IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE ELEVENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 25981 of 2008 Between: 1 The Government of Andhra Pradesh, rep. By its Principal Secretary, Education Department, Secretariat Buildings, Secretariat, Hyderabad. 2 The Director of School Education, Andhra Pradesh, Hyderabad. 3 The District Educational Officer, Hyderabad District. ..... PETITIONER(S) AND K. Shakuntala W/o. K.Venkatesh Government High School, New Rly. Colony, Moulali, Secunderabad, R/o. B-10-6-M.C. Quarters A.466679631, New Government Gandhi Putla, Amberpet, Hyderabad. .....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 in the nature of Writ of Certiorari calling for the records relating to and connected with the Orders dated 7-7-2008 in O.A.No.7868/2007 on the file of the A.P. Administrative Tribunal, Hyderabad and to quash or set aside the same by holding as erroneous and contrary to law and erroneous and pass Counsel for the Petitioner:GP FOR SERVICES I Counsel for the Respondent No.: MR.N.JANAKI RAMA RAO The Court made the following : THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 25981 OF 2008 ORDER: This writ petition is filed assailing the order dated 7-7-2008 passed in O.A.No. 7868 of 2007 on the file of the A.P. Administrative Tribunal, Hyderabad. The respondent herein has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying to declare the action of the 3rd petitioner herein in passing the Proc. Rc.No.267/C1/CC/2008, dated 19-3-2008 in so far as treating the suspension period of 38 days on half pay leave and 553 days as on Loss of Pay as arbitrary, illegal and consequently direct the petitioners herein to pay the pensionary benefits by paying the balance 25% of the salary for the period from 29-9-2000 to 13-5-2002 by regularizing the said period as on duty and fix the pension taking the date of retirement of the respondent herein as 31-12-2007, accordingly by paying the arrears with interest. The Tribunal after considering the matter at length directed the petitioners herein to treat the period of suspension from 30-9- 2000 to 23-5-2002 as duty period and to settle the pensionary benefits within a period of eight weeks. The brief facts of the case are as follows: Respondent herein while working as an Attender under petitioner No.3 herein was placed under suspension vide proceedings dated 29- 9-2000 on the allegation that she has not obeyed the orders of the higher authorities and used unparliamentary language with the teachers and students. Thereafter the respondent was reinstated into service on 13-5-2002. It is the case of the respondent that at no point of time charge Memo was issued to her therefore, there were no disciplinary proceedings pending against her. She applied for voluntary retirement and she was permitted to retire vide Proc. Rc.No. 5916/CII/2006, dated 4-12-2007. As the retrial benefits have not been settled, the respondent approached the Tribunal for regularizing the period of suspension with effect from 29-9-2000 to 23-5-2002 and for sanction of 25% of the salary for the suspension period and to further direct the petitioners herein to pay pensionary benefits by sanctioning 24 years increment. It is the further case of the respondent that after reinstatement into service with effect from 13-5-2002, she has not been served with any Charge Memo or any disciplinary proceedings have been initiated. Therefore, she is entitled for the suspension period to be treated as ‘on duty’ and also for payment of 25% balance salary during the period of suspension as she has already been paid 75% of the salary and that in view of not regularizing the said suspension period, 24 years increment was also not released. Hence, sought for a direction to the respondents to release 24 years increment and to settle pensionary benefits. It is the stand of the respondent that even now the petitioners have not issued any Charge Memo in view of Rule 9 of the A.P. Revised Pensionary Rules, as she retired from service with effect from 30-11-2007 and that Charge Memo has to be issued within four years from the date of the alleged incident. The allegations against the respondent relates to the year 2000, no charge Memo can be issued for initiation of the disciplinary proceedings against the respondent at this distance of time. Therefore she claims that she is entitled to the reliefs sought for in the O.A. Per contra, the petitioners herein filed counter-affidavit inter alia contending that the respondent was suspended on 29-9-2000 and the Deputy Educational Officer, Nampally was appointed as Enquiry Officer. But, the enquiry could not be completed as the said Enquiry Officer was promoted as District Educational Officer. Thereafter, as there was long lapse of time in concluding the enquiry against the respondent, the respondent was reinstated into service. Later, the Dy. DEO Musheerabad was appointed as Enquiry Officer. In his Enquiry Report, dated 18-9-2000, he has stated that he has conducted enquiry on 12-9-2007 in Government Girls High School, Musheerabad and directed the Head Master to instruct the respondent to appear before the enquiry and though the respondent was on duty, on that day, she refused to attend the enquiry and hence, the Enquiry Officer was unable to proceed with the enquiry. Subsequently, the respondent applied for voluntary retirement with effect from 30-11-2007. Later, it is stated that the date of retirement was revised with effect from 31-12- 2007 vide proceedings dated 11-3-2008 and the period of suspension i.e. from 30-9-2000 to 23-5-2002 has been treated as leave eligible as per rules in force vide Proc. Dt. 11-3-2008. In view of the proceedings datd 11-3-2008, the respondent sought for amendment of the main prayer by challenging the said proceedings dated 11-3-2008 with respect to the regularization of the period of suspension as leave etc., on the ground of not intiating the disciplinary proceedings. Further the petitioners have not stated any reasons to treat the said period as not on duty. The Tribunal after considering both oral and documentary evidence found that at no point of time the petitioners herein issued Charge Memo to the respondent. The enquiry conducted by the petitioners was a preliminary enquiry, which was also not concluded. The Tribunal further found that as the disciplinary proceedings have not been initiated, while the respondent was in service, the period of suspension cannot be treated as ‘not on duty’. The Tribunal directed the petitioners to treat the period of suspension from 30-9-2000 to 23-5- 2002 as duty period and to settle the pensionary benefits including sanction of 24 years increment within a period of eight weeks from the date of receipt of copy of the order. Aggrieved by the order of Tribunal in treating the respondent’s suspension period as ‘on duty’, the respondent in the O.A.has filed this writ petition. We have heard learned Government Pleader appearing for the petitioners as well as learned counsel appearing for the respondent. Learned Government Pleader appearing on behalf of the petitioners submits that the Tribunal was not justified in directing them to treat the period of suspension of the respondent as on duty and order of the Tribunal is liable to be set aside. Learned counsel for the respondent submits that the findings recorded by the Tribunal are based on sound reasons and the very fact that the petitioners have not issued Charge Memo so far does not call for interference with the order of the Tribunal. Having regard to the facts and circumstances of the case, we are of the opinion that though the preliminary enquiry was initiated, but it had not been concluded and that a part the petitioners have not issued any Charge Memo so far and no regular enquiry was initiated and the respondent was allowed to retire voluntary. In that view of the matter, when once the petitioners had accepted the voluntary retirement of the respondent, the relationship between employer and employee ceases and they cannot invoke Rule 9 of A.P. Revised Pension Rules. In the circumstances, we do not find any flaw in the order of the Tribunal in treating the suspension period as ‘on duty’ and the same does not warrant interference by this Court in exercise of power under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed. No order as to costs. However, the petitioners are directed to pay the retirement benefits to the respondent within eight weeks from the date of receipt of copy of this order. ____________________________ Justice Ghulam Mohammed ______________________________ Justice B. Seshasayana Reddy 11th December, 2008. KM THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 25981 OF 2008 11th December, 2008.