IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION No.13860 of 2006 Between: 1.The Deputy Inspector General of Police, Guntur Range, Guntur. 2.The Superintendent of Police, Nellore. ..... PETITIONERS AND Sri S.A.Kareem, Asst. Sub-Inspector of Police, Nellore District (Formerly H.C.10) .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ or direction more particularly one in the nature of "writ of certiorari" calling for the records, relating to and connected with order dated 06-11-03 in O.A.No.1762/2000 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and to quash the same by holding as erroneous and contrary to law. Counsel for the Petitioner: GP FOR SERVICES I Counsel for the Respondent: MR.S.GOPAL RAO The Court made the following: ORDER: (Per. Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed seeking Certiorari to quash the order dated 6-11-2003 in O.A.No.1762 of 2000 on the file of the Andhra Pradesh Administrative Tribunal (for short “the Tribunal”). Respondent herein is the applicant who filed the present O.A. and the status of the parties will hereinafter be referred to as arrayed before the Tribunal. The sum and substance of the case, in a nutshell, is that on a complaint given by one Avula Venkataiah, his wife Ragamma and their son Somaiah on 18-12-1992 to the Sub-Divisional Police Officer, Gudur, against the applicant herein that they paid Rs.1,600/- to him for releasing them from the police station without any cause, the Sub-Divisional Police Officer conducted preliminary enquiry against the applicant, recorded statements of witnesses and submitted his report to the Superintendent of Police, Nellore, through his proceedings dated 4-1-1993 for taking disciplinary action against him. Being satisfied with the report of the Sub- Divisional Police Officer that prima facie case of misconduct of demanding and accepting Rs.1,600/- has been made out, the Superintendent of Police, Nellore, placed the applicant under suspension w.e.f. 17-1-1993 vide D.O.No.47 of 1993, dated 12-1-1993. The Sub- Divisional Police Officer, Atmakur, who was appointed as Enquiry Officer, conducted the enquiry and found the charges levelled against the applicant as not proved vide his report dated 15.12.1993. Thereafter, being disagreed with the said report, the Superintendent of Police issued a dissent notice to the applicant calling for his explanation and after affording reasonable opportunity and having gone through the explanation given by the applicant, the Superintendent of Police awarded punishment of ‘Removal from service’ treating the period of suspension from 17-1-1993 to 7-10-1993 as ‘Not Duty’ vide his proceedings in C.No.28/PR/93, dated 26-2-1994, against which, the applicant preferred an appeal before the Deputy Inspector General of Police, Guntur Range and the same was considered and rejected by the proceedings in C.No.34/Appl.94, dated 11-10-1994. Questioning the said orders, the respondent filed O.A.No.6479 of 1994 and the Tribunal allowed the said O.A. setting aside the punishment on the ground that there was procedural irregularity while conducting the enquiry. Pursuant to the said orders, the applicant was reinstated into service w.e.f. 4-2-1996 vide proceedings No.D.O.No.134/1996, dated 30-1-1996 and a De Novo enquiry was ordered to be conducted in accordance with the revised APCS (CC&A) Rules, 1991, according to which, a fresh charge memo was framed against the applicant dated 30-1-1996 and served on him on 16-2-1996. The Sub-Divisional Police Officer, Atmakur, who was appointed an Enquiry Officer, conducted the enquiry, completed and submitted his report holding the allegations levelled against the applicant to be “Not Proved”, basing on which, the Superintendent of Police, not satisfying with the said report, under the guise of powers conferred on him under Rule-21 (2) of APCS (CC &A) Rules, 1991, issued dissent notice to the applicant on 13-11-1997 calling for his further written statement of defence. Having gone through the written statement and explanation of the applicant, the disciplinary authority awarded punishment of postponement of increment for period of two years with effect of future increments and pension, treating the suspension period from 17-1-1993 to 7-10-1993 and out of employment period from 8-3-1994 to 4-2-1996 as “NOT ON DUTY” vide proceedings No.C.No.28/PR/93, dated 10-3-1998. Aggrieved by the said orders, he preferred an appeal before the Inspector General of Police, Guntur Range and in the mean while, he filed O.A.No.6778 of 1999 before the Tribunal seeking a relief to set aside the punishment awarded to him with all consequential benefits and also to his promotion for the post of Sub-Inspector of Police. The Tribunal passed the interim order dated 17-11-1999 directing the Inspector General of Police to dispose of the appeal, pursuant to which, the Inspector General disposed of the said appeal modifying the punishment of postponement of increment for two years with cumulative effect on future increments to that of punishment of increments for two years without cumulative effect, treating the suspension period and out of employment period as “NOT ON DUTY” vide his proceedings No.C.No.97/Appl/98, dated 12-1-2000. Challenging the said orders, the applicant filed the present O.A.No.1762 of 2000 seeking a relief to set aside the punishment awarded to him with all consequential benefits and the Tribunal disposed of the said O.A. setting aside the order impugned to the extent of treating the period of suspension and period spent on out of employment as “not on duty”, while directing the consequential benefits to be given to him. Aggrieved by the said orders, the present writ petition has been filed by the writ petitioners-authorities. Heard the learned Government Pleader for Services-I and the learned counsel for the respondent. Learned Government Pleader for Services-I contended that when once the imposition of minor punishment was upheld by the Tribunal, the Tribunal was not justified in setting aside the period of suspension and out of employment and directing to pay the consequential benefits to the applicant in view of the proviso to Rule (5) of FR 54-B of Fundamental Rules. On the other hand, learned counsel for the applicant contended that the Tribunal was justified in all respects in passing the order impugned and there was no illegality in the order impugned. He also contended that when the Enquiry Officer held the charges as not proved after appreciating the material placed before him, the Disciplinary Authority ought to have accepted the same. Therefore, the order impugned herein, needs no interference. In this background, the only controversy that is involved in the subject matter is as to whether the Tribunal is justified in setting aside the order impugned before it insofar as treating the period of suspension and out of employment as “NOT ON DUTY”, is concerned? Before going to deal with the point, it is pertinent to note that insofar as the finding of the Tribunal confirming the punishment of stoppage of two increments without cumulative effect is concerned, the applicant has not chosen to challenge the same. If that being the case, there is no other go except to hold that the said finding remains unchallenged. It is to be noted that while upholding the minor punishment awarded by the Disciplinary Authority, the Tribunal set aside the order insofar as the period of suspension and period of “not on duty” are concerned. At this juncture, learned Government Pleader for Services-1, in support of his contention that the Tribunal has failed to assign any reasons for setting aside the order impugned in the O.A insofar as the period of suspension and period of “not on duty” are concerned, and that the Tribunal has failed to consider the deletion of sub rule (5) of Fundamental Rules-54–B, while passing the order impugned and therefore, the order of the Tribunal is liable to be set aside, has drawn the attention of this Court to the proviso to sub rule (5) of F.R. 54-B, which reads as under: “In cases other than those falling under sub-rules (2) and (3) the pay and allowances payable to the Government servant for the period of suspension, shall be limited to the subsistence allowance already paid under FR 53) Proviso: Provided that where the Departmental proceedings against an employee placed under suspension for the imposition of a major penalty, finally end with the imposition of a minor penalty, then the suspension can be said to be wholly unjustified and such employee should be paid full pay and allowances for the period of suspension by passing an appropriate order. (Omitted by G.O.Ms.No.59, Finance & Planning (FW. FR-I) Dept. 17.3.1995” The above G.O.Ms.No.59 makes it clear that the proviso to sub rule 5 of FR 54-B was omitted. In view of deletion of the said proviso and in the absence of any specific provision to treat such a period of suspension as on duty in the Fundamental Rules, it can be easily inferred that there cannot be any hard and fast rule to treat the period of suspension and period of out of employment as on duty, while modifying the major punishment to a minor one. In the peculiar facts and circumstances of the case and in view of deletion of the proviso to sub rule (5) of F.R. 54-B and in the absence of a specific provision under the Fundamental rules, so as to treat the period of suspension and period of out of employment as on duty period, while modifying the major punishment to that of minor one, we have no hesitation to hold that the Tribunal has failed to consider all these aspects, while passing the order impugned herein and therefore, the order of the Tribunal is liable to be set aside insofar as the order treating the period of suspension and the period of out of employment as on duty, is concerned. Accordingly, this writ petition is allowed setting aside the order of the Tribunal insofar as treating the period of suspension and the period of out of employment as on duty, is concerned. However, it is made clear that though the respondent herein filed O.A.No.1762 of 2000 for the relief of considering his promotion, which was not adjudicated by the Tribunal, he is at liberty to make a representation to the Competent Authority seeking notional promotion and the Authority concerned may pass appropriate orders in accordance with law. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date: 13-11-2008 Ksn ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RS}