also. The Constitution Bench also examined two other cases where different phraseology has been used in the relevant Rules and held-

"The different phraseology, in our view, is designedly used to express different legislative intention."

Evidently the Supreme Court enunciated the ratio that initiation of disciplinary proceedings is a condition precedent for placing a member of service under suspension on account of the phraseology of Rule 3. I venture to deduce the above proposition after wading through the majority Judgment.

"In The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, this Court''s attention was also drawn to Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 made by the President under the Proviso to Article 309 of the Constitution which in express terms provided for suspension of the Government servant concerned when, inter alia, "a disciplinary proceeding against him is contemplated or is pending." This Court did not consider that Rule to be of much assistance in construing Rule 7 of the AIS (D & A) Rules, 1955 which rules were held to constitute a complete code. In our view the difference in the language used in the relevant rules dealing with suspension in the two sets of rules, namely, CCS (CC & A) Rules and AIS (D & A) Rules may not be considered to be wholly irrelevant and unhelpful for discovering the intention of the draftsman in adopting different phraseology while dealing with the same subject of suspension of Government servants of different categories. Rule 12 (1 Xa) and (b) of CCS. CC & A Rules, 1957 is now replaced by Rule 10(lXa) and (b) of CCS (CC & A) Rules, 1965 without any change in the language. Rule 12(1) (a) and (b) reads ;

"12. Suspension : (1) The appointing Authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a Government servant under suspension -

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(b) where a case against him in respect of any Criminal Offence is under investigation or trial.

........... ............ ............. Just as the phraseology of Rule 12dealing with suspension in CCS (CC & A) Rules, 1957 has been retained in the corresponding rule of 1965, the phraseology of Rule 7(1) (a) and (b) dealing with suspension during disciplinary proceedings in AIS (D & A) Rules, 1965 has similarly been retained in the corresponding Rule 3(1)(a) and (b) of 1969. This retention of different phraseology in both these sets of rules does not appear to us to be wholly unintentional; on the other hand it suggests consistency of purpose and continuity of regulation, tending to reflect the different legislative intentions on the question of scope and effect of the rules dealing with suspension in the two sets of rules. Courts may legitimately presume that the draftsman framing Rule 3(1)(a) and (b) of the 1969 Rules which concern us, was aware of the existence of different phraseology used in the rules dealing with suspension in CCS (CC & A) Rules, 1957 and 1965. Similarly the draftsman framing the CCS (CC & A) Rules can legitimately be fixed with the knowledge of the different language used in the relevant rule contained in A1S (D & A) Rules, 1955. If with this knowledge the draftsman stuck to the different phraseology in these respective rules, then can the Court not fairly assume that the actual words used in the different sets of rules were purposely selected with the object of expressing the legislative intention in the clearest and most precise manner? But independently of this consideration we think that the plain language of Rule 3(1)(a) and (b) which concern us does not authorise suspension when disciplinary proceedings have not been initiated but are only contemplated. Incidentally, it may be pointed out that the Patna High Court, when dealing with Tarak Nath Ghosh Vs. The Government of India, Ministry of Home Affairs and Others, , also noticed Rule 1706 (1) (a) and (b) dealing with suspension of railway servants (in a Guide to Discipline and Appeal Rules) which is in identical terms as Rule 12(1)(a) and (b) of the CCS (CC & A) Rules, 1957. Needless to add that we are also aware of another statutory rule (Rule 40(1)(a) and (b) of Railway Protection Force Rules, (1959) made by the Central Government u/s 21 of the Railway Protection Force Act, 1957 (23 of 1957) which provides for suspension of a member of the Force "(a) where an investigation into charges against him is contemplated or pending or (b) where a case against him in respect of any Criminal Offence is under investigation or trial." The existence of such rules only serves to further fortify our opinion already expressed on the plain language used in Rule 3(1 )(a) and (b) which is by no means obscure or ambiguous. The different phraseology, in our view, is designedly used to express different legislative intention."

With all respect to the Hon''ble Supreme Court, I hold that because of different phraseology in Regulation 11 extracted in para 10 ante, order of suspension is valid even without initiating disciplinary proceedings in this case. It is noteworthy that the Superintending Engineer on a due consideration of the gravity of the allegation against the petitioner, came to the conclusion that it would be in the interest of the Board to place him under suspension. He has also followed up the same with the Board, who, by order dated 10-6-1998 decided to continue the suspension till the disposal of the criminal case. Thus, the requirement of proviso to Regulation 11 (a) is also complied with.

It is then contended by Sri Venkata Rami Reddy that no notice is issued to the petitioner and no preliminary enquiry is conducted before passing the impugned order of suspension and hence the principles of natural justice have been violated. A perusal of the Regulations shows that neither any show-cause notice nor any preliminary enquiry are contemplated and hence, it cannot be said that the authorities committed any infraction of any Rule.

It is then contended that suspension under Regulation 11 would amount to penalty under Regulation 10. I perused Regulations 5 an 10 and I find that Clause 9 of Regulation 5 provides for the suspension under Regulation 11 to be treated as a penalty if the authority imposing the penalty considers it necessary to do so. It is seen that as many as 9 penalties have been prescribed under Regulation 5 and one of them is period of suspension under Regulation 11. If at all the authority considers it necessary to impose such a penalty, it may do so after giving notice to the delinquent. It would be too early to say that it is going to be imposed upon the petitioner and hence, the question of notice at this stage does not arise.

It is finally argued on behalf of the petitioner that the witnesses named in the FIR have given favourable statements which are recorded u/s 164 of the Code of Criminal Procedure and hence there is no prima facie case against the petitioner. In my view this submission is devoid of any merit. No such statements are filed by the petitioner and in fact no effort is made to throw any light on the progress of the criminal case. In the absence of the so called 164 statements, I am unable to find any merit in the above contention.

Thus, there is no substance in the contentions raised by the petitioner in the writ petition.

It may not be out of context to place on record another Judgment of the Supreme Court in Allahabad Bank and Another Vs. Deepak Kumar Bhola, , wherein it is held -

"The respondent was a bank employee. The CBI/SPE conducted an investigation and registered a case pursuant to which the Superintendent of Police asked the bank to accord sanction for prosecuting the respondent. The Bank accorded the requisite sanction and also, resorting to clause 19.3 of the First Bipartite Settlement, 1966 suspended the respondent. The charge-sheet filed in the Court by the police showed that the respondent had participated in false issuance of cheque books and had withdrawn money through a fake account in another bank by depositing the cheques issued from those cheque books. The High Court set aside the suspension order. Allowing the bank''s appeal, the Supreme Court held -

What is an offence involving "moral turpitude" must depend upon the facts of each case. However, one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.

Pawan Kumar Vs. State of Haryana and another, , relied on Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, , approved.

In the instant case, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under clause 19.3 of the First Bipartite Settlement, 1966.

The very fact that the investigation was conducted by the CBI which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended."

The Supreme Court also considered the long continuance of suspension pending criminal trial and held that mere expiry of a long period of 10 years since filing of the charge-sheet is not a proper ground for his reinstatement.

As rightly contended by Sri Ramanujam, the petitioner is facing a grave allegation of cheating several innocent unemployed persons and extracting moneys from them on the false pretext of providing jobs and hence, it would not be in the interest of the Electricity Board to allow him in its service. The order of suspension dated 4-11-1997 as confirmed by the Board on 10-6-1998 is, therefore, sustainable and the writ petition is liable to be dismissed.

In the result, the writ petition is dismissed, but without costs.