THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 27468 OF 2007 Date:13.02.2008 Between: The Superintendent of Police, Medak district at Sanga Reddy & 3 others …Petitioners and M.Ravi …Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 27468 of 2007 ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Writ Petition is filed challenging the Order, dated 20.07.2007 in O.A. No.632 of 2007 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, ‘the Tribunal’). 2. The brief facts that are necessary for disposal of this Writ Petition may be stated as follows: While the respondent herein was working as Police Constable, a case in crime no. 102 of 1996 was registered against him for the offence under Section 498A read with 306 I.P.C. Consequently, the first petitioner suspended him by order dated 07/11.06.1996. A regular departmental enquiry was conducted against the respondent, and the enquiry officer submitted a report, which has been accepted. Basing on the report of the enquiry officer, the first petitioner removed the respondent from service vide proceedings dated 14.5.2001, and the period of suspension from 10.5.1996 to 05.10.1998 was treated as ‘not on duty’. The appeal and revision filed by the charged officer were dismissed. But, considering the mercy petition made by the respondent, Government issued G.O.Ms. No.314, Home (Services-II) Department, dated 19.10.2002, directing to reinstate the respondent into service and that the out of employment period of the individual shall be treated as ‘on duty’ for all purposes under F.R. 54(2). Thereafter, the respondent preferred a mercy petitions twice before the Government to treat the period of suspension as spent on duty and the same were rejected on 23.3.2004 and 18.02.2005, 3. Thereafter, the respondent herein filed O.A. No.632 of 2007 before the Tribunal for a direction to treat the period of suspension from 10.5.1996 to 5.10.1998 as ‘on duty’ for all purposes under F.R. 54(2). By the impugned order, the Tribunal disposed of the O.A. directing the petitioners herein to reconsider the claim of the respondent herein for treating the period of suspension as ‘on duty’. Challenging the same, the present Writ Petition is filed by the Government. 4. Now, the point for consideration in this Writ Petition is whether the claim of the respondent has to reconsidered for treating the period of suspension as ‘on duty’ ? 5. Admittedly, the disciplinary authority removed the respondent from service after conducting a regular departmental enquiry. Aggrieved by the same, the respondent preferred appeal before the second petitioner, but the same was dismissed affirming the order of the disciplinary authority. The revision filed before the third petitioner was also rejected. Thereafter, the respondent preferred a mercy petition before the Government. By virtue of G.O. Ms. No.314, dated 19.10.2002, the respondent was directed to be reinstated into service and the out of employment period of the respondent was also directed to be treated as ‘on duty’. The respondent filed two mercy petitions to treat the suspension period as ‘on duty’, but both the petitions were rejected by the competent authorities. 6. The Tribunal relying upon decision in Barium Chemicals Ltd. V. Company Law Board (AIR 1967 SC 295) and also on the ground that the Government did not take into consideration the acquittal of the respondent on merits by the criminal Court, disposed of the O.A. by the impugned order, with the aforesaid direction. The Government, after taking note of the fact that the respondent was acquitted in the criminal case, ordered for his reinstatement 7. As a matter of fact, all the remedies available to the respondent, under law, were exhausted. So, it is not known under what authority the Government issued the G.O. Ms. No.314, dated 19.10.2002 ordering reinstatement of the respondent. Though the order is not traceable to any Rule, still the Government had shown mercy on the respondent and ordered for his reinstatement. That apart, Government has given a bounty to the respondent ordering that the out of employment period shall be treated as on duty for all purposes under F.R. 54. The respondent ought to have satisfied with the mercy order passed by the Government. But, instead, he filed O.A. No. 632 of 2007 to treat the suspension period as on duty. As already stated, all the remedies available to the respondent are exhausted. Therefore, the Tribunal ought not to have entertained the O.A. itself after lapse of 5 years. 8. Even on limitation aspect also, under Rule 21(1)(a) of the Administrative Tribunals Act, 1985, Tribunal shall not admit an application unless it is made within one year from the date on which such final order has been made. G.O. Ms. No.314 was passed by the Government on 19.10.2002. Consequential order reinstating the respondent into service was passed by the first petitioner on 19.11.2002. Under Rule 20(1)(a) of the Act, the respondent should have approached the Tribunal within one year therefrom. But, the O.A. is filed in the year 2007. No petition is filed to condone the delay, as the same was filed beyond the period prescribed under the Act. Admittedly, there was no infringement, or breach, or dereliction, of any right whatsoever, of the respondent, and so, question of consideration of such a non- existing right does not arise. 9. The finding of the disciplinary authority dated 15.5.2001 treating the period of suspension spent by the charged constable from 10.05.1996 to 05.10.1998, as ‘not on duty’, was confirmed in the appeal and also in the statutory revision. When the appeal filed against an order of termination was dismissed and further the statutory revision was also rejected, it is not known how the Government entertained the mercy petition. Especially, when no challenge has been made in respect of the order passed by the disciplinary authority, as confirmed in appeal and also revision, the same cannot be reopened except in accordance with law. Therefore, the Government itself ought not to have entertained the mercy petition and issued the G.O. In the circumstances, the O.A. itself is totally misconceived and unjustified. These aspects have not been taken into consideration by the Tribunal, and the Tribunal exceeded its jurisdiction in granting the relief which has not been in existence in view of the orders passed by the disciplinary authority, as confirmed in appeal and revision. 10. The Writ Petition is, accordingly, allowed setting aside the order, dated 20.07.2007, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, in O.A. No.632 of 2007. ---------------------------- JUSTICE D.S.R.VARMA --------------------------- JUSTICE K.C.BHANU 13.02.2008 DRK