HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 1548 OF 2011 Between: The Government of Andhra Pradesh represented by its Principal Secretary, BC Welfare Department A.P. Secretariat, Hyderabad and two others. ………….Petitioners AND M. Fakher Ahamad S/o Madravali aged about 49 years and one another ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the orders dated 7.12.2010 passed in O.A.No. 6840 of 2010 and batch on the file of Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. First respondent herein is the applicant in O.A.No. 6840 of 2010. He filed the O.A under Section 19 of the Administrative Tribunal Act, 1985 seeking to quash the impugned proceedings dated 28.9.2010 issued by the District Collector, Prakasham District- third respondent herein. That O.A was allowed with the following observation. “7. As far as the variation in the attendance in he hostels is concerned that is only in respect of the applicant in O.A.No. 6789/2010. For others there is no material. The variation can be explained by the applicant in O.A.No. 6789/2010, if opportunity is given. Added to that as far as the applicants in O.A.Nos. 6789, 6840 and 6842 of 2010, the allotted rice is not at all received. So, there is no strong material against them. Only when there is strong prima facie case, the action under Rule 8 of APCS (CC&A) Rules i.e. suspension can be resorted. Every misconduct need not be followed by suspension. It should be a grave misconduct and material must be very strong. But they are absent in this case. Added to that the incident was in the year 2008 and the action is initiated in the year 2010 i.e., nearly after two years and such an action is not just. 8. In the light of the above said circumstances, it can be concluded that there is no application of mind on the part of the respondents. So, there is no justification in keeping the applicants under suspension. Added to that, it appears that by the time of filing of the counter, no Charge Memo was issued and the applicants have been under suspension since two or three months. So it is not just to keep the applicants under suspension. 9. Therefore, all the O.As are allowed. The impugned orders are set aside. The respondents shall reinstate the applicants into duty within three days from the date of receipt of this order.” Brief facts of the case are that the first respondent-applicant was appointed as Hostel Welfare Officer of Government S.W Boys Hostel, V.R. Palli, Prakasham District. While so, he was kept under suspension by the third respondent-District Collector, Ongole, Prakasam District vide proceedings dated 28.9.2010 as per the report of the Vigilance and Enforcement Department, dated 29.12.2008 on the ground of misconduct. Aggrieved by the same, the applicant filed O.A and the same was allowed. Aggrieved by the same, the Government preferred the present Writ Petition. The learned Government Pleader for Services-II submits that the Tribunal has mechanically allowed the O.A solely on the ground that there is no documentary evidence to show that the first respondent-applicant was committed misconduct. He also submits that the Tribunal has not taken into consideration the report of the Vigilance and Enforcement which shows that the 1st respondent has been allotted 5 quintals of rice as per truck and chit No. 21739 dated 23.8.2008 which was diverted to black market but the first respondent herein made entries in the stock and issue Register on 25.8.2008 wherein the truck chit number and date was not mentioned in which the rice has received to the hostel. On the other hand, the learned counsel appearing for the first respondent submits that the Tribunal has passed a well-reasoned order and there are no grounds to interfere with the order. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, the first respondent- applicant is a Hostel Welfare Officer of Government S.W Boys Hostel, V.R. Palli, Prakasham District and on the report dated 29.12.2008 of the Vigilance and Enforcement Department, he was kept under suspension by the third respondent-District Collector, Prakasam District. Rule 8 of CCA & conduct Rules describes the suspension with retrospective effect, which reads as under: “8. Suspension with retrospective effect:- A member of the service cannot be suspended with retrospective effect. If a person is actually in service for a period or is entitled to be in service during the period, it would be a contradiction in terms to suspend him. He could not for the same period, be in service and not be in service at the same time, or be entitled to serve as well as not entitled to serve simultaneously. Therefore, even in cases where an order of suspension is set aside by the Court, it means that for the relevant period the Court has decided that the employee is entitled to serve. By a later order it is no longer open to suspend him for the very same period during which the Court had declared that he was entitled to serve. Therefore, when an order of suspension is made retrospectively, the retrospective part cannot be given effect to. It is not that the Court dealing with such a matter must necessarily pass a new order. It is open to it to declare that the order made has an infirmity with regard to the retrospective part but that the prospective part is perfectly valid and should operate upon its own strength. Sackarni vs. Commissioner of Police, AIR 1965, Cal 13.” The learned Government Pleader for Services-II submits that in this particular case, a charge memo was issued against the first respondent and an enquiry officer is also appointed and the enquiry is in progress. Be that as it may, the Tribunal has committed a serious error in exceeding its limit directing that the applicant in OA shall be reinstated into service within three days from the date of receipt of a copy of the order. It is the domain of the authority whether to place the employee under suspension or not having regard to the gravity of the charge. Accordingly, the Writ Petition is allowed and the order passed by the Tribunal is set aside. Petitioners herein are directed to complete and conclude the enquiry within a period of three months from the date of receipt of a copy of this order and pass appropriate orders in accordance with law after affording an opportunity to the first respondent. Failing which, the first respondent-applicant should be reinstated into service by recalling the suspension order. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J ____________________ K. G.SHANKAR , J DATE: 31.1.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.