HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.No.22366 of 2002 O R D E R: This writ petition is filed by the petitioner to declare the action of the respondents in not granting continuity of service and pay protection to the petitioner, as illegal and unjust and consequently direct the respondents to grant continuity of service and pay protection to the petitioner. The case of the petitioner is that the petitioner was appointed as Bill Collector in APSEB on 24.11.1981. He was promoted to the post of Revenue Cashier in April, 1982. On 18.11.1989 he was placed under suspension for misappropriation of Board funds. A crime was also registered against the petitioner under Section 409 and 420 IPC. He was convicted by Judicial First Class Magistrate, Mahabubabad in C.c.No.84 of 1991 to 9 months R.I. and fine of Rs.1,500/-. The Department did conduct domestic enquiry for his alleged misconduct. Aggrieved by the said conviction, he preferred Crl.A.No.6 of 1995 before the District and Sessions Judge, Warangal and the learned Sessions Judge confirmed the sentence awarded by the trial Court. As against the said confirmation, he preferred Crl.R.C.No.939 of 1996 before this Court. This Court by order dated 11.12.1998 was pleased to modify the sentence and passed an order setting the petitioner at liberty as he had already paid the entire amount and the sentence of imprisonment was confined to the period already undergone. Pursuant to his dismissal from service on 31.06.1994 and in view of the orders of this Court modifying his sentence, he preferred an appeal dated 02.05.1994 to the Chief Engineer, Warangal Zone requesting him to set aside the orders issued by the Superintending Engineer, Warangal Zone and requested him to re-instate the petitioner into service. The Chief Engineer examined his case and rejected his appeal. Thereafter, he preferred an appeal to the Chairman, APSEB on 16.08.1994 requesting him to re-instate into service. Thereupon, the Chairman, APSEB taking into consideration of his financial position and on the representation of his wife dated 01.04.1998, was pleased to grant appointment afresh as LDC (Revenue Cashier) on compassionate grounds by proceedings dated 04.06.1998 without giving credit to his past service in the minimum scale of pay of LDC at Mothugudem and directed that his past service rendered shall not be taken into consideration for any purpose. The petitioner joined duty on 20.06.1998 at Mothugudem. The petitioner’s family is staying at Hyderabad. The petitioner had been appointed in the minimum time scale of pay, himself and his family had been facing extreme hardship to make both ends of justice. Under those circumstances, he made a representation dated 16.11.2001 to the Chairman and Managing Director, APTRANSCO requesting him to condone the break of his service from 18.11.1989 to 20.06.1998 and for protecting his pay. The 1st respondent by memo dated 06.02.2002 rejected his application holding that condonation of break of service and pay protection does not merit consideration. Hence, this writ petition. On behalf of the respondent a counter affidavit has been filed denying the allegations made in the petition interalia contending that the Superintending Engineer/Operation/Warangal vide Memo No.Se/o/Wgl/Estt/U1/189/94, dated 23.04.1994, kept the petitioner under suspension for defalcation of Board’s funds and finally dismissed him from service after obtaining the opinion of the concurrence committee under regulation 10(2)(a) of the APSEB Employees Discipline and Appeal Regulations, on the following charges:- a) Sri A.Dayakar Reddy ie., petitioner herein R.C. was given two P.R.Books bearing No.174 and 175 on 30.10.1989, on 13.11.1989 and 15.11.1989. He had collected C.C.charges amounting to Rs.29,959-40 approximately from various consumers of the village under Maripeda Mandal and not remitted the amount into the Bank or in the E.R.O., Mahabubabad and not rendered the account to the Asst.Accounts Officer/ERO/Mahabubabad. In reply to the above charge Sri A.Dayakar Reddy ie., petitioner herein stated that 14.11.1989 being a holiday, he kept the collections with him of 13.11.1989 and that of 15.11.1989. He had collected upto 5.00 P.M. and started at 6.00 P.M. from Maripeda by Hanamkonda bus to go to Mahabubabad after 6.00 P.M. from Maripeda. He further stated that after reaching Thorrur at 7.00 P.M. he got down the bus to attend the nature call in the ground adjoining to bus stand. While he was attending the nature call, two persons pounced on him and snatched away the brief case, in which departmental cash and other records were kept. He could not follow them, since they had run away like lightening. Then he went to the police station to give report, but no body responded. He could not tell details for the fear of his identity by robber. Then he went to Hanamkonda to see his alling son. He also stated that on 17.11.1989, he had reported that fact to the Assistant Accounts Officer/ERO/Mahabubabad. The explanations submitted by the petitioner, is not entirely convincing. Further he stated that the petitioner (under suspension) could not produce any evidence to show that he had travelled in the RTC bus from Maripeda toThorrur on 15.11.1989 by way of noting the bus number and preserving the tickets or any other proof. He had also not produced any proof that his brief case was snatched away by two miscreants while he was attending nature call at Thorrur bus stand. If actually miscreants snatched away the brief case from him, he should have cried and some help might have come from the other passengers available in the bus stand as he was in the bus stand compound only nor reported to any body in the bus stand (RTC authorities) or any complaint in the police station. The statement that no body had responded in the police station is not believable. Thus he had failed and he was responsible for loss of Board’s money. Though his statement of snatching away of his brief case while attending nature call by miscreants cannot be ruled out altogether, it is not believable in the absence of any proof of his travelling in the RTC bus and he has also failed to produce any evidence in support of his statement. b) I submit that on 30.10.1989 the petitioner was given two P.R. books bearing Nos.174 and 175 containing P.R.Nos. from 86501 to 87000 and 87001 to 87600 respectively. It is alleged that he had not handed over the P.R.Books, BCRC and P.C.Books in the E.R.O., Mahabubabad, after attending the collections as expected of him. c) I submit that in reply to the above charge the accused stated that he had lost the brief case in which the cash and P.R. books, B.C.R.Cs and PCBs were kept. Hence he could not submit the records in E.R.O. I submit that explanation of the petitioner is not convincing. The contention of the petitioner that he lost the records and cash at Thorrur bus stand is not acceptable. Since he has failed to produce proper evidence. He had not proved that he had travelled in the R.T.C. bus from Maripeda to Thorrur. Further he failed to take proper care in safeguarding the Board’s property. Aggrieved by the same, the petitioner filed W.P.No.2361 of 1998 before this Court and this Court in its direction dated 03.02.1998 directed the 1st respondent ie., the then Chairman, APSEB to hear and dispose of the revision submitted by the petitioner within two months from the receipt of the order. Pursuant to the judgment of this Court dated 23.02.1998 a personal hearing was given to the petitioner on 01.04.1998 for disposal of the petition dated 16.08.1994, and after careful examination of the case, the then Chairman, APSEB felt that the petitioner did not deserve for reinstatement. However, taking into consideration the financial position of the family represented by his wife and taking a lenient view the following orders were issued. i) Sri A.Dayakar Reddy ie., petitioner may be appointed afresh as LDC (Revenue Cashier) purely on compassionate grounds without giving any credit, to his past service for any purpose, purely on compassionate grounds. ii) He shall start afresh with minimum of the time scale of LDC (Revenue Cashier) iii) He may be posted under the control of Superintending Engineer/O&M/LSHES Circle/Mothugudem for utilizing his services in non-local area. iv) He shall be admitted into uty on fresh appointment only after remittances of misappropriated amount of Rs.29,959.40 in full to board. v) He shall give an undertaking for his good behaviour in future. vi) The service rendered by him prior to dismissal on 18.11.1999 shall not be taken into consideration for any purpose including for promotion to the next higher cadre and terminal benefits on retirement etc. By memo dated 06.02.2002, the appeal of the petitioner ie., A.Dayakar Reddy, LDC/LSHES for condonation of break in service and his pay protection was rejected as he was dismissed from service for defalcation of Board funds, and later appointed as LDC as a fresh candidate starting with the minimum scale of pay in the cadre of LDCs., based on the judgment of this Court in Crl.R.C.No.939 of 1996 dated 11.2.1998, it is also made clear in the appointment order that his appointment is purely on compassionate grounds and the past service rendered by the petitioner prior to his dismissal shall not be taken into consideration for any purpose including for promotion to the next higher grade and terminal benefits on retirement. During the course of arguments, a memo dated 14.05.1990 issued by the Member Secretary, APSEB, Hyderabad, is filed. Paragraph 3 of which reads as under: “With regard to treatment of the period of suspension/dismissal in respect of cases referred to under item (ii) above, provision of regulation 57(6) of the APSE.Board Regulations part-I shall be applied, ie. if the employee under suspension is permitted to rejoin duty on termination of criminal proceedings, he shall not be entitled to any thing more than what he would have received if he had been granted leave admissible to him for the period of his absence from duty since his detention. The amount of subsistence allowance already drawn by him is to be adjusted against his pay and allowances, in respect of the employee under suspension who has dismissed from service on conviction by a Court of Law, but reinstated into service because of acquittal by Higher Court the period from the date of dismissal till the date of joining duty on reinstatement shall be treated as dies –non and the earlier period of suspension shall be treated as leave as indicated above.” The learned counsel for the petitioner submitted that by virtue of the memo issued by the Board, the petitioner is entitled for service. The petitioner filed this memo across the bar. In view of the memo, the writ petition is disposed of as under: The respondents are directed to consider the case of the petitioner for grant of continuity of service and other benefits in terms of memo dated 14.05.1990 issued by Member Secretary, if that memo is still in force or any other memo, and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. ________________ G.CHANDRAIAH,J 11th April, , 2011 PNV