IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

WRIT PETITION Nos.16194 of 2021 and 10277 of 2022

WRIT PETITION No.16194 of 2021

Between:

1. The Union of India rep. by it’s the Secretary, Govt. of India,

Ministry of Finance, Department of Revenue, North Block, New

Delhi-110001.

2. The Chief Commissioner of Customs, Central GST

Visakhapatnam Zone, GST Bhawan, Port Area, Visakhapatnam-

530035.

3. The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Petitioners.

AND

Namarla Satyanarayana, S/o.late Venkata Rao, Superintendent

of Customs (Preventive),

(Under the Orders of Suspension & Currently Suspension

revoked)

O/o.The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Respondent.

WRIT PETITION No.10277 of 2022

Between:

1. The Union of India rep. by it’s the Secretary, Govt. of India,

Ministry of Finance, Department of Revenue, North Block, New

Delhi-110001.

2. The Chief Commissioner of Customs, Central GST

Visakhapatnam Zone, GST Bhawan, Port Area, Visakhapatnam-

530035.

3. The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Petitioners.

AND

2

Namarla Satyanarayana, S/o.late Venkata Rao, Superintendent

of Customs (Preventive),

(Under the Orders of Suspension & Currently Suspension

revoked)

O/o.The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Respondent.

DATE OF ORDER PRONOUNCED : 19.04.2022

SUBMITTED FOR APPROVAL :

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

______________________

JUSTICE A.V.SESHA SAI

________________________

JUSTICE RAVI CHEEMALAPATI

3

* THE HON'BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

+ WRIT PETITION Nos.16194 of 2021 and 10277 of 2022

% 19.04.2022

WRIT PETITION No.16194 of 2021

Between:

1. The Union of India rep. by it’s the Secretary, Govt. of India,

Ministry of Finance, Department of Revenue, North Block, New

Delhi-110001.

2. The Chief Commissioner of Customs, Central GST

Visakhapatnam Zone, GST Bhawan, Port Area, Visakhapatnam-

530035.

3. The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Petitioners.

AND

Namarla Satyanarayana, S/o.late Venkata Rao, Superintendent

of Customs (Preventive),

(Under the Orders of Suspension & Currently Suspension

revoked)

O/o.The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Respondent.

! Counsel for Petitioners : Sri Suresh Kumar Routhu.

^ Counsel for Respondent : Sri N.Vijay.

WRIT PETITION No.10277 of 2022

Between:

1. The Union of India rep. by it’s the Secretary, Govt. of India,

Ministry of Finance, Department of Revenue, North Block, New

Delhi-110001.

4

2. The Chief Commissioner of Customs, Central GST

Visakhapatnam Zone, GST Bhawan, Port Area, Visakhapatnam-

530035.

3. The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Petitioners.

AND

Namarla Satyanarayana, S/o.late Venkata Rao, Superintendent

of Customs (Preventive),

(Under the Orders of Suspension & Currently Suspension

revoked)

O/o.The Principal Commissioner of Customs, Custom House, Port

Area, Visakhapatnam-530035.

… Respondent.

! Counsel for Petitioners : Sri Suresh Kumar Routhu.

^ Counsel for Respondent : Sri N.Vijay.

< Gist:

> Head Note:

? Cases referred:

1) Civil Appeal Nos.2055-2056 of 2022, dated 23.03.2022

2) (1964) 5 SCR 64 : AIR 1964 SC 477

3) (1995) 1 S.C.R. 1104

4) (1958) S.C.R. 1240

5) A.I.R. 1960 S.C. 1168

This Court made the following:

5

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION Nos.16194 of 2021 and 10277 of 2022

COMMON ORDER :-

Having regard to the nature of controversies in these two

writ petitions, this Court deems it appropriate to dispose of these

two writ petitions by way of this common order. The respondents

in Original Application Nos.162 and 174 of 2021 on the file of the

Central Administrative Tribunal, Hyderabad Bench are the

petitioners in these writ petitions. In these cases challenge is to

the common order, dated 07.04.2021, passed by the Tribunal in

the aforementioned original applications.

2. Shorn of inappropriate details, the factual situation which

is relevant for the adjudication of these writ petitions is as

follows:-

On the basis of a complaint alleged to have been made by

the brothers of the respondent herein as to the schedule tribe

caste status of the respondent, the District Collector initiated

action under the Andhra Pradesh (Scheduled Castes, Scheduled

Tribes and Backward Classes) Regulations of issuance of

certificate Act, 1993, (hereinafter called, Act 6 of 1993) and

issued a show cause notice, dated 03.05.2018 and in response

thereto respondent herein submitted his explanation.

Thereafter, the District Collector vide order, dated 25.06.2018,

cancelled the schedule tribe caste certificate of the petitioner,

issued in the year 1980. Challenging the said order of

cancellation of the caste certificate, respondent herein filed a

6

statutory appeal under Section 7 of the Act and the State

Government, appellate authority on 12.07.2018 granted stay of

operation of the orders of the cancellation of caste certificate

passed by the District Collector on 25.06.2018 and the said

appeal is pending consideration before the State Government-

appellate authority.

3. On the basis of a complaint made by the niece of the

respondent on 06.03.2020, respondent was suspended from

service by the third petitioner by way of an order, dated

04.05.2020 and the same came to be extended on 30.07.2020.

Applicant/respondent filed Original Application No.506 of 2020

before the Tribunal, questioning the said orders of suspension.

The Tribunal allowed the said Original Application No.506 of 2020

by way of an order, dated 10.11.2020, setting aside the order of

suspension, dated 04.05.2020 and the extension order, dated

30.07.2020. The Tribunal also directed the respondents therein

to post the applicant/respondent herein in a non-sensitive post.

Questioning the said order, petitioners herein filed Writ Petition

No.5358 of 2021 before this Court and this Court by way of an

order, dated 05.03.2021 disposed of the said writ petition

without interfering with the order passed by the Tribunal in

Original Application No.506 of 2020. Thereafter, the review filed

by the petitioners herein also ended in dismissal on 22.10.2021.

It is also pertinent to note that on 11.03.2021 the department

reinstated the applicant/respondent into service. Vide order,

dated 24.12.2020, the Union of India promoted the respondent

as Assistant Commissioner of Endowments, which is a Group-A

7

post. Subsequently, the Principal Commissioner of

Endowments/third petitioner herein vide order, dated

25.01.2021 extended the period of suspension of the respondent

by 45 days. Assailing the validity of the said order, dated

25.01.2021, the respondent herein filed Original Application

No.162 of 2021. Third petitioner herein also issued a charge

memo, dated 04.02.2021, framing as many as seven charges

against the respondent herein. Assailing the said charge memo,

the respondent herein filed Original Application No.174 of 2021

before the Tribunal. The Tribunal by way of the impugned

common order disposed of the Original Application Nos.162 and

174 of 2021, setting aside the charge memo, dated 04.02.2021

and directed the petitioners herein to allow the applicant to join

as Assistant Commissioner of Endowments on a notional basis

from the date of revocation of the suspension by the authorities

with consequential benefits thereof excepting back wages while

fixing three months time for the compliance of the said order.

The Tribunal also left it open for the authorities to initiate

disciplinary proceedings against the applicant in terms of rules

and the law.

4. In the above background these two writ petitions came to

be instituted by the petitioners herein, questioning the common

order passed by the Tribunal in the above said Original

Applications.

8

5. Heard Sri Suresh Kumar Routhu, learned Senior Standing

Counsel for Customs and Central Excise and Sri N.Vijay, learned

counsel for the respondent/applicant.

6. Learned counsel for the petitioners contended that the

common order passed by the Tribunal is highly erroneous,

contrary to law and in elaboration it is contended by the learned

counsel that the finding of the Tribunal that the impugned action

in the original applications suffers from lack of jurisdiction is

neither sustainable nor tenable in the eye of law. It is further

argued by the learned counsel that having regard to the

language employed in the office order, dated 24.12.2020 of the

Union of India, the conclusions arrived at by the Tribunal in the

impugned order with regard to the jurisdiction of the third

petitioner herein cannot be sustained. It is further contended

that since the respondent is not permitted to assume the charge

of Assistant Commissioner of Endowments pursuant to the office

order, dated 24.12.2020, it cannot be construed that third

petitioner herein has lost jurisdiction to initiate the impugned

action. Learned counsel further submits that the

respondent/applicant did not raise any contention as regard the

jurisdiction in Original Application No.506 of 2020. According to

the learned counsel, the judgment referred in the impugned

order is not relevant to the facts and circumstances of the case.

In support of his submissions and contentions, learned counsel

for the petitioners places reliance on the judgment, dated

23.03.2022, of the Hon’ble Supreme Court in the case of

9

Premlatha @ Sunita vs. Naseeb Bee and others in Civil

Appeal Nos.2055-2056 of 2022.

7. Per contra, learned counsel for the respondent/applicant

submits that there is absolutely no error nor there exists any

infirmity in the order passed by the Tribunal and in the absence

of the same, the order passed by the Tribunal which is impugned

in the present writ petitions is not amenable for any judicial

review under Article 226 of the Constitution of India. It is

further submitted by the learned counsel that the finding of the

Tribunal with regard to the jurisdiction of third petitioner to

initiate the impugned action cannot be faulted in view of the

office order No.156/2020, dated 24.12.2020 passed by the

Government of India. It is further contended by the learned

counsel that by way of the office order, dated 24.12.2020 the

Union of India ordered promotion of the respondent herein along

with others as Assistant Commissioner of Customs and Central

Excise with immediate effect. According to the learned counsel

paragraph 6 of the office order, dated 24.12.2020, cannot be

pressed into service for denying the posting nor the same can be

a ground for interference by this Court with the order passed by

the Tribunal. It is also the submission of the learned counsel

that once the promotion order is issued, third petitioner herein

seized to have the power to initiate any action against the

respondent and the authority competent, to take action if any is

the Union of India.

10

8. In the above background, now the issues this Court is

called upon to answer in the present writ petition are:-

a) Whether the orders passed by the Tribunal, in

the facts and circumstances of the case, are

sustainable and tenable?

b) Whether the impugned orders warrant any

interference by this Court under Article 226 of the

Constitution of India?

9. The information available before this Court, in clear and

vivid terms, reveals that when the third petitioner herein

suspended the respondent vide order, dated 04.05.2020, and

extended the same by way of an order, dated 30.07.2020, the

respondent herein, by invoking provisions of Section 19 of the

Administrative Tribunal Act, 1985, filed Original Application

No.506 of 2020. The said orders of suspension and the

extension were set aside by the Tribunal vide order, dated

10.11.2020 in Original Application No.506 of 2020 and the

Tribunal also directed the authorities to post the applicant in a

non-sensitive post and left it open to initiate disciplinary action.

Questioning the validity of the said order, the Department

carried the matter to this Court by way of filing W.P.No.5358 of

2021. This Court disposed of the said writ petition by way of

order, dated 05.03.2021 and the fact remains that this Court

declined to interfere with the order passed by the Tribunal in

Original Application No.506 of 2020. In this context it would be

appropriate to refer to the operative portion of the said order,

which reads as follows:-

11

“With regard to subsequent events, we note

that the charge memo subsequently issued upon

the respondent employee is under challenge

before the Tribunal, hence we choose not to make

any observations on the merits of such challenge.

We, however, hold the decision of 4

th

petitioner to

extend suspension of the respondent on

21.01.2021 in spite of the order of the Tribunal

and after his promotion is non est in law. It shall,

however, be open to the appropriate authority to

take independent decision with regard to

suspension of the respondent, if necessary,

pending departmental enquiry in

accordance with law without being influenced by

theobservations made in this order.”

10. Despite the aforesaid finding recorded by this Court as to

the sustainability of the extension of suspension, dated

21.01.2021, third petitioner herein passed another order on

25.01.2021, once again extending the period of 45 days.

According to the learned counsel for the respondent, the said

action on the part of the third petitioner herein would amount

disobedience of the orders passed by this Court. The said order

of extension, dated 25.01.2021, was the subject matter of

Original Application No.162 of 2021.

11. When the third petitioner herein issued a charge memo,

dated 04.02.2021, framing as many as seven charges against

the respondent herein, the respondent herein filed Original

Application No.174 of 2021, assailing the said charge memo on

the ground of inherent lack of jurisdiction to the third petitioner

herein to issue such a charge memo. As mentioned supra,

12

according to Sri Suresh Kumar Routhu, learned Senior Standing

Counsel for the Customs and Central Excise, the finding recorded

by the Tribunal with regard to the jurisdiction of the third

petitioner herein is highly unsustainable and untenable in view of

the office order No.151 of 2020, dated 24.12.2020. Learned

counsel places heavy reliance on the paragraphs 6 and 7 of the

said office order, dated 24.12.2020, which read as follows:-

“6. The Principal Chief Commissioner/Principal

Director General, CBIC and all other supervisory

authority concerned shall ensure that if any of the

officers whose name has figured in Annexure-I, II

& III to this order is under suspension or facing

any chargesheet or prosecution, he/she should

not be allowed to assume charge of the post of

Assistant Commissioner and this fact should be

reported to the Board immediately. Further, if

any of the officers figuring in Annexure-I, II & III

is undergoing any penalty, he/she should be

allowed to assume the charge of the post of

Assistant Commissioner only after the expiry of

the currency of the penalty period. This fact may

also be reported to the Board. Furthermore, if

any of the officers figuring in the Annexure-I, II &

III has taken VRS or has resigned or has expired,

this order would not be applicable and the

supervisory authority concerned shall report the

facts relating thereto to the Board immediately.

7. The joining reports of the officers with

name, designation, date of birth, current zone,

mobile number and e-mail ID may be sent to the

Board, DGHRD (HRM-I) and DGHRD (HRM-II) by

7

th

January, 2021.”

13

12. Learned counsel for the applicant/respondent submits that

once promotion orders are passed by the Union of India, the

Principal Commissioner of Customs/third petitioner herein loses

his jurisdiction to initiate any sort of disciplinary proceedings

against the respondent herein and places reliance on paragraph

1 of the said office order No.156 of 2020, dated 24.12.2020,

which reads as follows:-

“The President is pleased to promote the

officers mentioned in Annexure-I, II and III to the

grade of Assistant Commissioner of Customs and

Central Excise in Pay Band 3 with Grade Pay of

Rs.5400/- (pre-revised) on purely ad-hoc basis

with immediate effect and until further orders,

against temporary posts in the grade of Assistant

Commissioner created as a result of cadre

restructuring of CBEC in the year 2013 for a

period of 5 years ending in December, 2018 and

further extended for a period of 3 years with the

approval of the competent authority.”

13. The contention of the learned counsel for the petitioner

with reference to paragraphs 6 and 7 of the office order No.156

of 2020, dated 24.12.2020, in the considered opinion of this

Court would not render any assistance to the case of the

petitioners herein in view of the above paragraph. The fact

remains that as on the date of issuance of office order No.156 of

2020, dated 24.12.2020, there was no suspension order nor

there was charge memo. Therefore, in the opinion of this Court,

the contention contra advanced by the learned counsel for the

petitioner would not stand for judicial scrutiny. It is significant to

14

note in this context that according to the Office Order No.156 of

2020, dated 24.12.2020, the order of promotion came into

existence with immediate effect. In fact, the Tribunal

categorically dealt with the sustainability of the charge memo,

dated 04.02.2021, at paragraph 7(iii) of the impugned order. It

is also very much clear that while disposing of the Original

Applications, the Tribunal also left it open for the authorities to

initiate disciplinary proceedings in accordance with law. Once

the orders of promotion are issued having regard to the factual

scenario of the present case, in the considered opinion of this

Court, the Principal Commissioner of Customs, the third

petitioner herein, loses his jurisdiction to initiate any action

against the respondent herein.

14. By the time Original Application No.506 of 2020 was filed

by the respondent/applicant before the Tribunal, the orders of

promotion, dated 24.12.2020, were admittedly not in existence,

as such the contentions advanced by the learned counsel for the

petitioners is completely bereft of any merit. In view of the

same, the judgment of the Hon’ble Supreme Court in the case of

Premlatha @ Sunita vs. Naseeb Bee and others in Civil

Appeal Nos.2055-2056 of 2022 would not render any

assistance to the petitioners herein.

15. At this juncture, it is appropriate to refer to the judgment

of the Hon’ble Apex Court in the case of Syed Yakoob vs.

K.S.Radhakrishnan and others

1

. In the said judgment, the

1

(1964) 5 SCR 64 : AIR 1964 SC 477

15

Hon’ble Apex Court, while dealing with the jurisdiction of the

Courts to issue a writ in the nature of writ of certiorari, at

paragraph No.7 held as follows:-

The question about the limits of the

jurisdiction of High Courts in issuing a writ of

certiorari under Article 226 has been

frequently considered by this Court and the

true legal position in that behalf is no longer in

doubt. A writ of certiorari can be issued for

correcting errors of jurisdiction committed by

inferior courts or tribunals; these are cases

where orders are passed by inferior courts or

tribunals without jurisdiction, or in excess of

it, or as a result of failure to exercise

jurisdictions. A writ can similarly be issued

where in exercise of jurisdiction conferred on

it, the Court or Tribunal acts illegally or

improperly, as for instance, it decides a

question without giving an opportunity to be

heard to the party affected by the order, or

where the procedure adopted in dealing with

the dispute is opposed to principles of natural

justice. There is, however, no doubt that the

jurisdiction to issue a writ of certiorari is a

supervisory jurisdiction and the Court

exercising it is not entitled to act as an

appellate Court. This limitation necessarily

means that findings of fact reached by the

inferior Court or Tribunal as a result of the

appreciation of evidence cannot be reopened

or questioned in writ proceedings. An error of

law which is apparent on the face of the

record can be corrected by a writ, but not an

error of tact, however grave it may appear to

be. In regard to a finding of fact recorded by

16

the Tribunal, a writ of certiorari can be issued

if it is shown that in recording the said finding,

the. Tribunal had. erroneously refused to

admit admissible and material evidence, or

had erroneously admitted inadmissible

evidence which has influenced the impugned

finding. Similarly, if a finding of fact is based

on no evidence, that would be regarded as an

error of law which can be corrected by a writ

of certiorari. In dealing with this category of

cases, however, we must always bear in mind

that a finding of fact recorded by the Tribunal

cannot be challenged in proceedings for a writ

of certiorari on the ground that the relevant

and material evidence adduced before the

Tribunal was' insufficient or inadequate to

sustain the impugned finding. The adequacy

or sufficiency of evidence led on a point and

the inference of fact to be drawn from the said

finding are within the exclusive jurisdiction of

the Tribunal, and the said points cannot be

agitated before a writ court. It is within these

limits that the jurisdiction conferred on the

High Courts under Article 226 to issue a writ

of certiorari can be legitimately exercised

(vide Hari Vishnu Kamath v. Syed Ahmed

Ishaque

2

, Nagendra Nath Bora v. The

Commissioner of Hills Division and Appeals,

Assam

3

, and Kaushalya Devi v. Bachittar

Singh

4

.

16. It is evident from the reading of the above paragraph of

the judgment of the Hon’ble Supreme Court that a writ in the

2

[1955] 1 S.C.R. 1104

3

[1958] S.C.R. 1240

4

A.I.R. 1960 S.C. 1168

17

nature of writ of certiorari cannot be issued unless the order

impugned suffers from jurisdictional error, patent perversity and

passed in violation of the principles of natural justice. In the

considered of this Court, the said contingencies are

conspicuously absent in the orders impugned in these writ

petitions and in view of the same, this Court is not inclined to

meddle with the well articulated orders passed by the Tribunal.

17. For the aforesaid reasons, the Writ Petitions are dismissed.

No order as to costs.

Miscellaneous Petitions pending, if any, in this Writ Petition

shall stand closed.

______________________

JUSTICE A.V.SESHA SAI

________________________

JUSTICE RAVI CHEEMALAPATI

Date: 19.04.2022

SPP

18

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

WRIT PETITION Nos.16194 of 2021 and 10277 of 2022

Date: 19.04.2022

SPP