HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZUL PURKAR W.P.No. 18989 OF 2009 O R D E R: ( per Hon’ble Sri Justice Vilas V. Afzul Purkar) The State is questioning the order of the Andhra Pradesh Administrative Tribunal in O.A.No. 1139 of 2005, dated 29.04.2009. The respondent herein had approached the Andhra Pradesh Administrative Tribunal (for short, ‘the Tribunal’), aggrieved by the impugned proceedings, dated 08.07.1998 of the 3rd petitioner herein, whereunder, the respondent was held to be guilty of unauthorized absence from duty and consequently, the period of unauthorized absence from 05.06.1997 to 18.09.1997 was treated as leave without pay and he was removed from service with immediate effect. The case of the respondent before the Tribunal was that while he was working as a Police Constable in XI Battalion of APSP, Kadapa, he obtained medical leave from 06.04.1997 to 14.05.1997, as he was suffering from jaundice and he admitted to hospital and after treatment for a few days, he was advised to take bed rest initially for 20 days and thereafter, for 15 days. On account thereof, the respondent could not join duty and extended the medical leave. He asserted that he had obtained permission from the authorities and had extended his medical leave for the above period. The respondent, however, reported for duty on 11.08.1987, but he was allowed to join duty on 18.09.1997. However, in the meanwhile, the disciplinary proceedings took place and under the impugned order, he was ultimately removed from service. The respondent, therefore, submits that he was working till his date of removal and the effect of the impugned order is that while the respondent was undergoing treatment, he is being declared as deserter and continuously absent for 21 days from 14.05.1997 to 05.06.1997. The Tribunal considered the case of the respondent as well as that of the Departments i.e. petitioners herein. On examination of the record, the Tribunal came to the conclusion that while the respondent reported sick on 06.04.1997,he could not join duty on account of the ailment of jaundice. The respondent produced prescription and medical bills before the Enquiry officer, but the same were not accepted by the petitioners, on the ground that they are after thoughts and no witnesses were examined in support of the said bills. The charge memo was held proved and disciplinary proceedings, therefore, were passed as if the respondent remained absent unauthorizedly for 21 days and major penalty of removal from service was imposed. The Tribunal considered the various decisions of the Supreme Court reported in B.C. Chaturvedi v. Union of India[1] and Dev Singh v. Punjab Tourism Development Corporation[2] and was of the opinion that the punishment of removal was clearly disproportionate as the respondent is only aged 35 years and had put in three years of service. The Tribunal, therefore, set aside the punishment and remitted the matter to the 3rd petitioner herein for re- consideration about the imposition of lesser punishment. Questioning the above said order, the State is before us in this Writ Petition. Initially, we had admitted the Writ Petition and granted interim suspension on 10.09.2009. After the appearance by the respondent, we have heard both the learned counsel and perused the record. The learned Government Pleader for Services-I pointed out that against the order of removal, the respondent has moved the Tribunal only in 2005 and that the Tribunal ought not to have entertained the O.A. on the ground of delay. The leaned Government Pleader also contends that the evidence of treatment of the respondent by the private medical practitioner is rightly not accepted by the Enquiry Officer as no witnesses were examined in support thereof. He, therefore, submits that the Tribunal ought not to have interfered with the punishment, since it is a disciplinary course. Per contra, the learned counsel for the respondent contends that the respondent has admittedly worked for three years as a Constable and was working as such till his removal. He also submits that the reason for such serious punishment of removal is only 21 days absence and that too when the respondent was undergoing medical treatment. He, therefore, submits that a lenient view as taken by the Tribunal does not deserve any interference. Sofar as the question of delay is concerned, the learned counsel for the respondent submits that immediately after the impugned order is passed, the respondent made a representation on 28.07.1998 to the 2nd petitioner herein for considering his case for re- instatement but no action is taken so far in spite of reminders and ultimately, the respondent approached the Tribunal. We have considered the aforesaid rival contentions. We are also satisfied from the record of the case that the said 21 days absence for which the respondent had been removed from service under the impugned order of the 3rd respondent is shockingly disproportionate to the charge of the unauthorized absence for 21 days as found in the impugned order. We have also examined the records and found that during the said period, the respondent initially was under the authorized leave and later, as he was advised to take treatment, he had taken the said treatment at the private medical practitioner and in support thereof, he had submitted prescriptions and medical bills. Though the said documents were not accepted by the Enquiry Officer, we are of the view that when medical bills and prescriptions were produced by the respondent, prima facie, he has discharged his burden. The fact that the respondent was ill and had obtained leave on medical grounds initially, from the petitioners themselves, is not in dispute and it is only for the later period while he was taking further medical treatment, the charge of 21 days unauthorized absence is made. We are, therefore, of the view that the impugned order of the Tribunal setting aside the order of removal is clearly justified as shockingly disproportionate to the charge, even if accepted as established. Lastly, we are of the view that the interests of justice would be met by permitting the respondent to join duty without continuity of service for any other benefit, except counting as qualifying service for pension. We were conscious that from 1998 onwards, the respondent is not on duty and he has been removed for the period of about 10 to 12 years during which this litigation is pending. We wanted to know the status and position with regard to the respondent particularly if there is any adverse report against him. Accordingly, the learned Government Pleader has obtained instructions and produced a copy of the letter of the Deputy Inspector General of Police - III, APSP Bns., Kurnool enclosing thereto the copy of the radio message sent by the Superintendent of Police, Kurnool, which reads as under: “ Ref: Rc.No. 07/E/2010, dated 24.01.2010 of DIG-III, APSP Bns., Kurnool, regarding verification of antecedents of Sri P. Chand Basha, S/o P. Hussain Saheb, Ex.PC 373, 11th Bn, APSP, Bhakarapet, Kadapa, n/o Kunkanuru (V), Devanakonda (M) of Kurnool District who is removed from service in the year 1998 (.) Enquiries revealed that the above candidate is residing at Kunkanuru Village by doing cooli work and he has not come to adverse notice either criminally or politically or otherwise and there is nothing against him on record since 1998 to till date.” In view of the totality of the circumstances, therefore, we are of the view that the impugned order of the Tribunal to the extent of setting aside the order of removal passed by the 3rd petitioner herein against the respondent was rightly set aside by the Tribunal and it warrants no interference. However, to the extent of further direction of the Tribunal remitting the matter to the petitioners herein for passing fresh order with respect to punishment is concerned, we are of the view that the respondent deserves to be re-instated and continued in the post from which he was removed, but however, the period from the date of removal till his date of re-instatement shall be without back wages and shall not count for any other benefit to the respondent except to the extent of counting the said period for qualifying service. The respondent shall accordingly be reinstated within a period of four weeks from the date of receipt of a copy of this order. The Writ Petition is accordingly disposed of. No costs. ------------------------- (V. ESWARAIAH, J) ----------------------------------- (VILAS V. AFZUL PURKAR,J) 3rd February 2010 ksld [1] AIR 1996 SC 484 [2] 2003(6) Supreme 482