THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON'BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION No.9321 of 2006 ORDER: (Per THE HON'BLE SRI JUSTICE N.RAVI SHANKAR) Heard the learned Government Pleader for Services-I appearing for the petitioners and Sri K.Anantha Rao, the learned counsel appearing for the widow/legal representative of the late Syed Masood who was the original respondent. It must be mentioned here that during the pendency of the writ petition, the original respondent Syed Masood died and following the same his widow and legal representative Smt Noorjahan Begum came on record as respondent. 2. Aggrieved by the order dated 16.12.2005 of the Andhra Pradesh Administrative Tribunal, Hyderabad (Tribunal), allowing O.A.No.886 of 2001, the Government of Andhra Pradesh and the Director General of Police, Andhra Pradesh, Hyderabad and their subordinate officials have filed this writ petition. 3. It is not necessary to go into details, but it would be sufficient to note that the late Syed Masood who was a police constable in Warangal District was earlier dismissed from service on a charge of misconduct. He filed O.A.No.1706 of 1995 in the Tribunal questioning that dismissal. The Tribunal by its order dated 02.07.1999 held that having regard to the charge of misconduct and the fact that some other constable who was also involved in the same incident was let off with a minor punishment, the punishment of dismissal given to the late Syed Masood was disproportionately high and in that view of the matter it set aside the dismissal order passed against him and remitted the matter back to the competent authority to examine his case once again regarding the punishment. That order became final. 4. Subsequently, the Government by its order in G.O.Rt.No.2793 dated 29.10.1999 considered the matter afresh regarding punishment and modified the punishment as PPI for three years with cumulative effect on par with punishment awarded to PC-626 i.e. another constable. It also reinstated late Syed Masood into service but treated his out of employment period as not on duty and directed the Director General of Police to take up the follow up action. After fixing his pay, having regard to the above punishment imposed, the Superintendent of Police, Warangal, treated the out of employment period from 03.11.1993 to 03.12.1999 as ‘not on duty’, thus denying him all benefits for that period while reinstating him into service. This order of the SP is only in implementation of the above Government order. 5. Questioning the above order of the SP dated 14.03.2000 alone and without questioning the order of the Government in G.O.Rt.No.2793 dated 29.10.1999, late Syed Masood filed the aforesaid O.A.No.886 of 2001. This technicality pertaining to the above omission need not be gone into. As already mentioned, that OA was allowed by the Tribunal and the correctness of that order is now questioned. 6. The main argument of the learned Government Pleader is that in matters relating to treatment of period of suspension or out of duty employment, the Government or the competent authority are given the exclusive power to deal with those aspects under Fundamental Rules 54, 54A and 54B and the competent authority in this case passed the right order and the Tribunal without any justification interfered in the matter. He also pointed out that this is not a case where the Tribunal in the earlier O.A.No.1706 of 1995 has not exonerated the late Syed Masood but only remitted the matter back for imposing minor punishment and the Government and the SP rightly passed the impugned order and that cannot be interfered with. 7. On the other hand, the learned counsel for the widow of late Syed Masood pointed out that SP’s order is not justified and the Tribunal rightly interfered in the matter and he therefore supported it. 8. A perusal of the impugned order dated 14.03.2000 of the 4th respondent SP would show that the petitioner who was earlier dismissed from service w.e.f. 03.11.1993 has been reinstated into service and this was obviously in pursuance of the Tribunal order dated 02.07.1999 made in earlier O.A.No.1076 of 1995. This cannot be said to be factually correct. By its order in O.A.No.1076 of 1995 the Tribunal has set aside the earlier dismissal order treating the punishment as highly disproportionate and set aside the dismissal order on that ground and remitted the matter to the Government to re-examine the matter and it can be said that the Tribunal by its said order directed the Government only to impose a lesser punishment. This is also clear from the fact that the Tribunal considered the punishment given to another police constable i.e. PC-626 who was also involved in a similar charge but was given a lesser punishment of stoppage of 3 increments with cumulative effect. 9. The Government thereafter passed G.O.Rt.No.2793 dated 29.10.1999 imposing a punishment of PPI for 3 years with cumulative effect to be on par with the punishment awarded with the other PC-626 and directed late Syed Masood to be reinstated into service as he did not attain the superannuation age by that date. The said G.O.Rt.No.2793 dated 29.10.1999 would further show that the Government itself treated the period of out of employment of late Syed Masood as not on duty. It was only for implementing this order of the Government, the SP issued the order dated 14.03.2000 reinstating late Syed Masood into service and by treating the out of employment period as not on duty. 10. Thus what should be noted is that in O.A.No.1076 of 1995 the Tribunal did not give a clean chit to late Syed Masood but only set aside the punishment order of dismissal and remitted the matter to Government to re-examine his case for a lesser punishment for the reasons already referred to supra and the Government implemented the same imposing a lesser punishment. Late Syed Masood was reinstated with a lesser punishment as stated above as he did not attain superannuation age at that date. 11. The Tribunal after quoting the SP’s order dated 14.03.2000 and observing that reinstatement was ordered FR-54-A(1) was applicable wherein it is stated that when a Government servant is reinstated under a Court order without holding any further enquiry the period of absence from duty shall be regularized and he shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3). Sub-rule (2) of FR-54-A deals with a case where the Government servant is not exonerated on merits and sub-rule (3) deals with a case where the dismissal order is set aside by the Court on merits. In the present case, the dismissal order was not set aside on merits and the findings regarding charges were confirmed but the matter was remitted to the Government only for imposing a lesser punishment which was imposed. In such a case FR-54-A(2)(ii) applies and going by that provision FR-54(5) has to be applied. Going by FR-54(5) that provision itself says that in such a situation the period of absence from duty shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose. This being not a case of exoneration of late Syed Masood on merits in the earlier O.A.No.1076 of 1995 and the Government having been given the power to impose a lesser punishment under the said order of the Tribunal the period of absence has to be treated as not on duty according to FR-54(5) read with FR-54-A(2)(ii). 12. In view of the above position, G.O.Rt.No.2793 dated 29.10.1999 by which the Government directed the out of employment period of late Syed Masood as not on duty can be said to be correct and in accordance with rules. Thus, the writ petition, in our opinion for the above reasons, has to be allowed straight away setting aside the Tribunal order. 13. However, at the time of arguments, it was pleaded on behalf of the petitioners that late Syed Masood died on 28.11.2011 while in service and the respondent widow of late Syed Masood is getting only a meager pension and therefore the above out of employment period may at least be reckoned for calculation of pensionary benefits, if not for any other purpose. We are aware that this Court should not interfere in such cases and the matter should be left to the Government as it is purely a discretion of the Government under the aforesaid fundamental rules. Hence, we do not propose to grant the relief sought for on behalf of the respondent i.e. the widow of late Syed Masood. 14. In the circumstances, we are of the opinion that the present respondent i.e. the widow of late Syed Masood should be given an opportunity to make a representation on the above lines to the Government in view of the subsequent death of late Syed Masood and the Government may consider the same under FR-54(5) read with the relevant provision under FR-54-A and pass appropriate orders thereon as FR-54(5) gives power to the Government saying that such period shall not be treated as a period spent on duty unless the competent authority directs that it shall be so treated for any specified purpose including grant of any leave. The respondent may make such representation within four months from today and the Government shall independently consider any such representation made by the widow of late Syed Masood subject to its feasibility and pass appropriate orders within three months from the date of receipt of the representation from her. 15. This writ petition is accordingly disposed of in the above terms. No costs. Consequently, all the miscellaneous petitions pending, if any, shall stand closed. __________________________ ASHUTOSH MOHUNTA, J _______________________ N. RAVI SHANKAR, J 18th April, 2013 CVRK