THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No. 12589 of 2010 Dated: 6-7-2010 Between: R.Bala Prasad …Petitioner and The Government of A.P., rep. by its Chief Secretary, Women Development Child Development (JJ) Dept. and Juvenile Welfare, Correctional Services A.P., Hyderabad and others …Respondents ORAL ORDER: (Per Hon’ble Sri Justice Goda Raghuram) In this writ petition the order dated 22-8-2007 of the 3rd respondent declaring that the petitioner is deemed to have been dismissed from Government service with effect from 6-8-2007; the date of the petitioner’s conviction in C.C.No. 155 of 2005 by the Judicial First Class Magistrate, Guntakal, in terms of Rule 9 (x) of the Andhra Pradesh Civil Services (CCA) Rules, 1991 (for short ‘the 1991 Rules’) is challenged and a declaration sought to the respondents to reinstate him into service with all consequential benefits including full back wages with effect from 6-8-2007 to 30-11-2008 and to permit him to retire on 30-11-2008 and pass such other further orders. The petitioner joined service as a District Probation Officer in 1980 and was eventually promoted as the Superintendent of Homes in 1999. In that position he was posted as the Superintendent, Govt. Observation Home for Boys, Guntakal. In respect of his alleged misconduct during his service as a Superintendent, several charge memos were issued. Prosecution was also initiated including in C.C.No.155 of 2005. The petitiner was convicted in C.C.No. 155 of 2005 and sentenced to Simple Imprisonment for one year and a fine of Rs.1000/- and indefault thereof SI for one month for an offence Under Section 189 IPC and SI for a period of six months for an offence under Section 506 IPC, the sentences to run concurrently. On the basis of this conviction recorded by the Judicial First Class Magistrate, Guntakal, the 3rd respondent exercising powers under Section 9 (x) of the 1991 Rules declared the petitioner as dismissed from service with effect from the date of his conviction i.e., 6-8-2007. Aggrieved by the conviction and sentence in C.C.No. 155 of 2005, the petitioner preferred Crl.A.No. 87 of 2007 before the I-Addl. Sessions Judge, Ananthapur. The appeal was only partly allowed. Aggrieved thereby the petitioner preferred Crl.Revision Case No. 1588 of 2008 before this Court and this Court by the judgment dated 25-2- 2009 allowed the revision and acquitted the petitioner. In view of the eventual acquittal by this Court in Crl.R.C.No. 1588 of 2008, which has become final and operative, the State should have gracefully recalled the earlier order dated 22-8-2007 dismissing the petitioner from service, solely on account of his conviction. The State took no steps to recall the dismissal order. It also required to be noticed that the several charge memos issued in respect of a raft of allegations of misconduct were clubbed and disciplinary proceedings therein referred to the Commissioner of Inquiries. The petitioner, aggrieved by the inaction of the State in recalling his dismissal order despite his acquittal filed O.A. No. 5621 of 2009 before the learned A.P. Administrative Tribunal (for short ‘the Tribunal’), challenging the order of dismissal dated 22-8-2007. By the order dated 20-11-2009 the Tribunal observed that in view of the acquittal of the petitioner by this Court in the criminal revision, the order of dismissal would not survive. The Tribunal set aside the order of dismissal. As a consequence of the invalidation, the petitioner would have been entitled to back wages and all terminal benefits including pension, in view of the fact that he had attained the age of superannuation on 30-11-2008, during the currency of the several proceedings. However, the Tribunal noticed that all disciplinary proceedings initiated against the petitioner were referred to the Commissioner of Inquiries by the State Government in G.O.Rt.No. 138 dated 2-5-2006 and that another criminal case is pending trial before the appropriate criminal court. In view of the pendency of the criminal cases and the several disciplinary proceedings, now before the Commissioner of Inquiries, the Tribunal declined to determine or regularise the period between the date of dismissal and its recall on his acquittal; declined to direct payment of salary and other emoluments for this period as this determination would have to await conclusion of the several disciplinary proceedings now pending before the Commissioner of Inquiries. The Tribunal however ordered that the arrears of provisional pension for the period 6-8-2007 till the date of the order (in O.A.No. 5621 of 2009) should be paid to the petitioner within a period of four weeks from the date of receipt of a copy of the order and that the respondents should continue to pay the petitioner the provisional pension till conclusion of the disciplinary proceedings initiated against him and pending before the Commissioner of Inquiries. The Tribunal also observed that the petitioner should cooperate with Commissioner of Inquiries for expeditious conclusion of the disciplinary proceedings and if he does not so cooperate the Commissioner of Inquiries would be at liberty to proceed exparte. The petitioner did not challenge the order of the Tribunal dated 20-11-2009 in O.A.No. 5621 of 2009 presumably as he was satisfied with the structure of the order and the quantum of relief granted therein. He has however filed this creative writ petition seeking invalidation of the 3rd respondent’s order dated 22-8-2007 (declaring that the petitioner is deemed to have been dismissed from Govt. service on the basis of his conviction in C.C.No. 155 of 2005). The order dated 22-8-2007 has already been set aside by the order of the Tribunal in O.A.No. 5621 of 2009. The other and consequent relief sought herein, namely that the respondents should reinstate him into service with all consequent benefits including full back wages with effect from 6-8-2007 to 30-11-2007 and to permit him to retire on 30-11- 2008 are reliefs that cannot be granted in a writ petition in the first instance, in view of the decision of the Supreme Court in the Union of India V. L.Chandra Kumar[1]. There is the another reason why the petitioner is not entitled to the relief sought herein. By the order of the Tribunal dated 20-11-2009 in O.A.No. 5621 of 2009, the relief of back wages for the period from 6-8-2007 to 30-11-2007 was denied for the present and the petitioner was directed to await outcome of the disciplinary proceedings pending before the Commissioner of Inquiries. The other terminal benefits like pension and gratuity were also denied for similar reasons. The Tribunal clearly directed the respondents to pay the petitioner provisional pension under Rule 52 of the A.P. Revised Pension Rules, 1980. In view of pending disciplinary proceedings and the petitioner not having challenged the order of the Tribunal in O.A.No. 5621 of 2009 and permitted that judgment to become final cannot recant and seek the same relief by a side wind, under Article 226 of the Constitution. On the aforesaid analysis, there are no merits. The writ petition is dismissed. However, there shall be no order as to costs. _________________________ GODA RAGHURAM, J _________________________ R. KANTHA RAO, J 6th July, 2010. GRR [1] AIR 1997 SC 1124