HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 1486 OF 2011 Between: The Government of Andhra Pradesh represented by its Principal Secretary, Social Welfare Department A.P. Secretariat, Hyderabad and two others. ………….Petitioners AND Ch. Siva Rami Reddy S/o Yedupulaiah age 53 years and one another ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Certiorari calling for the records relating to and connected with the orders dated 15.12.2010 passed in O.A.No. 7401 of 2010 on the file of Andhra Pradesh Administrative Tribunal, Hyderabad and quash the same as illegal. First respondent herein is the applicant in O.A.No. 7401 of 2010. He filed the O.A under Section 19 of the Administrative Tribunal Act, 1985 seeking to quash the impugned proceedings dated 28.9.2010 issued by the District Collector, Prakasham District- third respondent herein. That O.A was allowed with the following observation. “5. The report of the Vigilance and Enforcement Department which is the basis for keeping the applicant under suspension, is filed by the respondents. It shows that 26 quintals of rice was allotted to S.W Boys Hostel, Karinigi-II and the actual rice delivered to Hostel 8.5 quintals and the difference was 17.5 quintals. There is no documentary evidence to show that the applicant was aware of allotment of 26 quintals to the said Hostel. There is no documentary and circumstantial evidence on record to show that he colluded with the officials of MLS point and responsible for the diversion of rice allotted to the Hostel. It is a subject matter of further enquiry. 6. The next misconduct pointed out in the report of the Vigilance and Enforcement Department is that as per the Attendance Register, attendance was marked for 60 students, but actually 7 students were present at the time of visit by the Vigilance officials. This matter is to be further enquired into only after submission of explanation of the applicant. Added to that, when the incident relates to the year 2008, initiating action in the year 2010 shows highly belated action on the part of the respondents. In similar circumstances, this Tribunal allowed O.A.No. 6789/2010 and batch and set aside the orders of suspension for the above reasons. 7. Therefore, this O.A, is also allowed and impugned orders of suspension are set aside and the applicant shall be reinstated into duty within three days from the date of receipt of a copy of this order. No order as to costs.” Brief facts of the case are that the first respondent-applicant was appointed as Hostel Welfare Officer of Government S.W Boys Hostel, Kanigiri-II, Prakasham District. While so, he was kept under suspension by the third respondent-District Collector, Ongole, Prakasam District vide proceedings dated 28.9.2010 as per the report of the Vigilance and Enforcement Department, dated 29.12.2008 on the ground of misconduct. Aggrieved by the same, the applicant filed O.A and the same was allowed. Aggrieved by the same, the Government preferred the present Writ Petition. The learned Government Pleader for Services-II submits that the Tribunal has mechanically allowed the O.A solely on the ground that there is no documentary evidence to show that the first respondent-applicant was aware of allotment of 26 quintals to the Hostel and there is no documentary and circumstantial evidence on record to show that he colluded with the officials of MLS point and responsible for the diversion of rice allotted to the Hostel. He also submits that the Tribunal has not taken into consideration the fact that the first respondent is responsible for showing the account of 17.5 quintals of rice out of 26 quintals of rice as he actually delivered only 8.5 quintals to the Hostel, therefore, the order of the Tribunal is bad under law. On the other hand, the learned counsel appearing for the first respondent submits that the Tribunal has passed a well-reasoned order and there are no grounds to interfere with the order. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, the first respondent- applicant is a Hostel Welfare Officer of Government S.W Boys Hostel, Kanigiri-II, Prakasham District and on the report dated 29.12.2008 of the Vigilance and Enforcement Department, he was kept under suspension by the third respondent-District Collector, Prakasam District. Rule 8 of CCA & conduct Rules describes the suspension with retrospective effect, which reads as under: “8. Suspension with retrospective effect:- A member of the service cannot be suspended with retrospective effect. If a person is actually in service for a period or is entitled to be in service during the period, it would be a contradiction in terms to suspend him. He could not for the same period, be in service and not be in service at the same time, or be entitled to serve as well as not entitled to serve simultaneously. Therefore, even in cases where an order of suspension is set aside by the Court, it means that for the relevant period the Court has decided that the employee is entitled to serve. By a later order it is no longer open to suspend him for the very same period during which the Court had declared that he was entitled to serve. Therefore, when an order of suspension is made retrospectively, the retrospective part cannot be given effect to. It is not that the Court dealing with such a matter must necessarily pass a new order. It is open to it to declare that the order made has an infirmity with regard to the retrospective part but that the prospective part is perfectly valid and should operate upon its own strength. Sackarni vs. Commissioner of Police, AIR 1965, Cal 13.” The learned Government Pleader for Services-II submits that in this particular case, a charge memo was issued against the first respondent on 30th December 2010 and an enquiry officer is also appointed and the enquiry is still in progress. Be that as it may, the Tribunal has committed a serious error in exceeding its limit directing that the applicant in OA shall be reinstated into service within three days from the date of receipt of a copy of the order. It is the domain of the authority whether to place the employee under suspension or not having regard to the gravity of the charge. Accordingly, the Writ Petition is allowed and the order passed by the Tribunal is set aside. Petitioners herein are directed to complete and conclude the enquiry within a period of three months from the date of receipt of a copy of this order and pass appropriate orders in accordance with law after affording an opportunity to the first respondent. Failing which, the first respondent-applicant should be reinstated into service by recalling the suspension order. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J ____________________ K. G.SHANKAR , J DATE: 31.1.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.