HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. BHAVANI PRASAD WRIT PETITION NOS. 4880, 4328 AND 4961 OF 2010 WRIT PETITION NO. 4880 OF 2010 Between: D. Shanakar S/o Late Kishaiah (Retired District Malaria Officer) ..... PETITIONER AND The A.P. Administrative Tribunal, represented by its Registrar, Hyderabad and three others .....RESPONDENTS WRIT PETITION NO. 4328 OF 2010 Between: D. Shanakar S/o Late Kishaiah (Retired District Malaria Officer) ..... PETITIONER AND The A.P. Administrative Tribunal, represented by its Registrar, Hyderabad and three others .....RESPONDENTS WRIT PETITION NO. 4961 OF 2010 Between: The Director of Animal Husbandry, Government of Andhra Pradesh, Hyderabad and two others ..... PETITIONERS AND D. Shankar, District Malaria Officer (Retired) and one another .....RESPONDENTS COMMON ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) As all Writ Petitions are interconnected they are being disposed of by this common order. Writ Petition No. 4880 of 2010 has been filed by the petitioner- applicant in the nature of Writ of Certiorari calling for the records relating to G.O.Ms.No. 169, dated 21.6.2004, G.O.Rt.No. 556 dated 25.5.2005, the order dated 23.3.2006 passed in appeal Memo No. 4530/VC(1)/2006- 1 and the order dated 15.10.2009 passed in O.A.No. 2379/2006 with VMA No. 1177/2006 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. Writ Petition No. 4328 of 2010 has been filed by the petitioner- applicant in the nature of Writ of Certiorari calling for the records relating to Orders passed in O.A.No. 154 of 2007 (Common order in O.A.No. 2379 of 2006) dated 15.10.2009 on the file of Andhra Pradesh Administrative Tribunal Hyderabad and quash the same as illegal. Writ Petition No. 4961 of 2010 has been filed by the Government, Health Medical and Family Welfare Department represented by its Principal Secretary, in the nature of writ of Certiorari calling for the records relating to orders passed in O.A.No. 2379 of 2006 along with O.A.No. 154 of 2007 dated 15.10.2009 on the file of A.P. Administrative Tribunal, Hyderabad and quash the same as illegal. The Tribunal by common order dated 15.10.2009 allowed all the O.As partly and disposed of the VMA and directed the respondents to pay the arrears to the applicant for the said period i.e., from 11.7.2001 up to 30.4.2002, by revising the pension, if necessary, and the said orders have to be passed as a consequence of the directions given, within a period of 8 weeks from the date of receipt of a copy of the order. Brief facts of the case are that the petitioner-applicant, who was initially appointed as Assistant Malaria Officer in 1968 through A.P. Public Service Commission, was promoted as Senior Entomologist in February, 1990 and retired from service on attaining the age of superannuation on 30.4.2002. It is stated that the applicant initially suspended on 11.9.1998 in view of certain allegations leveled against him and a Charge Memo was issued on 6.8.1999, wherein 11 charges were framed against him and after conducting the enquiry based on the Enquiry Officer’s Report, the application was dismissed from service, vide G.O.Ms.No. 258 dated 23.6.2001 and the same was challenged before the Tribunal in O.A.No. 4548 of 2001. The Tribunal set aside the dismissal order vide order dated 27.6.2002, the relevant portion reads as under: “In the facts and circumstances of the case, we are of considered opinion that the impugned G.O.Ms.No. 258, HM&FW dated 23.6.2001 issued by the 1st respondent, removing the applicant from service, is liable to be set aside and it is accordingly set aside. The matter is remitted back to the 1st respondent with a direction to re-examine the whole issue and if needed, to issue further show cause notice, indicating appropriate punishment and on receipt of the explanation of the applicant, appropriate orders with regard to imposition of punishment other than removal from service be issued. The above exercise shall be completed within a period of 2 months from the date of receipt of a copy of this order.” It is also stated that in view of the above orders, the applicant reinstated into service and by following the directions given, a show cause notice dated 24.2.2003 was issued and after considering the explanation submitted by the applicant the impugned orders have been passed by the respondents reducing the punishment of dismissal from service, in view of the observations made by the Tribunal, to that of 25% cut in pension permanently and treating the period of suspension as ‘on leave’ and further from the date of removal i.e., 11.7.2001 till the date of retirement i.e. 30.4.2002 as ‘on leave’ has also been issued. Being aggrieved by the same, Writ Petition Nos. 4880 of 2010 and 4328 of 2010 are filed by the petitioner-applicant and Writ Petition No. 4961 of 2010 is filed by the Government. The learned counsel appearing for the petitioner-applicant contended that when once the removal order is set aside, removal of the petitioner- applicant from 11.7.2001 till the date of retirement has to be treated as ‘on duty’ with all consequential benefits, but instead the Tribunal held that the punishment has been rightly treated as ‘not on duty’. He also contended that the order of the Tribunal suffers from various infirmities viz., punishment has been reduced to that of 25% cut in pension permanently as illegal and the petitioner has not given any opportunity to file his objections to the report of the enquiry officer. He further contended that petitioner-applicant filed O.A No. 154 of 2007 alleging the action of the respondent in not giving the communication value of pension of Rs. 3,99,970/- and other monetary benefits by including the amount deducted towards 25% cut in pension in view of imposition of punishment vide G.O.Rt No. 556 dated 22.5.2005 but the Tribunal has not discussed this aspect anywhere while disposing of the O.As. On the other hand, the learned Government Pleader for Services-I contended that when once the punishment imposed by the disciplinary authority is with regard to the proved mis-conduct and disciplinary authority has accepted the report of the enquiry officer, who imposed the punishment after taking into account the remand order passed by the Tribunal and exercised its discretion rightly pursuant to the directions issued by the Tribunal in O.A.No. 4548 of 2001 to that of 25% cut in pension permanently and treating the period of suspension as ‘on leave’ and further from the date of removal i.e. 11.7.2001 till the date of retirement i.e. 30.4.2002 as ‘on leave’ with regard to proved charges. He also contended that under the Fundamental Rules, Rule 54-A(2)(5) clearly postulates that it is for the disciplinary authority to recall the period of suspension and the authority rightly passed the order treating the period of suspension from 11.9.1998 to 10.10.1999 as ‘not on duty’ till the date of retirement i.e. on 30.4.2002. For ready reference Rule 54-A(2)(5) of A.P. Fundamental Rules reads as under: (2) (i) Where the dismissal, removal, or compulsory retirement of a Government servant is set aside by the court solely on the ground of non- compliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution, and where he is not exonerated on merits, the pay and allowances payable to the Government servant for the period of dismissal, removal or compulsory retirement or suspension prior to such dismissal, removal or compulsory retirement, as the case may be, shall be limited to the subsistence allowance entitled/already paid under FR 53 for the entire period during which the Government servant was not on duty. (ii) the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54. (5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.” Learned counsel further drawn our attention to Rule 54-B(4), of the A.P. Fundamental Rules, which reads as under: “(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duly for all purposes.” He also drawn our attention to rule 8(4) of CCA and Conduct Rules, which reads as under: “(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a court of law and the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders; provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.” In the present batch of cases on hand, the disciplinary authority has not decided to hold further enquiry against the petitioner-applicant therefore, this Rule, viz., Rule 8(4) of CCA & Conduct Rules is not applicable to the case of the applicant-petitioner herein. We have heard the learned counsel appearing for both sides and perused the material made available on record. We have given our earnest consideration to Rule 54-A(2)(5) of the A.P. Fundamental Rules and Rule 8 (4) of CCA & Conduct Rules. Though the disciplinary authority has passed separate order vide G.O.Rt No. 556 dated 25.2.2005, wherein a cut in pension to the extent of 25% has been imposed and the suspension period from 11.9.1998 to 10.10.1999 has been treated as ‘on leave’ and the period of removal from 11.7.2001 till his retirement i.e. up to 30.4.2002 as leave to which he is entitled to, but however, the Tribunal has taken note of the situation and directed as under: “In view of the submissions of the learned counsel for the applicant and the learned Government Pleader, it is clear that the impugned order of punishment vide G.O.Rt.No. 556 dated 22.5. 2005 has been issued by taking into consideration of the directions given in O.A.No. 4548 of 2001 dated 1.11.2004 into account and the punishment has been reduced to that of 25% cut in pension permanently and as the applicant retired from service by that date, the punishment orders have been issued by treating the period from the date of removal from 11.7.2001 till the date of retirement as ‘on leave’ in accordance with Fundamental Rules. As the punishment has been imposed finally the period of suspension can be treated as ‘not on duty’. Therefore, it has been rightly treated as ‘not on duty’, with respect to period of suspension from 11.9.1998 to 10.10.1999 till the date of retirement i.e. on 30.4.2002 as the said period cannot be treated as ‘on leave’. As the removal order has been set aside by this Tribunal the applicant should be treated as ‘on duty’ from 11.7.2001 from the date of removal till the date of his retirement on 30.4.2002 with all consequential benefits, pay and allowances and, accordingly, the respondents are directed to pay the arrears to the applicant for the said period i.e. from 11.7.2001 up to 30.4.2002, by revising the pension, if necessary, and the said orders have to be passed as a consequence of the directions given, within a period of eight weeks from the date of receipt of a copy of this order.” In view of the above, we see no reasons to interfere with the order passed by the Tribunal. But however, as contended by the learned counsel appearing for the petitioner that the Tribunal has not considered the aspect of computation of pension as he is legally entitled to claiming an amount of Rs. 3,89,970/- and the respondents have released an amount of Rs. 2,64,037/- without giving any reasons for deducting the said amount, we deem it appropriate to permit the petitioner in Writ Petition No. 4328 of 2010 to make a representation to the competent authority so as to consider his case and pass appropriate orders. On such representation being made by the petitioner, the competent authority shall consider the case of the petitioner for computation of pension and dispose of the representation within a period of four weeks from the date of receipt of a copy of this order. As directed by the Tribunal in O.A.No. 2379/06 datd 15.10.2009 the respondents are directed to pay arrears to the petitioner-applicant for the period i.e. from 11.7.2001 up to 30.4.2002, by revising the pension, if necessary. The Tribunal while allowing the O.As on 15.10.2009 granted 8 weeks time to complete the exercise and the same is now extended by two more months from the date of receipt of a copy of this order. Accordingly, all the Writ Petitions are dismissed. There shall be no order as to costs. _______________________ GHULAM MOHAMMED,J _______________________ G. BHAVANI PRASAD ,J DATE: 09.03.2010 KA LR Copy to be marked ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.