HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZUL PURKAR W.P.Nos. 26455 of 2006 and 1084 of 2007 COMMON ORDER: ( per Hon’ble Sri Justice Vilas V. Afzul Purkar) These two Writ Petitions are filed by the State seeking to challenge the correctness of the common judgment, dated 14.03.2006, of the Andhra Pradesh Administrative Tribunal, allowing O.A.Nos.2476 of 2001 and 4556 of 2004 filed by the respondent herein. The reliefs sought for in the said O.As., are as follows: “ O.A.No. 2476 of 2001: to call for the records, examine the matter thoroughly and quash the order contained in Proceedings No. GL/EC3/WCE/519, dated 02.03.1998 of the Superintending Engineer, N.S. Dam Circle, Hill Colony, Nagarjuna Sagar, Nalgonda District, as arbitrary, illegal and unconstitutional insofar as pension is concerned. O.A.No. 4556 of 2004: to call for the records, examine the matter thoroughly and quash the impugned order contained in Proceedings No. GL/EC2/WCE/519, dated 02.03.1998 of the Superintending Engineer, N.S. Dam Circle, Hill Colony, Nagarjuna Sagar to the extent of period of absence from 29.07.1977 to 15.05.1992 and direct the respondents to treat the period from 29.07.1977 to 10.06.1981 as leave on medical grounds and the period from 11.06.1981 to 15.05.1992 as the period on compulsory wait on duty with all consequential benefits thereof.” It could be noticed from the above that while in O.A.No. 2476 of 2001, the order of Superintending Engineer, dated 02.03.1998 was questioned, in O.A.No. 4556 of 2004, the said order of the Superintending Engineer to the extent of treating the period of absence from 29.07.1977 to 15.05.1992 was questioned and a declaration to treat the period from 29.07.1977 to 10.06.1981 as leave on medial grounds and further period from 11.06.1981 to 15.05.1992 as the period on compulsory wait on duty, was sought for. The facts in brief are, the respondent herein was initially appointed as temporary Maistry on 17.03.1956 covered under the Provincialized Workcharged Establishment, in terms of G.O.Ms.No. 407, dated 27.03.1972. While he was working as such, from 01.03.1977, he availed medical leave for one month, that was extended by six months and thereafter, neither there was any leave sought for nor any extension sought for and continued to remain absent. The petitioners State ultimately issued a memo, dated 04.10.1978 asking the respondent to appear before the Medical Board, as he was absent for more than six months, without obtaining leave. The said memo was served on the family members of the respondent, but there was no response. The petitioners State extended the time for appearing before the Medical Board till 28.02.1979, even then there is no response. Ultimately, on 12.06.1981,the respondent approached the Deputy Executive Engineer with a photo copy of the medical certificate dated 01.01.1979. The said medical certificate shows that the respondent was suffering from hyper tension and rest for 30 months was required to be taken by him. The Deputy Executive Engineer before whom he reported the aforesaid medical certificate, referred the matter to the Chief Engineer, N.S. Project and he further referred the matter to the Government for appropriate orders as to whether the respondent is to be admitted to duty or not. The Government, ultimately, considered the matter and issued a memo No. 150/Estt (2)87-19, dated 02.05.1992, wherein the Government was of the view that the respondent being a work-charged Inspector, is not a Government servant and covered by the Labour laws. However, after examination of the case, it was directed that the respondent be re- instated as Work Inspector with immediate effect, however, the disciplinary proceedings may be initiated against him, after accepting his option under G.O.Ms.No. 130, Irrigation and CAD Department, dated 10.03.1981 for absorption in Government service in accordance with the Rules. It is thereafter that the Superintending Engineer, N.S. Project, under his proceedings, dated 25.09.1992, called upon the respondent to explain his unauthorized absence and appointed one Deputy Executive Engineer, Gates Sub- Division as Enquiry Officer under Rule 19 sub-clause (2) of the CCA Rules to enquire into the said charge of unauthorized absence. Meanwhile, in terms of the Government memo referred to above, the respondent was taken on duty on 16.05.1992. Later, he retired on 31.07.1992. As many as four charges framed were framed against the respondent. They are: “Charge I : you had applied leave from 01.03.1977 to 28.02.1979 on Medical grounds and stayed away without prior sanction of the leave and later you neither submitted any extension of leave letter nor reported for duty. You should explain, as to why disciplinary action should not be taken against you, for availing leave without proper sanction up to 28.02.1979. Charge II: In fact in the Executive Engineer, Buildings and Roads Memo No. F/A4/B&R/78-79/794-S/Dt. 04.10.1978, you have been directed to appear before the Superintendent, K.N. Hospital, Hill Colony, for medical examination. But you were not available at your residence to receive the same. In spite of serving the above Memo to your family members, you have not turned up for medical examination before the Superintendent, K.N. Hospital. This amounts to misconduct, which attracts disciplinary proceedings. Charge III: There are no leave applications beyond 28.02.1979 from you. But, on 12.06.1981 you produced medical certificate dated 01.01.1979 issued by the Doctor at Hyderabad. Thus, it is proved that you have unauthorizedly stayed away from 01.03.1977 to 12.06.1981 which is against rules and thus you are liable for disciplinary proceedings. Charge IV: you have initially applied for medical leave from 01.03.1977 to 28.02.1979 stating that you fell ill and availed Homeo Treatment at N.S. Dam. Subsequently you stated that you approached Dr. Syed Ahmed Jalil at Hyderabad and as per his instructions you took treatment from 01.01.1979 from him. In the intervening period you were directed to appear for medical examination before the Superintendent, K.N. Hospital but you failed to report. Instead you approached the Deputy Executive Engineer with a certificate issued on 01.01.1979 from Hyderabad Doctor in 6/81. You are informed that obtaining a medical certificate from a doctor for long absence is not justified. Therefore the bonafides of the grounds on which you applied for leave are doubtful and your long absence from Headquarters is questionable. You are therefore liable to explain your whereabouts during the entire period as it leads to suspicious that you secured employment elsewhere and after the term of employment is over, you again approached the department with a single Medical Certificate with a request to admit you to duty.” The respondent filed his explanation apart from the statement and the Enquiry Officer considered the explanation and statement of the respondent and recorded his findings that the leave applied for by the respondent in the first instance from 01.03.1977 to 01.09.1977 and its extension up to 28.02.1979, is itself of a doubtful nature as though he was served with a memo dated 04.10.1978 to appear before the Superintendent, K.N. Hospital for medical examination, he was not available at his official residence. The memo was served on the family members and the respondent willfully avoided appearing before the Superintendent of K.N. Hospital. The Enquiry Officer also felt that the statement of the respondent that he obtained permission from Dr. Syed Ahmed Jalil from 01.01.1979 and his further statement that he took treatment in Hyderabad from 01.01.1979 to 03.05.1981 and that he has no medical bills and prescription issued by the doctor during all these periods, does not establish credentials of his statement. The Enquiry Officer, therefore, found that the charges are proved and opined that the case attracts severe punishment under CCA Rules, but however, since the respondent retired from service, suitable punishment under Rule 9 of the Revised Pension Rules may be inflicted by the competent authority. Based on the said report of the Enquiry Officer, the Superintending Engineer passed an order under proceedings NO. GL/EC3/WCE/519-S, dated 02.03.1998,which is as follows: “ a) the absence period from 29.07.1977 to 15.05.1992 A.N. without any leave or extension of leave has been established and concluded as misbehavior on the part of Sri M.A. Waheed, Work Inspector. As per the provision of F.R.18, Note (1), the period of absence from 29.07.1977 to 15.05.1992 has been treated as “DIES-NON”. b) in view of the misbehavior on the part of Sri M.A.Waheed, Work Inspector,15% cut is imposed from pension of the party as a punishment as per Rules 9 & 15 of the C.C.A. Rules, 1991.” The aforesaid order was questioned by the respondent in O.A.No. 2476 of 2001 and the punishment imposed in the aforesaid order only to the extent of sub-clause (b) was questioned in O.A.No. 4556 of 2004, as extracted above. The Tribunal considered both the O.As., on merits and concluded that the action of the officials (petitioners herein) to the extent of punishing the applicant by inflicting 15% cut in the pension, cannot be faulted. The Tribunal, however, interfered with the sub- clause (b) to the extent of treating the period as dies-non as per the impugned order, on the ground that the respondent had reported for duty on 12.06.1981 and there was protracted correspondence between the Chief Engineer, Executive Engineer, Superintending Engineer and the Government and ultimately, only under the Government memo dated 16.05.1992, that he was directed to be taken on duty subject to disciplinary proceedings. The Tribunal, therefore, was of the opinion that his period of absence from 11.06.1981 to 15.05.1992 i.e. excluding the period on which he reported to duty and ultimately when the Government passed orders on 16.05.1992, has to be treated as the period on compulsory wait, inasmuch as the respondent was waiting for the posting orders in accordance with the provisions of the Fundamental Rules. The Tribunal, therefore, distinguished between the period of absence in two stages, as follows: Sofar as absence from 29.07.1977 to 11.06.1981 is concerned, the same was proved as unauthorized absence, for which the punishment of 15% cut in pension imposed by the disciplinary authority was not interfered. However, the period from 12.06.1981 to 15.05.1992 was treated as the period on compulsory wait and the impugned order was set aside to that extent and to the extent of treating the said period as dies-non. The Tribunal, therefore, disposed of both the O.As. with a direction to the officials i.e. the petitioners herein to treat the period from 01.06.1981 to 15.05.1992 as compulsory wait for posting and the remaining period as dies-non. The petitioners herein were directed to revise the pensionary benefits in accordance with the afore said modifications and pay the same. It is the aforesaid order which has been in question by the State in these two Writ Petitions. We have heard the leaned Government Pleader for Services-II for the writ petitioners and Sri Mohd. Yousufuddin, learned counsel for the respondent in both the Writ Petitions. The learned Government Pleader contended that the order of disciplinary authority concluding that the charges were proved was not interfered with by the Tribunal and the respondent also has not questioned the order of the Tribunal to that extent. The only question that survives for consideration and required to be adjudicated is as to whether the Tribunal was justified in treating part of the period of absence as compulsory wait. The learned counsel for the respondent submitted that the respondent has reported to duty on 12.06.1981 along with a medical certificate and it is the Deputy Executive Engineer, Superintending Engineer and the Chief Engineer who have not allowed him to join. If they had allowed the respondent to join the duty from that date, it would not have been counted as either unauthorized absence and in any case not as dies-non. The learned counsel would, therefore, support the impugned order, which has distinguished the said period as compulsory wait and the respondent being a pensioner and in advance stage now, he is entitled to the benefits of the said order. We have considered the aforesaid contentions. In our view, the Tribunal has lost sight of the fact that the respondent worked only as a Work-charged employee, who can not be treated as a Government servant, until he gets converted as such, in terms of G.O.Ms.No. 130, Irrigation & CAD Department, dated 18.03.1981. Under the aforesaid G.O., the Government had formulated a scheme for treating such of the work-charged employees, who have completed ten years of service, as Government employees subject to the option exercised by them within the time prescribed under the said G.O. The memo issued by the Government, dated 02.05.1992,based on which, the respondent was allowed to join duty itself states that the Government had agreed to accept the option of the respondent under G.O.Ms.No. 130, dated 18.03.1981 by converting him to a Government servant from the work- charged employees status. It is also to be noticed that the aforesaid scheme of the Government under G.O.Ms.No. 130, dated 18.03.1981 was issued so as to enable the work-charged employees, who have completed ten years of service, to acquire the status as Government employees. When the said G.O. was issued, the respondent was within the unauthorized absence period and he came to report to duty only on 12.06.1981 i.e. three months after the said G.O. was issued. Obviously, there was no occasion to the respondent to give his option for conversion from work-charged to Government service in terms of the said G.O. The memo aforesaid also mentions in paragraph 3(1), as under: “ The party has since submitted his option to become Government servant and this is not within the time limit as per the G.O.Ms.No. 130 Irrigation Department, dated 18.01.1981. This requires the approval of the Government.” It is based on the above option of the respondent that the Government agreed to take him back by accepting the option and treating him as Government servant and subjecting him to the disciplinary proceedings. Thus, the respondent became the Government servant for the first time only after the aforesaid Government memo dated 02.05.1992 was issued. Any period prior to the said Government memo, therefore, cannot be equated to the period where the Government servant is under leave. The Tribunal also committed error in thinking that the respondent’s case is to be treated as ‘compulsory wait’ in view of the fact that he reported to duty on 12.06.1981. It is however to be remembered that he was absent right from 01.03.1977 and for the first time, he reported on 12.06.1981 after a long gap. The officials, therefore, were not empowered to permit him to admit to duty until the Government approved and accepted to take him back as the period of absence was five years or more. Irrespective of the fact that once it is found that the respondent was not a Government employee and was only a work-charged employee on the date of reporting i.e.12.06.1981, it is not available for him to contend that he was on compulsory wait. The treatment of the respondent as if he is a Government employee on the date of reporting, as wrongly assumed by the Tribunal, therefore, deserves to be interfered with. Though several submissions were made by the learned Government Pleader reflecting on the photo copy of the medical certificate submitted by the respondent and the doubtful nature of the said claim and the conduct of the respondent in avoiding the examination by the Medical Board is concerned, we feel that it is not necessary to deal with those aspects inasmuch as the learned counsel for the respondent has not questioned the order of the Tribunal impugned herein to the extent of upholding the disciplinary proceedings and the penalty of 15% cut and the findings recorded by the Enquiry Officer. The respondent, therefore, only seeks to justify the direction with regard to treating the period aforesaid from dies-non to compulsory wait. As mentioned above, since we are of the view that the Tribunal has committed error in treating the said period as not dies-non and as compulsory wait, the impugned order deserves to be interfered with and the writ petitions accordingly deserve to be allowed. Consequently, the Writ Petitions are allowed. The impugned order of the Tribunal to the extent of treating period of dies-non as compulsory wait, stands set aside and both the O.A.Nos. 2476 of 2001 and 4556 of 2004 stand dismissed. No costs. ------------------------- (V. ESWARAIAH, J) ----------------------------------- (VILAS V. AFZUL PURKAR,J) 3rd February 2010 ksld