THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Writ Petition No.23674 of 2011 Date: 23.08.2011 Between: S. Johan Wesley .. Petitioner AND The Govt. of A.P., Rep.by its Secretary, Finance (Admn-II) Dept., Secretarait, Hyderabad, and 2 others .. Respondents THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G. SHANKAR Writ Petition No.23674 of 2011 ORDER: (per Hon’ble Sri Justice K.G. Shankar) The petitioner seeks for a Writ of Certiorari to set aside the orders dated 22.11.2010 passed by the Andhra Pradesh Administrative Tribunal (‘the Tribunal’, for short) in O.A.No.3467 of 2008 and to treat the period of suspension from 20.05.1995 till 17.04.1999 and from 30.08.2000 to 07.06.2001 as duty period for all purposes. 2. The writ petitioner was working as Senior Accountant in the Treasures and Accounts Department. The third respondent is his immediate superior. The petitioner was involving in a criminal case for the offences under Sections 498-A and 494 of the Indian Penal Code (IPC) as well as u/Ss.4 and 6 of the Dowry Prohibition Act, in view of the complaint lodged by his wife. On 20.07.1995 the petitioner was arrested on the basis of the complaint lodged by his wife. He was enlarged on bail on 24.07.1995. The petitioner, however, was on leave for 12 days from 15.07.1995 till 26.07.1995. His arrest and subsequent enlargement on bail were during that period only. 3. Subsequently, police filed a case against the petitioner in C.C.No.935 of 1995 on the file of the XXII Metropolitan Magistrate, Hyderabad. While the petitioner was acquitted in respect of the offences u/s.498-A IPC as well as u/Ss.4 and 6 of the Dowry Prohibition Act, the petitioner was convicted for the offence u/s.494 IPC and was sentenced to Rigorous Imprisonment (R.I.) for a period of three years and fine of Rs.2,000/- with appropriate default sentence, through judgment dated 22.01.2000. The petitioner assailed the judgment of the conviction in C.C.No.935 of 1995, through Criminal Appeal No.55 of 2000 on the file of the II Additional Metropolitan Sessions Judge, Hyderabad. The appeal was allowed, through the judgment dated 28.02.2001. The conviction, consequently, was set aside. 4. However, subsequent to the judgment of the trial Court on 22.01.2000 and the judgment of the appellate Court on 28.02.2001, the third respondent issued a charge memo on 30.08.2000 to the petitioner under the provision of Rule 25 (1) of Andhra Pradesh Civil Services (Conduct) Rules. The third petitioner offered explanation to the charge memo. The third respondent, however, issued proceedings on 26.04.2002 imposing penalty of withholding of two annual increments with cumulative effect with effect from 01.06.2001. The Administrative Appeal preferred by the petitioner before the second respondent was rejected. The petitioner thereafter preferred OA 7802 of 2002 before the Tribunal. He was unsuccessful before the Tribunal in the orders of the Tribunal dated 11.10.2004. 5. The petitioner submitted an appeal to the first respondent on 20.12.2004 requesting to treat the period of suspension as on duty. The appeal was rejected by the first respondent on 29.07.2005. During the pendency of the appeal to the first respondent, the petitioner was selected as a Senior Accountant and was posted in the office of the District Medical and Health Services. The memo dated 29.07.2005 refusing to consider the appeal of the petitioner came to the knowledge of the petitioner in December 2005 (according to the petitioner). 6. The grievance of the petitioner is that he did not commit any misconduct or lapses and that imposition of penalty of withholding two annual increments with cumulative effect is unjust. So far as the present OA is concerned, he seeks for an order to treat the period of suspension between 20.05.2005 to 17.04.1999 and from 30.08.2000 to 07.06.2001 as period on duty so that he would get proper pensionery and other service benefits. 7. It is the case of the third respondent that the petitioner deliberately suppressed the fact that he was arrested and was in judicial custody for a period of five days from 20.07.1995 till 24.07.1995 and that the petitioner thus committed misconduct and that the suspension period, therefore, does not deserve to be regularized. The learned Government Pleader further contended that the petitioner never cooperated with the enquiry, so much so, there was a delay in the completion of the enquiry. 8. The learned counsel for the petitioner, on the other hand, contended that there was no misconduct on his part and that the petitioner did not suppress any facts from the notice of his employer. By coincidence, the petitioner was arrested and was enlarged on bail during the period in which the petitioner was on leave. The petitioner, consequently, need not report the arrest to the employer, as he was already on leave at that time. 9. It may be noticed that the petitioner sought for setting aside of the proceedings of the second respondent dated 26.04.2002, through OA 7802 of 2002 before the Tribunal. He was questioning the order of the second respondent in rejecting the appeal through orders dated 26.04.2002 and 09.08.2002. The Tribunal considered that the second respondent was justified in rejecting the appeal and dismissed OA 7802 of 2002. 10. The petitioner, thereafter, preferred W.P. No.12577 of 2002 seeking a Writ of Certiorari against the orders of the Tribunal in OA 7802 of 2002. A Division Bench of this Court dismissed the writ petition. The petitioner has now come forward with the present writ petition. 11. Now, the petitioner seeks for treating the period of suspension as on duty. The Tribunal considered that the petitioner did not commit any misconduct in not bringing to the notice of the employer about his arrest and detention, since the incident occurred while the petitioner was on leave. It is not as though the petitioner applied leave for the period of his arrest and detention. The petitioner applied for leave. Subsequently, he was arrested and detained. He was, later, enlarged on bail. Only thereafter the leave expired. Consequently, the Tribunal considered that the period of suspension deserves to be treated as on leave. Accordingly, the orders were passed allowing the application in part. The period of absence from duty on account of suspension was treated as period on duty. 12. Rule 54 of the Fundamental Rules contemplates that when a Government Servant, who had been dismissed, removed or compulsorily retired from service is reinstated as a result of an appeal or review, the authority competent to order reinstatement is entitled to pass order regarding pay and allowance payable to such Government Servant during the period of absence from duty (including the period of suspension proceeding the dismissal, removal or compulsory retirement). The Fundamental Rule 54 empowers the competent authority to determine whether such period should be treated as period on duty or otherwise. It is the duty of the competent authority to determine whether the period of suspension of the petitioner herein should be treated as duty period and if so, whether to treat the same as duty period for all purposes or for any specified purpose. The Tribunal considered that it would be just and proper to treat the period of suspension for two spells as period on duty for the purpose of release of increment, for the purpose of seniority and for the purpose of pensionery benefits. The Tribunal, however, considered that it would not be appropriate to hold that the petitioner was entitled to salary for the period of suspension except for the subsistence allowance, which the petitioner apparently had already drawn. 13. There is no reason to interfere with the order of the Tribunal. The order of the Tribunal is judicious, reasonable and is on merits. We, therefore, decline to interfere with the order of the Tribunal, which treated the period of absence as duty period for the purpose of increments, seniority and pensionary benefits, but not treating the same for the purpose of arrears of salary. Accordingly, we see no merits in this writ petition. 14. The writ petition is, therefore, dismissed. No costs. _______________ (V.V.S.RAO, J) ___________________ (K.G. SHANKAR, J) 23.08.2011 Isn