HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 1538 OF 2011 Between: The Government of Andhra Pradesh represented by its Principal Secretary, Social Welfare Department A.P. Secretariat, Hyderabad and three others. ………….Petitioners AND D. Laxminarayana S/o Venkata Subbaiah aged 49 years working as Secretary Grade Teacher 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 31.12.2010 passed in O.A.No. 9203 of 2010 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. 9203 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. “11. In the present case, till today, no charge memo is issued to the applicant. In these circumstances, following the orders passed in O.A.No. 6789 of 2010 and batch, dated 7.12.2010, this O.A is also allowed, setting aside the impugned proceedings in Rc.No. A1/357/2009, dated 28.9.2010 of the 1st respondent and the consequential proceedings in Rc.No. 5690/A4/2010, dated 26.10.2010 of the 2nd respondent. The respondents are directed to reinstate the applicant into duty within three days from the date of receipt of this order. However, this order does not preclude the respondents from proceeding with the disciplinary proceedings against the applicant.” Brief facts of the case are that the first respondent-applicant is working as Secondary Grade Teacher, MP elementary School, Srinagar Colony, Kandukur Town, Prakasam 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 and it without any application of mind held that there is no specific allegation in the vigilance report and no charge memo was issued. 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 Secondary Grade Teacher, Elementary School, Srinagar Colony, Kandukur Town, Prakasam 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 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.