THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Petition No.22259 of 2009 ORDER: (per the Hon'ble Sri Justice V.Eswaraiah) The Government questions the order of the Andhra Pradesh Administrative Tribunal, Hyderabad, dated 07.04.2009 made in O.A.No.8006 of 2007, wherein the order of the 3rd petitioner herein viz., the Additional Director General of Police (Training), Hyderabad, dated 10.12.2007 made in Rc.No.42/Trg.3/2004 was set aside and the petitioners herein were directed to appoint the respondent herein as police constable (civil) with effect from the date of appointment of his contemporaries, who were appointed as police constables (civil), with all consequential benefits. The respondent worked as a Home Guard and applied for the post of Constable in December 2003. He has passed the written test and was sent for training on 10.05.2003 for a period of nine months. He completed the training except performing the running test of 5 kms. It is the case of the respondent that on 06.01.2004, 5 kms. running test was conducted and that on 07.01.2004 itself, he submitted an explanation stating that he could not complete the same on account of the hair-line fracture suffered by him in his left leg and, therefore, to reach the destination, he took the help of a cyclist who was going on the way and at that juncture, the authorities found that he made use of the bicycle of a stranger to pass the 5 kms. running test and thereby discharged him from the training. It is the further case of the respondent that he never made use of the cycle for the purpose of passing the 5 kms. running test, but he wanted to reach the finishing point only with a view to request the officials to provide him another opportunity to participate in the 5 kms. running test. Learned Government Pleader appearing for the petitioners submits that as the respondent was not successful in the 5 kms running test, the question of appointing and paying him the arrears of salary and other service benefits does not arise. It is further submitted that however as the enquiry was conducted behind the back of respondent, he is entitled for appointment, only if he succeeds in the 5 kms. running test. Learned counsel appearing for the respondent on getting instructions submits that the respondent is willing to undergo fresh running test and as he was not appointed, he will not claim the arrears of salary or seniority or other service benefits, except the relief that in case he successfully completes the 5 kms. running test, he may be appointed as a constable as last candidate of his batch and his seniority may be counted only for the purpose of future benefits without any claim of arrears of salary and other service benefits. We are not inclined to express any opinion with regard to the explanation said to have been submitted by the respondent at the inception but the fact remains that even as per the enquiry report, he was found going as a pillion rider on the cycle of a stranger and that he immediately gave an explanation on 07.01.2004 itself admitting that he came on a cycle of an unknown person to the finishing point. It is also stated that he never admitted that he made use of the cycle with a view to reach the finishing point but only he wanted to reach the finishing point with a view to make a request to provide him another opportunity, as he was not able to run because of the hair-leg fracture. So far as the enquiry report is concerned, it is not in dispute that the enquiry is made behind the back of the respondent and therefore, the Tribunal recorded a finding that the enquiry officer examined the witnesses by going to various offices, but without issuing any notice to the respondent about the date and place of enquiry and about the examination of witnesses. Thus it is clear that the enquiry report was in violation of the principles of natural justice, as no opportunity was given to the respondent to cross-examine the witnesses and to defend his case. As the officials have violated the principles of natural justice even in the earlier round of litigation, the Tribunal thought it fit that there cannot be any justification in remanding the matter with a direction to conduct the enquiry once again and accordingly set aside the said enquiry report and the consequential discharge order. The said findings recorded by the Tribunal are not at all questioned in the writ petition. As no notice was issued to the respondent during the course of enquiry while examining the witnesses and recording their statements, he was not aware of the relevant dates on which the witnesses were examined. Under these circumstances, we are of the opinion that the Tribunal had rightly set aside the impugned proceedings, discharging the respondent based on the enquiry report and directed the petitioners to appoint the respondent as police constable (civil) with effect from the date of appointment of his contemporaries who were appointed as police constables (civil). However, we are not inclined to accept the order of the Tribunal in directing the petitioners to pay all the consequential benefits including the arrears of salary, seniority and other service benefits, as admittedly the respondent did not successfully participate in the 5 kms. running test. In view of the submission made by the learned counsel for the respondent, we modify the order of the Tribunal directing the petitioners herein to conduct the 5 kms. running test afresh to the respondent within a period of four (4) weeks from the date of receipt of this order and if he succeeds in the said running test, he may be appointed as a police constable (civil) as last candidate in his batch, without any arrears of salary and other service benefits. The writ petition is accordingly disposed of. There shall be no order as to costs. _________________ (V.ESWARAIAH, J) __________________ (G.CHANDRAIAH, J) Date:19.10.2009 Note: Issue C.C. in three days. (B/o) JSU THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Petition No.22259 of 2009 (per the Hon'ble Sri Justice V.Eswaraiah) Date: 19.10.2009 JSU