IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 12034 of 2005 Between: The Commissioner, Municipal Council, (Presently Municipal Corporation) Niamabad, Nizamabad Dist. ..... PETITIONER AND 1 Smt.Shoba Devi, Jr.Assistant, Municipal Council, Nizamabad, Nizamabad Dist. 2 The Commissioner & Director of Municipal, Administration, Andhra Pradesh, Hyderabad. 3 The Regional Director & Appellate Commissiner, Municipal Administration, Hyderabad. .....RESPONDENT(S) 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 to issue a writ, order or direction particularly one in the nature of writ of Mandamus declaring the order passed in OA.NO.4859/2000, dt.23-2-2005 on the file of HOn'ble A.P.Administrative Tribunal, Hyderabad, as illegal, arbitrary and consequently set aside the same and pass such other order or orders as this HOn'ble court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.J.KANAKAIAH Counsel for the Respondent No.: MR.S.GOPAL RAO The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed challenging the order passed by the Tribunal in O.A.No. 4859 of 2000 dated 23.2.2005 on the file of the A.P. Administrative Tribunal, Hyderabad as illegal and arbitrary. O.A.No. 4859 of 2000 was filed by Smt. Shoba Devi –I respondent herein under Section 19 of the Administrative Tribunals Act, 1985 praying the Tribunal to declare the action of the respondents in not issuing the posting orders to her as illegal, arbitrary and further direct the respondents to treat the period from 6.9.1995 to the date of issuing posting orders to the applicant, as ‘on duty’ as per the provisions of Fundamental Rules and give all the benefits including fixation of pay scales of the applicant as per revised pay scales, as revised from time to time. Brief facts of the case are that applicant in O.A is working as a Junior Assistant in the Office of the Nizamabad Municipality. She applied for leave with effect from 4.11.1994 and kept extending the leave, from time to time, without proper sanction. She reported back to duty on 6.9.1995 but she was not admitted to duty. Aggrieved by the action of the respondents in not permitting her to join duty, she filed the said O.A. According to the applicant, subsequent to the filing of the O.A., respondents issued proceedings dated 18.9.2000 permitting her to join duty and she joined duty on 19.9.2000. The O.A has been filed questioning the refusal of the respondents to admit her to duty on the ground that she absented herself unauthorizedly prior to 6.9.1995. In the counter filed by the respondents, it has been emphasized that since the applicant was absenting herself from duty, frequently and dis-obeying the instructions of the authorities, action is being taken against her. It is further stated in the counter affidavit that the applicant absconded from her legitimate duties from 2.6.1994 to 17.10.1994 and 24.10.1994 to 3.11.1994 and from 6.11.1994 and that the unauthorized absence of the applicant cause much inconvenience and difficulty to the administrative machinery in the office of Nizamabad Municipality which prevented the respondent-Municipality to recommend for transfer of the applicant. When the applicant was reported to the office on 6.9.1995, she was sought for clarification for her indiscipline, unauthorized absence and non production of medical certificate for the period 1.5.1995 to 31.5.1995. In the additional counter affidavit, it has been stated that on 12.5.2000, a notice was issued to the applicant to report for duty and that she did not do so and reported only on 18.9.2000 after filing the O.A. The Tribunal perused the file bearing No. A3/3957/94 of the office of the Nizamabad Municipality and made the following observations: “However, after all is said and done, the fact remains that the applicant reported for duty on 6.9.1995, by submitting a joining report. The endorsement on the file, made by the Municipal Commissioner, shows that the joining report was directed to be sent to the Regional Director, Municipal Administration, since the applicant was surrendered to the said authority. However, a perusal of the file, more particularly the letter dated 7.12.1994, from the Municipal Commissioner to the Regional Director, shows that while informing the unauthorized absence of the applicant, a request has been made to transfer her from the present station and to post a suitable person in her place. However, the file also discloses that the Regional Director, by a letter dated 29.6.1995 asked the Municipal Commissioner to take suitable disciplinary action against the applicant for frequent absence and indiscipline etc. Obviously, the request made by the Municipal Commissioner, with regard to the transfer of the applicant was not accepted by the Regional Director. In spite of that, the endorsement of the Municipal Commissioner dated 6.9.1995, on the joining report, submitted by the applicant as well as a note put up by the Office to the Municipal Commissioner on 15.2.1997 under reference No. 36607/K1, go to show that, though the applicant joined duty on 6.9.1995, by enclosing a Medical Certificate, the then Commissioner did not permit her for joining duty against which the applicant was stated to have filed an Appeal Petition against the Commissioner for not admitting her to duty. Even subsequent to 5.12.1997, no further action was taken with regard to admitting the applicant to duty until 12.5.2000, when a so call re-call notice was issued to the applicant, directing her to join duty within 15 days. The said re-call notice was sent to the applicant under Certificate of posting. The date stamp of the Post Office indicates that this notice was posted on 12.5.2000. Subsequently, the circumstances, under which the applicant did not report for duty immediately there after are not clear. However, ultimately the applicant was issued with an order dated 18.9.2000, based on a joining report submitted by her dated 18.9.2000, permitting her to join duty and allotting her the work. Accordingly, she joined duty on 19.9.2000. In the meanwhile, the respondents have also initiated steps for taking disciplinary action against the applicant for her unauthorized absence. The applicant has since been retired from service. In the factual matrix of the case narrated above, it appears clear that the respondent had failed in not admitting the applicant for duty on 6.9.1995. They did not even take any action till 12.5.2000 for admitting her to duty. On 12.5.2000, they issued a notice to her, directing her to report for duty, within 15 days. In the circumstances, it is obvious that it is not the fault of the applicant that she was not on actual duty between 6.9.1995 and 12.5.2000. Adding the time of 15 days, permitted by the respondents to the applicant, it would be just and reasonable in the facts and circumstances of the case, to direct the respondents to treat the period between 6.9.1995 and 27.5.2000 as duty. The period between 28.5.2000 and 18.9.2000 shall be treated as leave to which the applicant is eligible. In case, there is no leave to her credit, the said period may be treated as Leave Not Due. The respondents are however, directed to proceed with the disciplinary action proposed against the applicant, if a charge Memo, has already been issued before her retirement i.e., before her actual date of superannuation. The O.A. is accordingly allowed in terms of the above directions. No order as to costs”. Heard learned counsel appearing for the parties. The learned Standing counsel appearing for the petitioner contended that the applicant applied for leave with effect from 4.11.1994 and kept extending the leave from time to time without proper sanction, disobeying the instructions of the authorities. Therefore, notice dated 12.5.2000 was issued to the applicant to report for duty immediately. But she did not do so and reported duty only on 18.9.2000 after filing the O.A. He further contended that the Tribunal without taking into consideration the entire material placed before the Tribunal allowed the O.A giving a finding to the effect that the applicant was not at fault as she was not on actual duty between 6.9.1995 and 12.5.2000 directing the petitioner herein to treat the period between 6.9.1995 and 27.5.2000 as duty. He further contended that the Tribunal without taking into consideration the facts came to the conclusion that the applicant was not at fault in not joining duty and therefore, prays this court to set aside the order of the Tribunal. We have perused the material made available on record. The Tribunal considered the entire aspect and came to the conclusion that the authority has committed an error in not allowing the applicant to join duty on 6.9.1995 and the authorities did not even take any action till 12.5.2000 on which date they issued a notice directing the applicant to report for duty within 15 days. Therefore, the Tribunal rightly held that it is not the fault of the applicant for not being on actual duty between 6.9.1995 and 12.5.2000 and therefore, directed the respondents to treat the period between 6.9.1995 and 27.5.2000 as on duty and the period between 28.5.2000 and 18.9.2000 shall be treated as leave to which the applicant is eligible and in case there is no leave to her credit, the said period may be treated as ‘Leave Not Due’. Therefore, there are absolutely no grounds to interfere with the order passed by the Tribunal and the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED ,J ______________________________ B. SESHASAYANA REDDY, J Dt. 17.11.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2CD copies