* HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

AND

HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

+ WRIT PETITION No.8185 of 2020

% 22.05.2020

# A.B. Venkateswara Rao, IPS (AP-1989)

S/o Late Balaswamy, Aged: 55 Years,

R/0 303, Krishna Meadows, LIC Colony,

Vijayawada, Andhra Pradesh.

… Petitioner.

Vs.

$ The State of Andhra Pradesh,

Rep., by its Chief Secretary to the Government,

Secretariat, Amaravthi, Vijayawada,

Andhra Pradesh and two others.

… Respondents

! Counsel for the petitioner : Sri B.Adinarayana Rao, Senior

Counsel appeared on behalf of Sri

Madhava Rao Nalluri, counsel for

petitioner.

! Counsel for the Respondent No.1&2 : Advocate General

! Counsel for the Respondent No.3 : Smt. M. Indrani

< Gist:

> Head Note:

? Cases referred:

1) (1994) 4 SCC 126

2) (2013) 16 SCC 147

3) (2015) 7 SCC 291

4) (2018) 17 SCC 677

5) 2019 SCC Online SC 1549

6) (2008) 16 SCC 14

7) (2003) 6 SCC 675

8) AIR 1966 SC 81

9) 2015 (6) ALD 694

10) 2014 (1) SCC 524

11) AIR 1964 SC 477

12) 2019 (13) SCC 558

13) AIR 1994 SC 2296

14) (1969) 3 SCC 864

15) AIR 2014 SC 2258

16) (2016) 4 ALD 666

17) (1971) 1 SCC 734

18) (1993) 2 SCC 327

19) (1980) 2 SCC 471

20) (1994) 2 SCC 617

21) (2001) 1 ALD 229

22) (2004) 3 SCC 75

23) (1961) 1 SCC 325

24) 1966 Suppl SCR 311

2

25) (1977) 1 SCC 131

26) (1978) 1 SCC 405

27) (2004) 4 SCC 714

28) 2007 (4) ALD 707

29) (2013) 4 SCC 301

3

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

AND

HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

WRIT PETITION No.8185 of 2020

ORDER: (per Hon’ble Sri Justice D.V.S.S.Somayajulu)

This writ petition is filed by the present petitioner seeking

the following reliefs:

“..to issue an appropriate Writ Order or

Direction more particularly one in the nature of

(i) writ of Certiorari calling for the records

relating to OA.No. 020/0149/2020 on the

file of the Central Administrative Tribunal,

Hyderabad Bench, Hyderabad and quash

the order dated 17.03.2020 made therein,

(ii) to issue a Writ of Mandamus declaring

G.O.Ms.No.18 General Administration

(SC.D) Department dated 08.02.2020

issued by the 1st respondent keeping the

petitioner under suspension under Rule 3

(1) of the India Service (D & A) Rules, 1969

as illegal arbitrary and in violation of

Articles 14 and 16 of the Constitution of

India,

and

(iii) consequently direct the 1st respondent to

reinstate the petitioner into service with

all consequential benefits”

The petitioner before this Court is an IPS Officer, who is

working in the rank of Director General of Police. He was

suspended by the first respondent on certain grounds. Before

suspension, he was relieved of his duties as Director General

of ACB. He reported to the General Administration Department

4

on 31.05.2019. Since then, he was not given any posting for a

considerable period of time. Thereafter, he was suspended

from service on 08.02.2020. He questioned the said order of

suspension by filing OA.No.020/0149/2020 before the Central

Administrative Tribunal, Hyderabad.

The same was heard on merits and dismissed vide order dated

17.03.2020. Questioning the same, the present writ petition is

filed for the reliefs mentioned above.

This Court has heard Sri B.Adinarayana Rao, learned

Senior Counsel appeared for the petitioner. The learned

Advocate General appeared for the first and second

respondents. For the third respondent/Union of India,

Smt. M.Indrani, learned standing counsel appeared and

argued the matter.

Counter affidavit of the first respondent has been filed

along with the material papers. The third respondent’s counsel

supported the arguments of the learned Advocate General.

Petitioner’s case:

Sri B.Adinarayana Rao, learned senior counsel for the

petitioner, pointed out the sequence of events that took place

between 30.05.2019 and 08.02.2020. After the new

Government for the State of Andhra Pradesh assumed Office,

the petitioner, who was serving as Director General, ACB was

transferred and not given any posting whatsoever from May,

2019 onwards. Thereafter, the learned senior counsel points

out that on 02.02.2020, the Director General of Police writes to

the Additional Director General, CID to investigate and submit

a report with regard to some alleged irregularities in a tender

5

relating to the procurement and finalization of certain

equipment. This investigation is entrusted by the Additional

Director General, CID to a Deputy Superintendent of Police,

who completed his enquiry within three days and sent a report

dated 06.02.2020. On 07.02.2020, the Director General of

Police sent the report of the enquiry to the State. On

08.02.2020, based on the report , the petitioner was

suspended. The learned senior counsel points out that the

sequence of events clearly reveal that the entire action is

vitiated with malice; was done with undue haste and is also not

according to the Rules. The petitioner is a member of All

India Services and as per the learned senior counsel, a close

reading of the All India Services (Conduct) Rules, 1968 (for

short ‘the 1968 Rules’) and the All India Services (Discipline

and Appeal) Rules, 1969 (for short ‘the 1969 Rules’) would

reveal that the action taken is not as per the Rules. The

learned senior counsel also argues that the petitioner was

working in the Intelligence Department, which is the user-

department of the equipment that was sought to be procured

by the Government of Andhra Pradesh. He points out that the

petitioner or the Intelligence Department is not the tender

approving Authority or the actual procuring agency. As per

him, the tender finalisation etc., was not done by the petitioner.

The procurement was to be done through the State Trading

Corporation, which is an independent Government of India

undertaking. He points out that at various stages, committees

comprising of Senior Officers were involved in the preparation

of the tenders and also the finalisation of the same. The

6

petitioner’s role in this was only to request for the procurement

of the equipment. He contends that as the head of the

Intelligence Department, in view of the of the acute threat

perception in the State of Andhra Pradesh from the Maoists etc,

the petitioner followed up the matter. He also contends that in

the preliminary report and in the latter suspension order etc.,

it is stated that the petitioner’s son is the local franchisee of

the successful bidder in the contract. Relying upon the

preliminary enquiry report he submits that the contract that

was given to the supplier through the STC was cancelled by the

DGP on 24.12.2018. The letter, in which the petitioner’s son

involvement was allegedly pointed out, is dated 22.03.2019,

which is long after the cancellation of the contract itself.

He argues that the petitioner’ son’s role is not at all established.

The learned senior counsel also points out that the contract

itself has been cancelled without any pecuniary loss to the

State. He contends that there was no irregularity whatsoever

and that no monetary loss was caused to the State.

Relying upon the provisions of the 1968 Rules,

the learned senior counsel argues that the definition of member

of a “family” is very clear and categorical. According to him, a

son or a daughter, who is wholly dependent on the Officer, is

alone considered as a member of the family.

He points out that there is virtually no material before the State

to come to a conclusion that the son, who was supposed to be

involved, is actually “dependent” on the petitioner. He points

out that the said individual is financially independent since a

number of years and is not at all dependent upon the

7

petitioner. Relying upon the provisions of the 1969 Rules, the

learned senior counsel points out that the suspension of a

member of All India Services in terms of Rule 3(1) of the 1968

Rules, can only be made if the “circumstances exists” and the

State is satisfied that it is “necessary and desirable” to suspend

an Officer. Therefore, the learned senior counsel argues that

an order of suspension should not be passed for the mere

asking and should be passed upon (a) the circumstances of the

case considering the gravity of the alleged offence ; (b)

satisfaction of the State; and (c) also the need or desirability to

place the Officer under suspension. None of these are present

in this case as per him. It is his contention that the Service

Rules provide for a very strict time frames/method for the

suspension and also for completing the entire enquiry etc. He

points out that till date, the charge sheet has not been served

although three months have elapsed since the petitioner was

suspended. The time bound manner, in which the suspension

is to be imposed and the enquiry is to be completed has not

been followed at all as per the learned senior counsel. He also

points out that although the Government of India, which gave

its consent for the suspension in terms of the prevalent Rules,

directed the State to serve the charge sheet by 07.04.2020, the

same is not done. The learned senior counsel relies upon the

following cases to argue that the order of suspension was not

passed in terms of Rules and after considering the material

available etc.,.

8

1. State of Orissa v. Bimal Kumar Mohanty

1,

2. Union of India (UOI) and Anr. v. Ashok Kumar

Aggarwal

2,

3. Ajay Kumar Choudhary v. Union of India (UOI) and

Ors.

3,

4. State of Tamil Nadu v. Promod Kumar, IPS and

another

4, and

5. P.Chidambaram v. Directorate of Enforcement

5

Relying upon the case law, he submits that even though

a suspension is not a punishment, still it has its own

implications and ramifications, particularly, for a high ranking

Officer. He points out that the State did not consider the facts

and circumstances of the case and on non-existent grounds it

had passed the order of suspension. The learned senior

counsel submits that neither the satisfaction that is necessary

for placing the Officer under suspension nor the necessity or

the desirability are actually spelt out or are clear from the

order. He points out from the facts that there is a clear non-

application of mind, particularly, with regard to the satisfaction

and the desirability. He also argues that there should be

“material available” with the State to come to a conclusion that

the circumstances exist to suspend an Officer. It is his

contention that the material should also be available for

recording the satisfaction and the desirability of continuing the

1

(1994) 4 SCC 126

2

(2013) 16 SCC 147

3

(2015) 7 SCC 291

4 (2018) 17 SCC 677

5

2019 SCC Online SC 1549

9

Officer under suspension. The learned senior counsel

contends that in the case on hand, there is no material to come

to any conclusion nor is the satisfaction present. Desirability

is also absent as per him. He also points that the satisfaction

that is necessary in the case of this nature is to be based upon

some objective standards and material and it cannot be purely

subjective. The learned senior counsel, in all fairness, submits

that he is not asking the Court to go into the merits and

demerits of the entire case, which he says the petitioner will

defend in the appropriate forum. According to him, because of

the

non-application of the mind, because of the failure of the State

to decide on the suspension as required under law and as the

action is vitiated, he is compelled to seek the remedy. He points

out that this Court can and must examine the issues raised

and decide whether there is materi al etc., to place the

petitioner under suspension. As per him, the Court has the

power to see the material to decide the issues raised. Coming

to the order passed by the Central Administrative Tribunal

also, the learned senior counsel points that the order suffers

from a lack of reasons. He points out that the Tribunal did not

examine whether there is a prima facie case or any material

available to come to the conclusion that it did. He also argues

that the petitioner’s role in the selection of the tenderer is not

visible from the available record. These facts, according to him,

were not considered by the Tribunal. He also draws the

attention of this Court to the order passed by the Tribunal,

more particularly, paras 28 to 30 thereof to argue that there

10

are no clear reasons, which would justify the passing of the

order. He also argues that the review committee formed to

extend the suspension also consists of Director General of

Police and the Chief Secretary who were also involved in the

order of suspension. He also contends that they have also not

applied their mind to the facts and circumstances of the case.

Relying on P.Chidambaram’s case (5 supra), learned

senior counsel submits that the attempt of the respondents to

present documents in a sealed cover should not be permitted

and that if any such documents are to be considered, he should

be given an opportunity to rebut the same. Lastly, relying on

the Bench decision of the High Court of Madras in WA.No.3161

of 2019, the learned senior counsel meets the submission of

the Advocate General that the prayers in the writ petition,

namely a Certiorari and a Mandamus are not maintainable. He

further relies upon Deepak Bajaj v. State of Maharashtra

6,

Surya Dev Rai v. Ram Chander Rai

7 and lastly, Dwarka

Nath v. Income Tax Officer, Special Circle, D -Ward,

Kanpur

8 to argue that the prayers in the writ petition are

correct.

Hence the learned Senior Counsel prays that the writ

petition should be allowed.

Case of the respondents:

In reply to this, the learned Advocate General argues with

his usual elan basing on the material available that for a case

6

(2008) 16 SCC 14

7

(2003) 6 SCC 675

8

AIR 1966 SC 81

11

of malice under law, to be established, there should be clear

and categorical pleadings of mala fides against specific named

individuals. He also points out that in the array of parties,

none of the Officers against whom allegations or mala fides are

made, are personally shown as eo nominee parties. He also

states that certiorari is not a first appeal and that this Court

cannot go into an analysis of the available material as if it is a

first appeal to come to a conclusion that the order is vitiated

etc. The sum total of the material that is available is enough

according to the learned Advocate General to justify the

findings of the Tribunal and also to justify the suspension.

The learned Advocate General submits that the norms in

the tender were tweaked, certain specifications were reduced

in order to benefit one particular firm and this was done; as

per him; at the petitioner’s behest. He also points out that this

is not a case of absolute lack of material.

The learned Advocate General argues that once there is some

material to come to a conclusion, the adequacy of the said

material should be judged in the duly constituted enquiry and

not by this Court. Even otherwise, the learned Advocate

General points out that even if the petitioner has any private

interest as per the amended Rules, he is guilty of misconduct.

The learned Advocate General also points out that even after

the cancellation of the contract, the petitioner actively pursued

the State to review the cancellation order. This by itself, as per

the learned Advocate General, is enough to show the personal

interest in the matter. He also points out that the rank and

reach of the petitioner are the factors, which justifies the

12

extension of the suspension. He argues that since the

petitioner is in a very high position in the department, he will

have the reach to influence the process of enquiry. Therefore,

he argues that keeping him out of Office and in suspension, is

a compelling need. The learned Advocate General also argues

that the Central Government/Union of India approved the

suspension and that review committee considered the need to

keep the petitioner under suspension. All of these would show

that there is application of mind and that the State took all the

stipulated legal steps. Relying upon Buddana Venkata

Murali Krishna v. State of A.P. and Ors.

9, Ratnagiri Gas

and Power Pvt. Ltd. v. RDS Projects Ltd. and Ors.

10, Syed

Yakoob v. K.S. Radhakrishnan and Ors.

11, Pratap Mehta

and Ors. v. Sunil Gupta and Ors.

12, State of Orissa v.

Bimal Kumar Mohanty

13, A.K.K.Nambiar v. Union of

India

14, Bhuvnesh Kumar Dwivedi v. Hindalco Industries

Ltd.,

15 , A.Krishan v. State of A.P.

16, Government of India,

Ministry of Home Affairs v. Taraknath Ghosh

17, S.A.Khan

v. State of Haryana

18, State of Punjab v. Gurdial Singh

19,

State of Haryana v. Hari Ram Yada v

20, Andhra Pradesh

State Forest Development Corporation Ltd., Employees

9

2015 (6) ALD 694

10

2014 (1) SCC 524

11

AIR 1964 SC 477

12

2019 (13) SCC 558

13

AIR 1994 SC 2296

14

(1969) 3 SCC 864

15

AIR 2014 SC 2258

16

(2016) 4 ALD 666

17

(1971) 1 SCC 734

18

(1993) 2 SCC 327

19

(1980) 2 SCC 471

20

(1994) 2 SCC 617

13

Union v. Government of Andhra Pradesh, Environment,

Forests, Science and Technology (Forest II) Department

21,

and Union of India v. Amrit Lal Manchanda

22, the learned

Advocate General argues that malice is not made out; that

sufficient material is available and that this Court should not

go into the merits or demerits of the matter to come to any

conclusion about the adequacy of the material. He points out

that as all the procedural safeguards were followed and the

enquiry is yet to be completed, this Court should not interfere

in the same at this stage. He points out that the Central

Administrative Tribunal applied itself to the issues on hand

and came to its own conclusions. The reasons in the order are

neither perverse nor irrational. He also points out that in the

entire writ petition, it is not averred that the order of the

Central Administrative Tribunal contains any errors, which are

apparent on the face of the record. Therefore, he submits that

the writ petition seeking a certiorari should be dismissed. He

points out that both a writ of certiorari and a writ of mandamus

as a consequent prayer does not also lie. It is his contention

that the petitioner should face the enquiry, which should be

allowed to reach its logical conclusions. In order to avoid the

comment about the sealed cover procedure , the learned

Advocate General sent his copies of the file to enable this Court

to examine the same if it wanted.

21

(2001) 1 ALD 229

22

(2004) 3 SCC 75

14

Therefore, the learned Advocate General supports the

order passed and prays that the writ petition should be

dismissed.

Rejoinder:

In the rejoinder, the learned senior counsel reiterates the

submissions and states that the writ petition is maintainable

and that if the order is passed contrary to the Rule position

and the settled law, this Court must interfere. He again

reiterates that the petitioner is entitled to an order as prayed

for.

Determination:

This Court after hearing both the learned counsel, (who

have taken great pains and put in a lot of effort) notices that

there is no strict dispute about the sequence of events as they

have occurred or about the facts. The primary caution sounded

by the learned Advocate General that this Court should not go

into the depth of the issue and decide whether the material

available is enough to impose the punishment or not is also a

submission that is weighing with this Court at this stage. The

adequacy of the material to impose a punishment or to

suspend an employee in the opinion of the learned Advocate

General is a factor that should be left to the Disciplinary

Authority alone. This Court is conscious of the fact that there

is thin line on which this Court is treading at this stage of the

hearing. The law is very well settled on the aspect of judicial

review of such actions and need not be repeated here. Equally

important to note is the case law of the manner in which such

decisions must be reviewed.

15

a) In Rohtas Industries v. S.D. Agarwal

23, while dealing

with the formation of an opinion and discussing The Barium

Chemicals Ltd. v. The Company Law Board

24, the Hon’ble

Supreme Court held as follows:

“The formation of the opinion is subjective but the

existence of the circumstances relevant to the inference is

a sine qua non”.

While approving the opinion of their Lordships Hidayatullah

and Shelat, the Supreme Court held that the existence of

circumstances in question is open to judicial review though the

opinion is not.

(b) In Narayan Govind Gavate v. State of Maharashtra

25,

the Hon’ble Supreme Court held that even a subjective opinion

must be based on some material to pass the tests Courts

impose.

(c) In Mohinder Singh Gill v. The Chief Election

Commissioner, New Delhi

26, the Supreme Court clearly held

that the order alone must be seen/examined and not the

subsequent affidavit or explanation.

(d) In State of U.P. and Ors. v. Johri Mal

27 at para 30, it

was held that evaluation of facts by the decision maker is

necessary to a limited extent to scrutinise the decision making

process.

23

(1961) 1 SCC 325

24

1966 Suppl SCR 311

25

(1977) 1 SCC 131

26

(1978) 1 SCC 405

27

(2004) 4 SCC 714

16

(e) In R. Ramachandra Rao (Died) v Syndicate Bank

28

it was held in para-37 that the Court can see if the condition

precedent for exercising jurisdiction is present or not.

(f) What is a prima facie view that is to be seen in such

cases is spelt out in Nirmala Jhala v State of Gujarat

29.

(g) Both the learned counsel have also relied upon the case

of Bimal Kumar Mohanty (1 supra). In para 11 of the said

judgment, it was mentioned as follows:

“11. It is thus settled law that normally when an

appointing authority or the disciplinary authority seeks to

suspend an employee, pending inquiry or contemplated

inquiry or pending investigation into grave charges of

misconduct or defalcation of funds or serious acts of

omission and commission, the order of suspension would

be passed after taking into consideration the gravity of the

misconduct sought to be inquired into or investigated and

the nature of the evidence placed before the appointing

authority and on application of the mind by disciplinary

authority. Appointing authority or disciplinary authority

should consider the above aspects and decide whether it

is expedient to keep an employee under suspension

pending aforesaid action. It would not be as an

administrative routine or an automatic order to suspend

an employee. It should be on consideration of the gravity

of the alleged misconduct or the nature of the allegations

inputted to the delinquent employee. The Court or the

Tribunal must consider each case on its own facts and no

general law could be laid down in that behalf. Suspension

is not a punishment but is only one of forbidding or

disabling an employee to discharge the duties of office or

post held by him. In other words it is to refrain him to avail

further opportunity to perpetrate the alleged misconduct

or to remove the impression among the members of service

that dereliction of duty would pay fruits and the offending

28

2007 (4) ALD 707

29

(2013) 4 SCC 301

17

employee could get away even pending enquiry without

any impediment or to prevent an opportunity to the

delinquent officer to scuttle the enquiry or investigation or

to win over the witnesses or the delinquent having had the

opportunity in office to impede the progress of the

investigation or enquiry etc. But as stated earlier, each

case must be considered depending on the nature of the

allegations, gravity of the situation and the indelible

impact it creates on the service for the continuance of the

delinquent employee in service pending enquiry or

contemplated enquiry or investigation. It would be another

thing if the action is actuated by mala fides, arbitrary or

for ulterior purpose. The suspension must be a step in aid

to the ultimate result of the investigation or enquiry.”

Similarly, in Ashok Kumar Aggarwal (2 supra),

at paras 21, 22, it was held as follows:

“21. The power of suspension should not be exercised in

an arbitrary manner and without any reasonable ground

or as vindictive misuse of power. Suspension should be

made only in a case where there is a strong prima facie

case against the delinquent employee and the allegations

involving moral turpitude, grave misconduct or

indiscipline or refusal to carry out the orders of superior

authority are there, or there is a strong prima facie case

against him, if proved, would ordinarily result in reduction

in rank, removal or dismissal from service. The authority

should also take into account all the available material as

to whether in a given case, it is advisable to allow the

delinquent to continue to perform his duties in the office

or his retention in office is likely to hamper or frustrate the

inquiry.

22. In view of the above, the law on the issue can be

summarised to the effect that suspension order can be

passed by the competent authority considering the gravity

of the alleged misconduct i.e. serious act of omission or

commission and the nature of evidence available. It

cannot be actuated by mala fide, arbitrariness, or for

18

ulterior purpose. Effect on public interest due to the

employee's continuation in office is also a relevant and

determining factor. The facts of each case have to be taken

into consideration as no formula of universal application

can be laid down in this regard. However, suspension

order should be passed only where there is a strong prima

facie case against the delinquent, and if the charges stand

proved, would ordinarily warrant imposition of major

punishment i.e. removal or dismissal from service, or

reduction in rank etc.”

Lastly, in the judgment reported in A.K.K.Nambiar’s case

(14 supra), which is relied upon by the learned Advocate

General, the Constitution Bench of the Hon’ble Supreme Court

of India held as follows:

“10. The appellant contended that the report of the

Central Bureau of Investigation was made mala fide. The

appellant appeared before the investigation authorities.

We are not concerned with the correctness and the

propriety of the report .We have only to examine whether

the order of suspension was warranted by the rule and

also whether it was an honest exercise of powers. The

order of suspension satisfied both the tests in the present

case.” Emphasis supplied.

Therefore, from a conspectus of the case law that is

mentioned above, it is clear that the Court must see whether

the order of suspension was warranted by the Rule and

whether it was an honest exercise of power. The subsequent

cases, which are mentioned above, state that the order should

be passed taking into consideration the gravity of the

misconduct, the nature of the evidence and ultimately,

the application of mind. The need and necessity for keeping

19

the Officer under suspension is also a factor that should be

kept in mind by the Officer who suspended the employee.

The material relied upon to come to a subjective conclusion

also can be examined by the Court. The order of suspension

and the material before the Authority can be examined to

decide whether the decision making process is an honest

exercise or not.

In the case on hand, the petitioner has come to Court

with a very specific plea in the writ petition, which is mentioned

in ground (1) of the grounds of challenge. Relying upon the

Rule, they state that the “circumstances satisfaction, necessity

or desirability” are not considered.

The gravity of the charges were also not considered. This is

spelt out in sub-para (1) of para 10 of the grounds in the writ.

Similarly, in sub-paras (2) and (3) of para 10, it is stated that

the Tribunal did not notice that the condition precedent for

keeping the Officer under suspension is also not considered.

The need for the satisfaction of the Officer being kept under

suspension is also not considered as per sub-para 10(3).

In sub-para 10(4), the sequence of events are described.

In sub-para 10 (e), it is mentioned that except one letter dated

22.03.2019, there is no tangible evidence to connect the

petitioner’s son to the tender. The definition of the member of

the family is also mentioned in this para to argue that the

petitioner’s son does not satisfy the definition. It is also

mentioned that there is no evidence to connect the petitioner

to the tender finalisation.

20

In this writ petition, a counter was filed, wherein the

stand of the State was spelt out. A rejoinder is also filed,

wherein it is reiterated by the petitioner that there is a

non-application of mind and that the law on this subject, which

prescribes the pre-conditions for placing the petitioner under

suspension were overlooked. It is also urged that the

petitioner’s son is not the CEO of the Indian franchisee and

that there is no evidence to support the case.

Order of the Central Administrative Tribunal:

At the outset this Court proposes to look in the order

passed by the Tribunal, which is impugned in the writ petition.

In the original application - OA.No.020/149/2020, which

was filed before the Tribunal, specific issues are raised as the

grounds for the relief. Paragraph 5(a) 5(i) and 5(j) of the original

application filed before the Tribunal raise specific grounds

about the suspension order that has been passed. The same

are denied in the counter filed before th e Central

Administrative Tribunal in paragraphs 10, 18 and 19.

A rejoinder is also filed, wherein in para 8, the grounds are

spelt out. It is again reiterated that the petitioner was not the

sole Officer involved, that he was merely the head of the

indenting wing and not solely responsible for the alleged

scaling down the requirements or the so-called tweaking of the

tender condition and that it is collective effort etc.

The lack of evidence about the role of son is again pointed out.

A reading of the impugned order shows that one of the

three main grounds urged is that the order of suspension

cannot be passed without the charge sheet being issued.

21

In the opinion of this Court, the Tribunal rightly went into the

Rule position and basing on the Rules came to a conclusion

that an Officer can be placed under suspension even if

disciplinary proceedings are pending or contemplated.

The other two grounds that were seriously argued are

about (a) the justification for the suspension (para 28 of the

impugned order); and (b) the satisfaction being based on

material (para 29 and 30).

After hearing the submissions of both the learned

counsel and considering the case law, this Court notices that

the Tribunal in the light of the issues raised should have

considered whether there was prima facie material available

with the respondents for coming to a conclusion about the need

for suspension. The process of decision making and the

material available should have been examined by the Tribunal.

The petitioner has gone on record stating that the investigation

that is carried out is not at all proper. He also pleaded that

there is no objective assessment of the material. He pointed

out that on the basis of the vague allegation,

he was suspended. It is also specifically averred that the

suspension should not have been ordered as there is no

possibility of the petitioner interfering with the enquiry. This

was denied in the written statement/counter that was filed.

The role of the son was also highlighted by the State which was

denied by the petitioner. In the light of those pleadings and

the documents that are filed before the Tribunal, its order has

to be examined to decide its intrinsic merit.

22

Para 28 of the impugned order deals with justification.

However, a reading of para 28 of the impugned order shows

that the Tribunal did not even discuss about the need or the

necessity for keeping the Officer under suspension was made

out. In the course of the submission, learned Advocate General

argued that as the petitioner was a senior Officer, he would

have access to the material and witnesses; that there is a

chance that he can influence the course of the enquiry.

However, a reading of the para 28, does not show that the

existence of such an apprehension was made out or noticed by

the Tribunal. Even the Tribunal did not also refer to any prima

facie averment in a document or elsewhere, which would

support the submission of the State that there is a likelihood

of the petitioner influencing the enquiry. The fact that the

petitioner is a senior IPS Officer cannot lead to an irresistible

conclusion that he would influence the future course of the

enquiry and/or hamper the same. There should be some link,

however tenuous, for this conclusion to be drawn. In the

opinion of this Court, the same is lacking in the order of the

Tribunal.

In paragraphs 29 and 30, the Tribunal also discussed

about the availability of material for placing the Officer under

suspension. The Tribunal pointed out that judicial review can

extend to verifying the existence of the material and not the

adequacy thereof. In para 30, the Tribunal said that there is

certain material pertaining the procurement of the equipment,

but whether any irregularity has taken place or not can only

be examined in the enquiry. Therefore ,

23

the Tribunal came to a conclusion that it cannot be said that

there is no material. This finding has to be examined in the

light of the case law that has been cited.

For a Court or a Tribunal to come to a conclusion that

the order of suspension is justified, there should be material

about (a) the gravity of the misconduct; (b) some evidence

placed before the Authority; and (c) an application of mind by

the Authority; and (d) necessity for placing the Officer under

suspension. Unless these factors are satisfied, in view of the

judgements of the Hon’ble Supreme Court of India cited above,

the Tribunal cannot come to a conclusion about the

correctness of the suspension order. The case law on the

subject which is mentioned above does not preclude or prohibit

a Court or Tribunal from looking into the material. Unless such

an exercise is carried out the Court or Tribunal cannot arrive

at a conclusion about the correctness of any impugned action

or order.

The Tribunal held that sufficiency of evidence is for the

Disciplinary Authority to decide, but in the opinion of this

Court, the Tribunal was bound to look into the existence of the

material and find a link; at least, prima facie between the

petitioner’s role/actions and the finalization of the tender etc.,

in favour of the “favoured” supplier which would lead to a

justification of the suspension. In fact, in para 21 of the Ashok

Kumar Aggarwal ’s (2 supra) case, it is stated that there

should be a strong prima facie case against the petitioner,

which would lead to punishment as detailed and also a

consideration of all the available material. This necessarily

24

entails some examination of the material to establish the

petitioner’s specific role. This aspect has not been discussed

by the Tribunal in paragraphs 29 and 30.

This Court also notices that the “reasons” for the

conclusion (which would enable this Court to come to a

conclusion whether there was justifiable material) are lacking

in the impugned order. Reasons would indicate the connection

between the material and the conclusion.

The thought process of the Court will be in the reasons.

The failure to give reasons in the opinion of this Court vitiates

the order of the Tribunal. The reasons would have enabled this

Court to appreciate the conclusions of the Tribunal.

Order of Suspension – G.O.Ms.No.18 dated

08.02.2020:

A prayer is also made in the writ petition to issue a writ

of Mandamus declaring the order of suspension as illegal and

arbitrary. In view of the detailed submissions made and to

come to a conclusion about the correctness of the order passed

by the Tribunal and for the purpose of the two prayers, this

Court is now proposing to go into the issue of the suspension

order dated 08.02.2020.

The impugned order dated 08.02.2020 under which the

petitioner was placed under suspension reads as follows:

“2. Now, therefore, in exercise of the powers

conferred under Rule 3 (1) of the All India Services

(Discipline and Appeal) Rules, 1969, the Government of

Andhra Pradesh hereby place the said Sri A.B.

Venkateswara Rao, IPS (A.P:1989), Director General of

Police, under suspension in public interest with immediate

effect, pending initiation of disciplinary proceedings.”

25

Prior to this, a memo dated 03.02.2020 bearing

R.C.No.237/H2/2017-20 was issued by the Director General

of Police requesting the Additional Director General, CID to

enquire into the matter thoroughly and submit a report.

The Additional Director General, CID, ordered a Deputy

Superintendent of Police to conduct the enquiry. A report of

the said preliminary enquiry dated 06.02.2020 is placed before

this Court. The submission of the learned counsel for the

petitioner is that this preliminary enquiry is just an eye wash,

issued with malice, that it does not consider the rule position,

does not record the satisfaction required or the facts and

circumstances of the case. On the other hand, the learned

Advocate General submits that since this is a preliminary

enquiry, it can only have prima facie conclusions and that after

the collection of the evidence and other material, the final

enquiry will be conducted.

While appreciating the submissions made, this Court

which is bound by the case law cited above will have to see if

the material that was available was enough for the Appointing

Authority to pass the order of suspension. In Bimal Kumar

Mohanty’s case (1 supra), the Hon’ble Supreme Court said

that the nature of the evidence placed before the Appointing

Authority, the gravity of the misconduct, application of mind

and the need or necessity to pass an order of suspension must

be clear. In Ashok Kumar Aggarwal’s case (2 supra), the

Hon’ble Supreme Court held that there should be a strong

prima facie case (against delinquent) leading to a major penalty

26

punishment. The Authority should take into consideration all

the available material and lastly, the Authority should decide

whether it is advisable to allow the delinquent to continue to

perform his duties or his retention in Office is likely to hamper

the enquiry. In A.K.K.Nambiar’s case (14 supra), the

Constitution Bench held that the suspension should be

warranted by the rules and it should be an honest exercise of

power.

A reading of the order of suspension states that the

Government has carefully examined the report of the Enquiry

Officer. Relying upon this and the subsequent confirmation of

the order of suspension by the Central Government as

warranted by the Rules, the learned Advocate General argued

that there is an application of mind. However, the submission

of the leaned Senior Counsel detailed above and the issues

raised in the writ merit a further examination of the facts and

submissions.

The preliminary report dated 06.02.2020 alone is being

considered at this stage as this is the basis for the impugned

suspension order.

Para 2 of the report shows that a process of procurement

was initiated in 2017-18 and demonstration was witnessed by

a team of Officers at the BSF Camp, New Delhi on 31.01.2017.

Thereafter, a team of Officers including the Director General of

Police and the petitioner visited Israel along with a technical

consultant in April, 2017 and came to a conclusion that the

equipment is useful. Later, in June, 2017, a proposal was

submitted to the Government to procure the equipment. The

27

Government and the Ministry of Human affairs approved the

same and the actual procurement was given to State Trading

Corporation. The Deputy General of Police constituted a

purchase committee (which according to the preliminary

report, did not consist of certain members). The tender was

floated twice, but due to lack of bidders and other reasons, the

same was cancelled. Thereafter, a third revised tender was

given for re-floating. As per this report certain remarks and

suggestions made by Senior Officers were overlooked and the

tender was pushed through hastily by altering the tender

conditions. Thereafter, four bids were received but three

bidders were disqualified.

The first conclusion reached in the enquiry report is that

three out of the four bids are merely supportive bids from

people “who do not appear to have adequate experience”. It is

also mentioned that as per the letter dated 22.03.2019, the son

of the petitioner is the local franchisee. Therefore, the first

conclusion reached is that the procurement of the finalisation

of the bid is not done properly.

In the second conclusion, bullet points are given which

are a cryptic reproduction of the paragraphs in the report. In

the ultimate conclusion, it is said that no technical person or

user was included in the purchase committee or the technical

committee. Lastly, it is concluded that the petitioner’s son was

a representative of the successful bidder. Therefore, Rule 4(3)

(a) of the 1968 Rules was flouted as per the report.

It was ultimately concluded that the irregularities were wilfully

done for pecuniary gain by making payments to purchase the

28

equipment. Based on this, the Appointing Authority

suspended the petitioner.

As pointed out by the learned counsel appearing for the

petitioner, the 1968 Rules, which are mentioned in the

preliminary report were not considered by the Appointing

Authority. Rule 4(3) (a) of the 1968 Rules is as follows:

“4(3)(a) No member of the Service shall in the discharge of

his official duties, deal with any matter relating to, or

award any contract in favour of a private undertaking NGO

or any other person, if any members of his family is

employed in that private undertaking or NGO under that

person or if he or any member of his family is interested in

such private undertaking or NGO or other person in any

other manner.”

The definition of a member of a family in Clause 2(b) is as

follows:

“2.(b) ‘member of family’, in relation to a member of the

service, includes— (i) the wife or husband as the case may

be of such member, whether residing with (such member)2

or not, but does not include a wife or husband separated

from the member of the Service by a decree or order of

competent court; (ii) the son or daughter or the step-son

or step-daughter of such member and wholly dependent

(on such member) but does not include a child or step-

child who is no longer in any way dependent (on such

member) or of whose custody the member of the Service

has been deprived by or under any law; ….”

Therefore, it is contended by the learned senior counsel

for the petitioner, that the son or daughter who was not

dependent on the petitioner cannot be considered as a member

of the family.

Apart from that, as he pointed out, the procurement

began in the year 2017, the work was entrusted to STC for

29

floating the tender, the then Director General of Police

constituted a purchase committee, the demonstrations were

witnessed on 31.01.2017; later, a team visited Israel in April,

2017 to conclude about the suitability of the equipment.

Thereafter, since the tender floated twice was not successful,

another tender was floated, scaling down the specifications etc.

However, he points out that the prima facie role of the petitioner

in tweaking/reducing or changing the conditions of the

contract/tender is not mentioned. This is apparent from the

report. Even otherwise, as can be seen from the report, he

points out it is merely said that three out of the four bidders

“do not appear” to have adequate experience and are suspected

to be involved for the purpose of the tender only. The tender

was also cancelled as per the preliminary report itself on

24.12.2018. There is no mention about the monetary loss in

the preliminary report. Ultimately, the participation of the son

is highlighted without any clarity of the exact role played by

him. The learned senior counsel submits that the reasons for

the disqualification of three bidders, for the cancellation etc.,

are also not clearly mentioned.

The ultimate conclusions of the preliminary report are

that (a) the specifications, parameters were changed to suit

some vested interest and (b) the son of the petitioner gave a

demonstration of the equipment.

This Court in line with the judgments cited above has

examined the submissions made and the documents.

The gravity of the misconduct and the nature of evidence are

matters which should weigh with the Appointing Authority to

30

decide on the suspension. Similarly, there should be a strong

prima facie case at this stage to come to a conclusion that the

delinquent is likely to be imposed major penalty. If, the

available material before the Appointing Authority for passing

the order of suspension dated 08.02.2020 is examined,

it does not lead to a conclusion that the petitioner himself was

solely responsible for reducing the specifications, parameters,

payment conditions etc.,. The preliminary report does not

specify that the petitioner alone had an important role in the

reduction of the parameters, payment conditions etc. The

exact role of the son is not mentioned particularly as the earlier

visits of the Officers to Israel etc., are mentioned. The reasons

for the disqualification of the three bidders; their bids etc., are

not mentioned. The gravity of the offence, in the opinion of the

Court, is not clearly considered and a strong prima facie case

in line with the decision in Ajay Kumar Choudhary ’s case (3

supra) is not ex facie visible in the suspension order. Therefore

this Court opines that there is no material to justify the placing

of the petitioner under suspension. This Court also holds that

the “circumstances” and the “satisfaction” as needed under the

rule in question are not present.

Next point to be seen is about the continuation of the

suspension. The petitioner was initially suspended on

08.02.2020 as required under the Rules. The same was also

approved by the Government of India. Therefore, it was argued

that there is application of mind by the State.

This Court has noticed the case law on the subject and the

same was referred to more than once in this order already. The

31

need to keep an Officer under suspension and to continue his

suspension is necessary if there is a likelihood of the Officer

impeding the progress of the investigation or the enquiry. The

Authority should consider all the available material to come to

a conclusion that it would not be desirable to keep the

delinquent in Office, since he is likely to hamper or frustrate

the enquiry.

Therefore, apart from a strong prima facie case, there

should be satisfaction based on some material to come to a

conclusion that the Officer should likely to hamper or frustrate

the enquiry. This is what is mentioned as “necessity or

desirability” in the Rule. In the case on hand, this Court does

not find any whisper anywhere in the material before the

Authority that there is every likelihood of the petitioner

hampering the investigation or the enquiry. If the judgement of

the Hon’ble Supreme Court is taken into consideration,

it clearly says that the Authority should take into account all

the available material before reaching th e conclusion.

Therefore, in the opinion of this Court, there should be some

material to justify the finding that the Officer should be

kept/continued under suspension. The records of this case do

not disclose any such reasonable apprehension or likelihood,

which is based on some material.

The other question that remains is the role of the son in

the tender finalisation. Both the learned counsel have taken

great pains to draw the attention of this Court to the definition

of a family, conflict of interest rule etc. The learned senior

counsel appearing for the petitioner has argued that the

32

purchase of the equipment was mo oted in June 2017, that

various committees were constituted and that teams of Officers

have participated in the finalisation of the tender. A

Government of India undertaking called STC floated the tender.

The tender floated was cancelled twice and that ultimately, a

final tender was floated. Even the final tender committee dated

26.06.2018 was attended by a number of Office rs and not

merely the petitioner and that the son's alleged role is only

borne out by a letter dated 22.03.2019, which is long after the

cancellation of the tender dated 24.12.2018.

The first and foremost submission of the learned Senior

Counsel is that the son is independent of the father and will

not fit into the definition of a member of the family. He states

that this is asserted in the writ petition etc.,. Therefore,

learned Senior Counsel argued that the role of the son is

inconsequential. At this stage, this Court cannot go into this

aspect in detail, particularly as no material is available to show

the financial independence of the petitioner’s son. This Court

is only assessing the available material before the first

respondent-Authority for passing the suspension order.

As pointed out earlier, the Authority is bound to sift through

the available material to come to a conclusion that there is a

strong prima facie case available against the delinquent. If the

report that is placed before the Appointing Authority is

examined (the report of the preliminary enquiry of the Deputy

Superintendent of Police), it does not talk of the presence of the

son in the initial meetings, tender finalization, visits etc. Only

after discussing the third tender, it is mentioned that the son

33

of the petitioner is the local franchisee. The basis for this is a

letter dated 22.03.2019. In view of this, this Court has to

conclude that assuming that the son was involved as a local

franchisee, the link between the tender, the reduced tender

conditions etc., and the influence of the petitioner in these

aspects to favour his son’s firm are not prima facie spelt out in

the material before the Appointing Authority. While the

amended service Rules on which the learned Advocate General

relies upon show that if there is a private interest, the petitioner

was duty bound to disclose the same, still the fact remains that

the preliminary enquiry report states that the award of the

contract in which a member of the family is involved is a

misconduct. This is the only Rule relied upon in the

preliminary enquiry. Even otherwise the existence of a “private

interest” is a matter that is not borne out of the available

record. The role of the son at the earlier stages i.e., before

22.03.2019; his presence on 23 -3-2019 in a meeting

conducted by the MHA and its impact on the issue is still to be

investigated/determined. However, the available material as

on 08.02.2020 is not conclusive for forming an opinion of a

prima facie case particularly against the petitioner.

Both the learned counsel have drawn the attention of this

Court to the letter dated 22.03.2019, which is filed as a

material paper by the petitioner. This discloses the

role/presence of the son according to the respondents. This is

referred to in the preliminary report. This Court notices its

letter dated 22.03.2019 is after the cancellation of the tender

on 24.12.2018 by the Director General of Police. The link

34

between this meeting dated 27.02.2019 which was held in MHA

Delhi and the finalisation of the tender dated 05.10.2018 is not

visible prima facie. The cancellation of the tender dated

24.12.2018 is not in dispute. This is referred to in the

preliminary enquiry report. The letter dated 22.03.2019 given

by the Director of the Ministry of Home Affairs is also referred

to in the preliminary report dated 06.02.2020. The Appointing

Authority, in the opinion of this Court, should have examined

these two records in conjunction to come to a prima facie

conclusion about the role of the son. This was unfortunately

not done. The minutes dated 26.06.2018, which are

also referred to in the preliminary investigation report, were

also filed as a material paper. They show that a team of eight

(8) Police Officers and two representatives of the company

participated in the deliberations. Presentations were also

made. Some clarifications were also sought. Thereafter, the

committee recommended to the Inspector General of Police,

Intelligence and SIB to prepare revised tender conditions.

These aspects should have also been considered by the first

respondent-State in deciding the petitioner’s role.

Therefore, this Court is of the opinion that the Authority

before whom this preliminary enquiry report dated 06.02.2020

was placed did not consid er the material in its proper

perspective to come to a conclusion that the suspension is

justified.

The case law cited by the learned counsel on both sides

includes the case of Bimal Kumar Mohanty (1 supra), which

itself clearly said the nature of the evidence placed before the

35

Appointing Authority and the application of mind should be

considered while passing an order of suspension and also for

continuation of the suspension. In the opinion of this Court,

the Appointing Authority did not actually consider the material

in the proper perspective in order to come to a conclusion that

the petitioner can be kept under suspension. This also leads to

a conclusion about non-application of mind.

Learned Advocate General also relied upon letter dated

28.03.2019, which is filed by the petitioner to contend

vehemently that even after the cancellation of the tender, the

petitioner was still pursuing with the State and the Director

General of Police to award the tender to the firm in which his

son is interested. This letter dated 28.03.2019 is a material

paper that is filed by the petitioner. In this letter the last para

reads as follows:

“It is humbly submitted that the cancellation of the

Purchase Order may kindly be reviewed or at the least,

entire process may kindly be reinitiated immediately by

the Office of the Director General of Police, Andhra

Pradesh, to urgently procure the required items mentioned

in the cancelled Purchase Order, following procedures as

deemed fit.”

While this Court is of the opinion that this letter dated

28.03.2019 is not a part of the material that is considered in

the preliminary investigation and was not a letter that was

considered by the Authority in passing the impugned order,

still, in view of the fact that the learned Advocate General relied

upon this letter (which is pleaded in the counter filed as a

ground to show the petitioner’s interest), this Court answers

36

the submission by stating that a reading of the penultimate

paragraph shows that the petitioner want ed the State to

“procure the required items mentioned in the cancelled

purchase order following procedures as deemed fit”. It does

not lead to an irresistible conclusion at this stage that the

petitioner was still pursuing the old tender only. This issue is

however left open for the Disciplinary Authority to decide.

The learned Advocate General also relied upon the

amended Service Rules to contend that a person, who has a

“private interest” is duty bound to disclose the same. This

Court does not wish to enter further into this controversy of

conflict of interest since the State/Authority did not rely upon

this amended definition to place the petitioner under

suspension. Learned Advocate General also took great pains

to argue that malice is not established and that the allegations

of malice are often made easily without being proved. He also

pointed out on the basis of settled case law that in cases of

malice, the person/officer concerned should be added as eo

nominee party. Relying upon the cause title, the learned

Advocate General pointed out that none of the Officers were

added in-person nor is there the required standard of pleading

to prove malice. This Court agrees with the said submissions,

but this Court is of the opinion that on this ground the Writ

need not be dismissed. Apart from malice there are other

issues raised like the rule position, failure to consider the

material, failure to establish the petitioner’s role in reducing

the specifications etc.,. which merit consideration.

37

The Learned Advocate General also relied on two interim

reports which were proposed to be filed in a sealed cover. They

are referred to in the counter affidavit. This Court does not

wish to rely on the same for the conclusions. Since privilege is

not claimed and as they are not furnished to the other side,

relying on them is not called for more so in view of the fact that

subsequent events cannot be used to justify the suspension

order. The material available and the examination of the same,

in the opinion of this Court, is sufficient to arrive at the

conclusions.

Conclusions:

Rule 3 of the 1969 Rules , talks of suspension.

The factors, which are necessary for placing an Officer under

suspension are (a) the circumstances of the case, (b) the nature

of the charges, and (c) satisfaction, necessity and desirability.

This Court is reiterating that for an Officer to be placed

under suspension, by virtue of a plain language interpretation

of this case, the Authority should be satisfied basing upon the

circumstances of the case, the evidence collected till then and

the nature of the charges that the Officer should be placed

under suspension. Therefore, there should be some material

for the Appointing Authority to come to a conclusion about the

nature of the charges and the circumstances of the case. The

further satisfaction for keeping the Officer under suspension

and/or continuing him should also be based on some material.

While, at this stage, there is no necessity for clear or what

is called adequate proof, still in the opinion of this Court there

should be some material available. In fact , the Hon’ble

38

Supreme Court of India has said that there should be a strong

prima facie case against the delinquent. This, therefore, implies

that the satisfaction reached by the Authority for suspending

a delinquent or keeping him under suspension should be based

on some objective material and cannot purely be subjective.

The cases cited above including Bimal Kumar Mohanty and

Ashok Kumar Aggarwal (1 and 2 supra) lend support to this.

Even the Constitution Bench decision reported in

A.K.K.Nambiar’s case (14 supra) states that the order of

suspension should be (a) warranted by the Rule (b) and must

be an honest exercise of power. The Court can only come to a

conclusion about the honest exercise of power or of the

suspension being as per the Rule, when the material examined

by the Authority before suspending the Officer is seen by the

Court and not otherwise. As mentioned above, Rule 3 warrants

examination of the circumstances of the case, nature of

charges and/or the necessity or desirability of placing an

Officer under suspension. In the opinion of this Court, the

suspension order in this case does not meet the stipulation of

the Rule itself (Rule 4(3)(a) of the Conduct Rules 1969) nor does

it meet the tests that are prescribed/laid down by the Hon’ble

Supreme Court in the decided cases, particularly Bimal

Kumar Mohanty , Ashok Kumar Aggarwal and

A.K.K.Nambiar (1, 2 and 14 supra).

Hence, this Court is of the opinion that the Appointing

Authority-first respondent did not have adequate material by

the date of the order of suspension to come to a conclusion that

39

the petitioner himself was responsible for floating the tender,

for choosing the supplier, for making the changes in the tender

and/or that the son was instrumental in awarding the work or

that he played a big role in the changes. This Court is only

commenting about the material placed before the Appointing

Authority-first respondent for the suspension only for the

purpose of disposal of this Writ Petition. The Appointing

Authority did not also call for or examine records to record the

satisfaction of a prima facie case etc.,. The preliminary enquiry

report was the only document considered.

(b) This Court has already spelt out its conclusions with

regard to the findings of the Central Administrative Tribunal in

the order impugned. The justification for placing the Officer

under Suspension and/or continuing him in suspension are

not really discussed by the Tribunal.

The link however slender and/or tenuous between the

material and the conclusions should be established.

Otherwise, the dicta of the Hon’ble Supreme Court that the

Appointing Authority should find a strong prima facie case

would become meaningless. A strong prima facie case would

imply that there is some material available linking the

delinquent solely to the charges, particularly for the grounds

urged. The sole document available (dated 06.02.2020) before

the Appointing Authority, who passed the impugned order, did

not establish the same. The Central Administrative Tribunal,

in the opinion of this Court, did not consider the issue of prima

facie case as mandated in Ashok Kumar Aggarwal ’s case (2

supra). The Tribunal did not also consider the law as laid down

40

in Bimal Kumar Mohanty ’s case (1 supra) and look into the

nature of the evidence that is placed before the Appointing

Authority. The Tribunal also did not decide whether the

material was enough for an objective satisfaction, meaning an

application of mind by the Authority. These aspects should

have been considered by the Tribunal in the O.A. The same

were not done.

(c) The order of suspension is also not warranted by the

Rule, which as mentioned earlier talks of the circumstances of

the case, nature of the charges etc., and the satisfaction to be

reached. The conclusions of the first respondent-Appointing

Authority also are not based on adequate materials. Non-

application of mind is visible from the failure to consider the

materials in line with the settled law.

Therefore, this Court holds that the petitioner is entitled

to the prayers made.

The learned Advocate General raised an issue about the

prayers of a writ of Certiorari and a Mandamus being made

together. The case law cited by the learned counsel for the

petitioner in WA.No.3161 of 2019 of the Madras High Court

(M.Rajendran v. Govt of India), Ashok Kumar Aggarwal

(2 supra) and Surya Dev Rai (7 supra) are applicable to the

facts and circumstances of the case. The distinction between

the writ of Certiorari and the supervisory jurisdiction is also

slowly being obliterated. However, under Article 226 of the

Constitution of India, a person is entitled to seek a number of

reliefs. Article 226 of the Constitution of India itself uses the

words “for any other purpose” after describing the types of writs

41

for enforcement of fundamental rights, which clearly shows

that more than one writ can be prayed for.

A combination of prayers is also necessary in the present

situation. The facts and circumstances of this case would mean

that if the order in the O.A. is set aside, the petitioner would be

driven to a further round of litigation if Certiorari alone is

granted. Any order passed by this Court should not be an

empty formality. Courts exist to do justice between the parties

and not to drive the parties to multiple rounds of litigation. In

order to do complete justice between the parties, this Court is

of the opinion that in the facts and circumstances of the case,

after setting aside the order in the O.A., the petitioner should

not be driven to another round of litigation and therefore, an

order directing him to be reinstated in to service while

continuing with the enquiry is appropriate in the facts and

circumstances of the case.

However, it is made very clear that all the opinions that

are expressed in the order are for the purpose of disposal of the

writ petition only. The material before the Authority for passing

the order of suspension is essentially considered for reaching

the conclusions. This will not preclude or otherwise come in

the way of the respondents carrying out their own further

investigation as advised into the matter for the purpose of the

enquiry. This order will not come in the way of the Enquiry

Officer coming to his/her own independent conclusion in the

matter based on the material and the law, without being

influenced by this order or the opinions expressed.

42

A note of caution and a direction is also given to the

petitioner also not to in anyway interfere or hamper the process

of enquiry, investigation etc.,. He should maintain a very strict

distance from the investigation/enquiry and should not in any

way attempt to keep in touch with any of the witnesses

proposed to be introduced or come in the way of the

investigating/enquiry Officers. It is made clear that if there is

any infraction, the State is entitled to take appropriate action.

In view of the fact that the Service Rules provide for

timely completion of the enquiry, the respondents are directed

to strictly adhere to the time schedules fixed by the relevant

Rules and complete the enquiry in all respects in a time bound

manner.

This Court records its appreciation for the efforts

undertaken by the learned Senior Counsel Sri B.Adinarayana

Rao and the learned Advocate General Sri S. Sriram.

While allowing the Writ Petition, the following order is

passed: –

1. The order dated 17.03.2020 in OA.No.020/0149/2020 is

quashed.

2. The order dated 08.02.2020 in GO.Ms.No.18 GAD

issued by the first respondent keeping the petitioner under

suspension is held to be illegal, arbitrary and is set aside.

Consequently, the first respondent is directed to reinstate the

petitioner into service with all attendant/consequential

benefits, monetary and otherwise.

43

3. The respondents shall complete the enquiry against

the petitioner strictly as per the extant Rules in a time bound

manner.

There shall no order as to costs. As a sequel, the

miscellaneous applications, if any pending, shall stand closed.

__________________________

D.V.S.S.SOMAYAJULU, J

__________________________

LALITHA KANNEGANTI,J

Date:22.05.2020.

Note: LR Copy to be marked.

B/o

KLP