IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 26219 of 2006 Between: 1 The Government of Andhra Pradesh rep byits Secretary Irrigation & CAD (CAD Ser.II) Department a.P. secretariat, Hyderabad. 2 The Engineer-in-Chief (Admn), Irrigation & CAD Departemtn, Erramanzil. Hyderabad. ..... PETITIONER(S) AND P. Sadananda Murthy H. No. 27-9-6, 2nd Lane, Kannavarithota, Guntur. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ, order, or direction more particularly one inthe natrue of a Writof Certiorari calling forthe records relting to and connected with theorder dt 27-3-2006 ofthe Hon'ble Andhra Pradesh Administrative Tribunal, Hyderabad in O.A. No. 6761/2003 to declare it as unjust arbitrary, illegal and contrary to law and set a side the same and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper inthe circumstances of the case. Counsel for the Petitioner:THE ADVOCATE GENERAL Counsel for the Respondent No.: MR.M.RATNA REDDY The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE C.V.RAMULU Writ Petition No.26219 of 2006 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is ﬁled seeking to quash the decision rendered by Andhra Pradesh Administrative Tribunal in O.A.No.6761 of 2003 dated 27-3-2006 by which the oﬃcial respondents were directed to release all pensionary benefits. 2. The details relevant and necessary for deciding the writ petition may be stated thus: The respondent herein ﬁled the above O.A. challenging G.O.Rt.No.697, Irrigation and CAD (CAD Services.II-2) Department dated 16-06-2003 and G.O.Rt.No.966, Irrigation and CAD (CAD Services-II-2) Department dated 07-08-2003 issued by the Government of Andhra Pradesh, and further seeking direction to the petitioners to regularise his services from 30-08-1992 to 31- 07-2001 and pay salary in the revised scales and also arrears of pay with all consequential beneﬁts and accordingly ﬁx the pension. 3. The misconduct alleged against the respondent is that he had committed certain irregularities in the execution of works pertaining to Sekirail Katwa Canal. The Chief Technical Examiner submitted his report on 19-12- 1981, and thereafter an Enquiry Oﬃcer was appointed to conduct disciplinary enquiry against the respondent. The Enquiry Oﬃcer framed as many as ten charges and after regular departmental enquiry, held the charges as proved and recommended reversion of the respondent. The Government examined the Enquiry report and issued a show cause notice on 18-12-1985 proposing to impose the punishment of dismissal from service. The respondent approached the Tribunal challenging the punishment and ultimately the Government issued G.O.Ms.No.390 dated 19- 11-1987 removing the respondent. The respondent ﬁled O.A.No.5118 of 1992 challenging the order of removal, which was set aside and OA was allowed on 23-11-1998, with liberty to the petitioners to refer the matter to the Tribunal for Disciplinary Proceedings (TDP) to record a ﬁnding as per the provisions of A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960. Questioning the same, the Government preferred W.P.No.4889 of 1999, which was dismissed by this Court. The matter was carried to the Apex Court vide SLP No.14114 of 2001, which was also dismissed. 4. The respondent made a representation to the Government seeking reinstatement into service with eﬀect from 30-8-1992 with all consequential beneﬁts. But, the Government had issued G.O.Rt.No.1167 dated 04-7-2002 appointing an Enquiry Oﬃcer to conduct an enquiry against the respondent, under Rule 9 of A.P. Revised Pension Rules and also issued G.O.Rt.No.697 dated 16-6-2003 stating that the respondent is deemed to be placed under suspension from the date of removal from service and treating the period between the date of removal and date of retirement as deemed suspension and the applicant is entitled to subsistence allowance. The Government ultimately issued G.O.Rt.No.966 dated 07-8-2003 seeking to initiate departmental proceedings under Rule 20 of A.P. Civil Services (CC & A) Rules, 1991. The Tribunal, after tracing the entire chronology of events and upon considering the submissions on either side, held that the respondent is entitled to all the pensionary benefits. Hence, this writ petition is ﬁled by official respondents in O.A. 5. Heard learned Special Government Pleader appearing for petitioners and learned counsel for the respondent – applicant. 6. Learned Special Government Pleader contended that though the O.A.No.5118 of 1992 was allowed and removal order was set aside, liberty was given to the Government to refer the matter to the TDP and that the respondent retired from service by the time SLP was dismissed by the Apex Court, therefore the departmental proceedings are initiated under Rule 9(2)(a) of A.P. Revised Pension Rules. He further submitted that the TDP has no jurisdiction to proceed against a retired employee and as such, the authorities have initiated departmental proceedings against such employee. 7. Learned counsel for the respondent contended that when the order of removal was set aside, the respondent was not reinstated into service and not paid salary, and as such, the Tribunal rightly directed to release the pensionary benefits. 8. Having heard counsel appearing on either side and in the facts and circumstances, the point that arises for consideration is whether the respondent is entitled to pensionary beneﬁts and also arrears of salary as claimed in O.A. as he was out of employment? 9. Admittedly, the respondent was subjected to departmental enquiry and the Enquiry Oﬃcer recommended the punishment of reversion, whereas the Government proposed the punishment of ‘dismissal from service’. However, the Government passed the order of removal, which was challenged in O.A.No.5118 of 1992. The said O.A. was allowed setting aside the removal order and at the same time, Government was given liberty to refer the matter to the TDP. It is to be noticed here that the Government has not referred the matter to the TDP for the reasons best known to it. Against the order in O.A.No.5118 of 1992 setting aside the removal order, the Government preferred W.P.No.4889 of 1999, which was dismissed, so also the SLP by the Apex Court. It is pertinent to observe that the respondent had retired from service on attaining superannuation on 31-7-2001, whereas the SLP was dismissed on 31-08-2001 and the Government had been unsuccessful throughout. Thus, the order of the Tribunal had attained ﬁnality, in which case the respondent is entitled to reinstatement into service. But, the Government now seeks to initiate departmental proceedings on the ground that the delinquent oﬃcer had retired from service and TDP has no jurisdiction. Having been unsuccessful all through, it is not open to the Government to initiate departmental proceedings after such a long time and if the same were to be allowed, it would cause prejudice to the respondent. 10. It is not in dispute that the respondent was not reinstated into service when the Tribunal set aside the removal order and the Government had carried the matter to the Supreme Court and that he was out of service from 30-8-1992 till the date of his retirement on 31-7-2001. It is also not in dispute that the respondent has not discharged the duties during the said period and we are of the considered opinion that he is not entitled to any arrears of salary for such period on the principle ‘no work, no pay’. However, we direct the authorities to treat the period between 30-8-1992 and 31-7-2001 as ‘on duty’ and ﬁx the pay notionally by taking into account annual increments and calculate the pensionary beneﬁts, which was agreed and accepted by learned counsel for the respondent. Thus, the respondent is entitled to notional ﬁxation of pay during the period he was out of employment for the purpose of computation of pension. Learned counsel for the respondent submitted that the subsistence allowance paid may not be recovered. Having regard to the circumstances under which the respondent was suspended from service, we deem it just and proper to direct the authorities that the amount paid towards subsistence allowance during the period of suspension, shall not be recovered while settling the retiral and pensionary beneﬁts. The petitioners shall pay the pensionary and all other retiral beneﬁts to the respondent. This exercise shall be completed within a period of two months from the date of receipt of this order. 11. Accordingly, the writ petition is disposed of. No order as to costs. ___________________________ GHULAM MOHAMMED, J. ___________________ C.V.RAMULU, J. 19-08-2008 bsc