Writ Petition No. 10548 of 2014. Case: R. Bhadragiri Rao Vs The Nalgonda District Co-operative Central Bank Ltd.. High Court of Andhra Pradesh (India)
| Case Number | Writ Petition No. 10548 of 2014 |
| Counsel | For Appellant: M. Venkat Ram Reddy, Adv. and For Respondents: Amarnath Goud Thodupunuri and G.P. |
| Judges | Dama Seshadri Naidu, J. |
| Issue | Andhra Pradesh Shops And Establishments Act, 1988 - Section 42; Constitution Of India - Articles 12, 14, 21, 226, 226(1A), 300A, 309, 310, 311, 32; General Clauses Act 1897 - Section 16(1) |
| Judgement Date | July 23, 2014 |
| Court | High Court of Andhra Pradesh (India) |
Order:
Dama Seshadri Naidu, J.
1. In this writ petition, the following issues are required to be determined:
(1) Whether the respondent District Cooperative Central Bank is a State or an instrumentality of State in terms of Article 12 of the Constitution of India? Or, in the alternative is it imperative that the respondent ought to be a State or an instrumentality thereof to be subjected to the judicial review under Art. 226 of Constitution of India?
(2) Whether the order of suspension dated 27.03.2014 is punitive in nature?
(3) Whether the order of suspension complies with the regulatory regime of the respondent Bank? And,
(4) Whether, in the absence of any specific provision in the service regulations to suspend an employee, the employer has any inherent power to be exercised in that regard?
2. The facts in brief are that the petitioner is a General Manager working in the 1st respondent Nalgonda District Co-operative Central Bank Limited (for brevity, 'Bank') in Nalgonda. While the petitioner was on medical leave between 21.10.2013 and 21.04.2014, the respondent Bank issued a notice to the petitioner on 25.01.2014 stating that a enquiry had been held, and that in the report dated 30.09.2013 submitted by the enquiry officer, certain allegations of irregularities had come to light against the petitioner. Accordingly, the petitioner was asked to submit his explanation, which he did on 19.03.2014. The Managing Committee of the respondent Bank is said to have met on 11.03.2014, even before the petitioner could submit his explanation, and tentatively decided to place the petitioner under suspension. In any event, on 27.03.2014 the respondent Bank issued proceedings in Rc. No. Estt/E3/F.282/2013-14 placing the petitioner under suspension. Assailing the order of suspension on various grounds, the petitioner approached this Court by filing the present writ petition.
3. Sri M. Venkat Ram Reddy, the learned counsel for the petitioner, prefaced his submissions by stating that the respondent Bank is an instrumentality of state, inasmuch as it is under the strict supervision of the State as well as the Reserve Bank of India, which in fact has licenced it to be a banking company, and that the Government of Andhra Pradesh has got deep and pervasive control over the respondent Bank.
4. Adverting to the merits of the matter, the learned counsel has stated that the issue of suspension was fait accompli, since the Managing Committee which met on 11.03.2014 took a decision to place the petitioner under suspension, though the very explanation was submitted by the petitioner on 19.03.2014 explaining why no disciplinary proceedings were to be initiated against the petitioner. Thus, the contention of the learned counsel for the petitioner is that the impugned order of suspension is a product of non-application of mind, affecting the substantive rights of the petitioner to continue in service.
5. Referring to 'Nalgonda District Cooperative Central Bank Limited Service Regulations of the Employees' ('the Regulations' for brevity), the learned counsel has drawn the attention of this Court to Regulations 60 to 65 with specific emphasis on Regulation 64, which speaks of suspension. The learned counsel has contended that though there is an elaborate procedure prescribed to be followed by the respondent Bank before placing a delinquent officer under suspension, it has not complied with any of those parameters but has, in a ritualistic manner, exercised the non-existing power of suspension. The learned counsel has also stated that since the impugned order does not speak of paying any subsistence allowance, which is sine qua non, it is punitive in nature.
6. Expatiating on his submissions as to the undesirability of placing the petitioner under suspension, the learned counsel has further submitted that after placing the petitioner under suspension, the respondent Bank has not followed up the issue with any further action, such as issuing a charge sheet to the petitioner spelling out the charges, etc. Accordingly, the learned counsel has urged this Court to set aside and quash the impugned order of suspension as ultra vires of the Chief Executive Officer of the respondent bank, i.e., the 3rd respondent, and issue further consequential directions in that regard.
7. In support of his submissions, the learned counsel for the petitioner has placed reliance on Union of India and others v. Rajpal Singh (2009) 1 SCC 216.
8. Sri V. Amarnadh Goud, the learned Standing Counsel for the respondent Bank, in tune with the averments made in the counter affidavit filed by the respondent Bank, has strenuously opposed the claims and contentions of the petitioner. As a matter of preliminary objection, the learned Standing Counsel has asserted that the respondent Bank is not a State, much less an instrumentality of State, in terms of Article 12 of the Constitution of India. He has further submitted that the service regulations, on which the learned counsel for the petitioner has placed a heavy reliance, do not have any statutory force or flavour, but at best are administrative instructions meant to regulate the internal procedure of the respondent Bank. The learned Standing Counsel has further seriously contested the claim of the petitioner that the suspension is punitive in nature. According to the learned Standing Counsel, mere absence of an observation that the petitioner is entitled to subsistence allowance does not render an interim measure of suspension punitive or penal.
9. Further adverting to the merits of the matter, the learned Standing Counsel has submitted that there is misappropriation and defalcation of funds, essentially public money, from the bank, and that the role of the petitioner has come out very clearly in the confessions made by the other employees who were arrested in Cr. No. 143 of 2013 of Chandampet Police Station. The said crime is said to have been registered on the very same allegation of misappropriation of funds in the Bank to a tune of about Rs. 4,00,000/-.
10. In support of his submissions, the learned Standing Counsel for the respondent Bank has placed reliance on A. Subbarami Reddy v. Prohibition and Excise Superintendent and Anr. 2007 (5) ALT 428, Tappers Cooperative Society, Maddur v. Superintendent of Excise, Mahaboobnagar 1986 (1) An.W.R. 387, and Balvantray Ratilal Patel v. The State of Maharashtra AIR 1968 SC 800.
11. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Bank, apart from perusing the record.
In re: Issue No. 1
12. Before appreciating this issue, it has to be borne in mind that the definition of State under Article 12 is only for the purpose of application of the provisions contained in Part-III, but it has nothing to do with the rest of the Articles, such as Arts. 300-A, 309, 310 and 311 of the Constitution of India. Hence, even though a body of persons may not constitute the State within the instant definition, a writ under Article 226 may lie against it on a non-constitutional ground or on the ground of contravention of some provisions of the Constitution outside Part-III, e.g., where such body has public duty to perform or its acts are supported by the State or public officials. (see: Durga Das Basu's Shorter Constitution of India, page 47, vol. I, 14th Edition).
13. In Chapter III of the Constitution, exclusively dealing with Fundamental Rights, the lexical provision is Art. 12, which is as follows:
"12. Definition.--In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
14. On the other hand, Part VI dealing with the federal provision 'States', contains Article 226, which is as follows:
"226. Power of High Courts to issue certain writs.--(1) Notwithstanding anything in Article 32, [* * *] every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without--
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next...
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