IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF FEBRUARY, TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 1553 of 2009 Between: 1 The Govenment of Andhra Pradesh, R ep by its Principal Secretary, Home Department, Secretariat, Hyd., 2 The Addl.Dir.Genl. of Police, Admn., A.P., Hyderabad. 3 The Commissioner of Police, Hyderabad City, Hyderabad. 4 The Commandang SAR CPL., Amberpet, Hyderabad. ..... PETITIONER(S) AND Sri. P.Brahmaiah, PC.1473, 'C' Coy., O/O. THE Commandant, SAR CPL., 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 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 25-04-2007 OA.No.2469/2004 on the file of the A.P., Administrative Tribunal, Hyderabad and to quash or set aside the same by holding as erroneous and contrary and contrary to law and erroneous and pass Counsel for the Petitioner:GP FOR SERVICES I Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO :1553 of 2009 ORDER: (Per Ghulam Mohammed, J) This writ petition is filed challenging the orders dated 25.4.2007 in O.A.No.2469 of 2004 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad,(for short the “Tribunal”) by virtue of which the Tribunal set-aside a portion of the order with regard to treating the period from 09.08.1999 till the respondent was reinstated in service as not on duty. 2. The respondent approached the Tribunal under Section 19 of the Administrative Tribunals Act,1985 challenging the proceedings dated 20.07.2000 of the fourth petitioner and the consequential rejection proceedings dated 15/25.02.2002 of the third petitioner and Memo dated 31.12.2002 of the first petitioner. 3. The brief facts of the case are that the respondent belongs to Backward Class community and he secured employment as Police Constable on 26.8.1993 and was sent to undergo six months training at II Battalion, Andhra Pradesh Special Police, Kurnool from 01.12.1993. While so, the respondent received left leg ankle injury and he was sent to Hospital under sick passport on 06.1.1994 for treatment for a period of one week. The respondent underwent treatment as out-patient from 06.01.1994 to 07.01.1994 with two weeks rest up to 20.01.1994. After availing rest, the respondent reported for training at II Battalion, APSP, Kurnool on 21.1.1994. The respondent absented from duty from 31.1.1994 and completed 21 days of absence and he was declared as deserter. The respondent remained absent from 31.1.1994 to 16.5.1994 and he was removed from service by an order dated 03.04.1995. The respondent challenged the same before DIG, APSP and he was reinstated into service by the appellate authority by order, dated 12.06.1995 with a liberty to hold de novo enquiry. There was delay in conducting de novo enquiry. A charge sheet was issued to the respondent vide proceedings dated 25.1.1998 and ultimately he was removed again from service by proceedings dated 05.08.1999. The respondent challenged the same before the Tribunal in O.A.No.5014 of 1999 and the Tribunal by order dated 13.10.1999 allowed the O.A. with the following observation: “ We find that the applicant in this case is a young man with a lot of service before him and the impugned order imposing the punishment of removal from service is completely disproportionate to the material established against him. It is not as if the respondents were not aware of the fact that the applicant had suffered serious ankle injury which required prolonged treatment and he was given only one week sick passport and after taking treatment, the applicant duly returned to duty and he was anxious to perform his duties. We find that the order of removal is not at all proportionate to the material established against the applicant and shocking to the judicial conscience. We are also guided by the above decisions of the Punjab & Haryana High Court and the Supreme Court respectively. We have no hesitation to set-aside the impugned proceedings No.A3/PR-14/SAR/94-96/1875 dated 5.8.1999 imposing the punishment of removal from service on the applicant, and we accordingly set aside the same and remit the case back to the Respondents for imposing any other punishment other than dismissal, removal or compulsory retirement from service. The O.A. is accordingly allowed. No costs.” 4. In compliance with the order of the Tribunal, petitioner No.4 by proceedings dated 20.4.2000 reinstated the respondent into service and modified the punishment of removal from service to that of punishment of postponment of increment for three years with effect on future increments and pension and ordered that Absent Without Leave period from 31.1.1994 to 16.5.1994 is treated as Leave without Pay and out of employment period from 09.08.1999 till the respondent reported for duty is treated as not on duty. Agaist the same, the respondent preferred an appeal before petitioner No.3 and the same was rejected on 15/25.2.2000. Then respondent filed revision before the first petitioner-Government and it was also rejected on 31.12.2002. Aggrieved by the same, the respondent preferred the present O.A. 5. The petitioners filed a counter affidavit in the O.A. contending that the respondent absented from duty from 31.1.1994 to 16.5.1994. The respondent was sent to hospital through sick passport on 06.1.1994 for treatment for sprain in his left leg ankle and he was advised rest up to 21.1.1994 and from 31.1.1994 he absented from duty and he was declared as deserter in terms of A.P.P.M. Order No.224 for remaining absent for more than 21 days. On appeal to the D.I.G, APSP, he was taken on duty on 29.11.1994, pending de novo enquiry. After enquiry, the respondent was removed from the service. 6. The Tribunal, after taking into consideration the facts and circumstances of the case, held that the impugned order insofar as imposing the punishment of postponment of increment for three years with effect on future increments and pension and treating the period from 31.1.1994 to 16.5.1994 as leave without pay, does not call for interference. However, the Tribunal set-aside a portion of the order with regard to treating the period from 09.08.1999 till the respondent was reinstated into service as not on duty. 7. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 8. The learned counsel for the petitioners contended that since the respondent has not worked from 09.08.1999, till his reinstatement , the Tribunal has grossly erred in directing to treat the period from 09.08.1999 till he was reinstated into service as on duty and prays to set-aside the same. The learned counsel further contended that when an employee is dismissed from service for misconduct or misbehavior and is reinstated through orders of appellate authority or courts, the employee is not entitled to pay and allowances during the out of service period as well as leave without pay. 9. The learned counsel for the respondent submits that since there was delay on the part of the petitioner authorities in reinstating the respondent into service, the order of the Tribunal cannot be interfered with and prays to dismiss the writ petition. 10. Having regard to the facts and circumstances of the case, it is evident that against the proceedings dated 05.08.1999, the respondent approached the Tribunal in O.A.No.5014 of 1999 and the Tribunal set-aside the proceedings by order dated 13.10.1999 and remitted the matter back to the petitioners for any other punishment, other than dismissal, removal or compulsory retirement from service. In compliance with the order of Tribunal, through proceedings dated 20.4.2000 of the fourth petitioner, the respondent was reinstated into service and modified the punishment of removal from service to that of punishment of postponement of increment for three years with effect on future increments and pension and ordered that Absent Without Leave period from 31.1.1994 to 16.5.1994 is treated as Leave Without Pay and out of employment period from 09.08.1999 till the respondent reported for duty, is treated as not on duty. Challenging the same, the respondent filed appeal before the third petitioner and the same was rejected by proceedings dated 15/25.2.2002. Thereafter, respondent filed revision petition before the Government and the same was rejected. Challenging the same, the respondent preferred the present O.A. before the Tribunal and the Tribunal after discussing elaborately, observed that insofar as imposing the punishment of postponment of increment for three years with effect on future increments and pension and treating the period from 31.1.1994 to 16.5.1994 as Leave Without Pay, does not call for interference. However, the Tribunal set-aside the portion of the order with regard to treating the period from 09.08.1999 till the respondent reinstated into service as not on duty. 11. It is evident that the respondent was removed from service on two occasions. Earlier the appellate authority reinstated the respondent into service on 12.6.1995 and ordered to hold de novo enquiry as per APCS (CCCA) Rules, 1991 and the enquiry was conducted after a lapse of four years and again he was removed from service by order dated 09-08-99 and the same was set-aside by the Tribunal vide orders dated 13.10.1999 in O.A.No.5014 of 1999. In this writ petition, the petitioners are challenging a portion of the order of the Tribunal with effect to treating the period from 09.08.1999 till the respondent is reinstated into service, as on duty. 12. In view of the facts and circumstances, we are of the view that the delay in reinstating the respondent into service, on the second occasion, cannot be entirely attributed on the petitioner-authorities and the delay might have caused due to some other reasons. Therefore, in the interest of justice, we are inclined to modify the above referred portion of order of the Tribunal with that of “treating the period from 09.08.1999 till the respondent was reinstated into service as on duty for pensionary benefit and all other benefits but without pay”. 13. With the above modification, the writ petition is disposed of. There shall be no order as to costs. _____________________ GHULAM MOHAMMED,J ________________ SANJAY KUMAR,J 05-02-2009 Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{LS}