whether the applicant is entitled for treatment of suspension period as duty. = 1st respondent was involved in a criminal case in Cr.No.50 of 2009 under Sections 498A, 384, 323, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act r/w Section 3 of Cr.P.C. before the Judicial Magistrate of First Class, Adoni. Basing on the report of SI of Police, Adoni, Town Police Station III, the DEO, Kurnool placed him under suspension w.e.f. 29.05.2009 under Rule 8(1) of APCS (CCA) Rules. Then, the applicant approached the Tribunal and filed O.A.No.8065 of 2011 seeking to suspend the proceedings of DEO. = the competent authority shall, in terms of FR 54-B (3), form an opinion as to whether the suspension of the 1st respondent was wholly unjustified or not. Unfortunately, such an order, on merits, was not passed. On the other hand, the 4th petitioner in his proceedings in R.C.No.4060/C10/09 dated 25.09.2014, rejected the request of the 1st respondent to treat the suspension period as on duty in terms of FR 54(5) on the ground that the 1st respondent was involved in a private criminal case for dowry harassment for which the department was not responsible and during the period of suspension, the applicant has not attended any official work for regularizing the suspension period as on duty. However, as stated earlier, the 4th petitioner has not discussed in the order as to whether or not his suspension on account of 1st respondents involvement in a private case which has nothing to do with his discharging of public duties, was wholly justified or unjustified. = direction to the 4th petitioner to pass a reasoned order on merits in terms of FR 54-B (3) of A.P. Fundamental Rules stating whether or not the suspension of 1st respondent was wholly unjustified within four (4) weeks from the date of receipt of copy of this order. However, such an order shall be passed after giving an opportunity to the 1st respondent to make a submission as to how his suspension was wholly unjustified. We make it clear that the order to be passed by the 4th petitioner is subject to the result of departmental enquiry, if any. No costs.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                     

Writ Petition No.16817 of 2015

05-12-2017

The State of Andhra Pradesh, Rep. by its Principal Secretary, School Education Department, Secretariat, Hyderabad.and 4 othe
D.Rajakullayappaand another. . Respondents 

!Counsel for Petitioners : Government Pleader for Services-I(AP)

^Counsel for Respondent No.1: Sri A. Surya Rao.

<Gist:

>Head Note:

? Cases referred:
1) (2009) 11 SCC 683
2) (2011) 8 SCC 155


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT         
AND 
THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO         

Writ Petition No.16817 of 2015

ORDER: (Per Honble Sri Justice U.Durga Prasad Rao) 
        The challenge in this writ petition at the instance of petitioners, is
the order dated 11.03.2014 in O.A.No.5778 of 2012 passed by learned
Andhra Pradesh Administrative Tribunal, Hyderabad (for short the
Tribunal) whereby and whereunder the Tribunal allowed the O.A.
directing the respondents to treat the period of suspension of the
applicant from 29.05.2009 to 02.11.2011 as on duty with all
consequential benefits and also release the increments by passing
necessary orders within six weeks from the date of the order.
2)      While ordering notice before admission, this Court granted
interim stay of all further proceedings in C.A.No.1432 of 2014.
3)      The 1st respondent herein filed O.A.No.5778 of 2012. His case is
that he has been working as Telugu Pandit GradeII. He received
suspension orders from the 4th and 5th respondents/petitioner Nos.4
and 5 herein on the ground he was involved in a criminal case.
Immediately he approached higher authorities by way of appeal but in
vain. Thereafter, he filed O.A.No.8065 of 2011. The Tribunal vide its
order dated 29.09.2011 allowed the said OA by setting aside the
suspension order dated 20.08.2009 and directed the respondents to
reinstate him into service. Pursuant to the said direction, the 4th
respondent reinstated him into service by his order dated 31.10.2011.
However, the respondent authorities have not taken any action for
payment of salary for the suspension period i.e. from 29.05.2009 to
02.11.2011 and his representation dated 08.06.2012 did not yield any
fruitful result. Therefore, he filed O.A.No.5778 of 2012 seeking a
direction to the respondents to treat his suspension period i.e. from
29.05.2009 to 02.11.2011 as on duty and regulate his pay and
allowances. The Tribunal allowed the said O.A. following the orders
passed in O.A.No.6622 of 2012 dated 05.02.2013 and directed the
respondents to treat the period of suspension as on duty with all
consequential benefits.
4)      Aggrieved, the petitioners filed the present writ petition
contending that 1st respondent was involved in a criminal case in
Cr.No.50 of 2009 under Sections 498A, 384, 323, 506 IPC and 
Sections 3 and 4 of Dowry Prohibition Act r/w Section 3 of Cr.P.C.
before the Judicial Magistrate of First Class, Adoni.  Basing on the
report of SI of Police, Adoni, Town Police Station III, the DEO,
Kurnool placed him under suspension w.e.f. 29.05.2009 under Rule
8(1) of APCS (CCA) Rules. Then, the applicant approached the 
Tribunal and filed O.A.No.8065 of 2011 seeking to suspend the
proceedings of DEO. The Tribunal vide its order dated 29.09.2011
allowed the OA. Pursuant to the same, the DEO, Kurnool reinstated
him into service. Whileso, the 1st respondent/applicant made an
application for payment of salary for the suspension period and he
also filed O.A.No.5778 of 2012 seeking a direction to the respondents
to consider his representation dated 08.06.2012 for release of salary
for the suspension period. The Tribunal without proper appreciation of
facts allowed the O.A. and in view of provision under FR 54 (5) of
A.P. Fundamental Rules and as per Government Memo No.   
2801/PE.Vig.I (2)/2010 dated 19.11.2010 the applicant is not entitled
for treatment of suspension period as duty.
5)      Heard arguments of learned Government Pleader for Services-I
(AP) and Sri A.Surya Rao, learned counsel for 1st respondent.
6)      Learned Government Pleader would argue that the Tribunal
allowed O.A.No.5778/2012 on the observation that the said O.A is
covered by the orders earlier passed by the Tribunal in
O.A.No.6622/2012 dated 05.02.2013. No doubt, O.A.No.6622/2012 
which was factually similar to the present O.A, was allowed by the
Tribunal following the ratio laid down in O.A.No.1891/2007 and
batch. The ratio in the said batch was to the effect that when the
applicant was suspended for involvement in the criminal case and
when the criminal case was ended in acquittal, he is entitled for
treatment of period of absence as on duty and also entitled for full pay
and allowance. However, against the order in O.A.No.6622/2012, the
Government have filed W.P.No.32849/2013 and the said Wirt Petition
was allowed by a Division Bench of this Court on 04.02.2014 by
setting aside the order in O.A.No.6622/2012. Therefore, the order in
O.A.No.5778/2012 dated 11.03.2014 relying upon the ratio in
O.A.No.6622/2012 is untenable.
7)      Per contra, learned counsel for 1st respondent would argue that
since the criminal case filed under Section 498-A IPC against the 1st
respondent was ended in compromise before the Lok Adalat, his
suspension period shall be treated as on duty and he will be entitled to
all the service benefits.  He placed reliance on the decision reported in
Sharada Singh vs. State of U.P and others .
8)      The point for determination is:
        Whether there are merits in the Writ Petition to allow?
9)      POINT: Admittedly, the 1st respondent is working as Telugu
Pandit Gr.II, MPUP School, Yapadinne village, Dhone Mandal,
Kurnool district.  Following a criminal case i.e, CC No.706/2009 filed
by his wife under Section 498-A, 323, 506 IPC, he was remanded to
judicial custody from 29.05.2009 to 02.06.2009 and because of his
arrest, he was placed under suspension w.e.f. 29.05.2009.  The 1st
respondent was acquitted of the said criminal case due to settlement
before the Lok Adalat on 24.09.2011. Earlier, the 1st respondent filed
O.A.No.8065/2011 challenging his suspension. The said O.A was 
allowed on 29.05.2011 with a direction to the respondents to reinstate
him into the service. Thereafter, he was reinstated into service. Later
he filed O.A.No.5778/2012 since the authorities have not treated his
suspension period as on duty.  The said O.A. was allowed on
11.03.2014 following the ratio in O.A.No.6622/2012.
10)     Now the contention of learned Government Pleader is that the
order in O.A.No.6622/2012 was since set aside in Writ Petition
No.32849/2013, the Tribunal ought not to have relied upon
O.A.No.6622/2012. A perusal of the order dated 04.02.2014 in
W.P.No.32849/2013 would show that the Division Bench of this
Court observed that FR 54-B(3) but not FR 54(2) of Andhra Pradesh
Fundamental Rules would apply, as per which, where the authority
competent to order reinstatement is of the opinion that the suspension
was wholly unjustified, the Government servant shall, subject to the
provisions of sub-rule (8), be paid the full pay and allowances. The
D.B further observed, however, there was no material to show that
suspension was wholly unjustified and therefore, the Tribunal ought
not to have interfered with the order of the competent authority. The
Division Bench ultimately allowed the Writ Petition by setting aside
the order impugned in O.A.No.6622/2012. Since the order in
O.A.No.5778/2012 was subsequent to the order in W.P.No.32849 of 
2013, the ratio in O.A.No.6622/2012 was no more available to the
Tribunal. It appears, the D.B order was not placed before the Tribunal
while passing the order in O.A.No.5778/2012. Therefore, the
impugned order in O.A.No.5778/2012 is not maintainable.
11)     Be that as it may, we consider it apposite to verify whether
petitioners refusal to consider the period of suspension as on duty and
non-payment of pay and allowances, which is the grievance of the 1st
respondent/applicant in O.A.No.5778/2012, is legally valid or not.
The 4th petitioner in his proceedings in R.C.No.4060/C10/09 dated
25.09.2014, rejected the representation of the 1st respondent to treat
his suspension period as on duty in the light of FR 54(5) of A.P
Fundamental Rules. We are afraid, it is FR 54-B which is applicable
to the instant case but not FR 54 or 54-A.  It must be noted that the
three rules i.e. FRs 54, 54-A, 54-B govern the following three
different situations:
(1)     where reinstatement takes place consequent on the setting
aside of dismissal or removal or compulsory retirement
by the Government itself in appeal or review (FR 54);
(2)     where reinstatement takes pace as a consequence of the
dismissal or removal or compulsory retirement being set
aside by a Court of Law  (FR 54-A); and
(3)     where a suspended employee (who has not been dismissed, 
removed or compulsorily retired) has been reinstated to
duty (FR 54-B).
     In the instant case, admittedly suspension was revoked and 1st
respondent was reinstated into service as per the order dated
29.09.2011 in O.A.No.8065 of 2011. Then regarding the treatment of
his absence period, the competent authority shall consider his case in
terms of FR 54-B but not FR 54.  FR 54-B reads thus:
FR 54-B: (1) When a Government servant who has been 
suspended is reinstated or would have been so reinstated but for
his retirement while under suspension; the authority competent
to order reinstatement shall consider and make specific order
(a) regarding the pay and allowances to be paid to the
Government servant for the period of suspension ending
with reinstatement or the date of his retirement on
superannuation, as the case may be; and
(b) whether or not the said period shall be treated as a
period spent on duty.
(2)     Notwithstanding anything contained in rule 53, where a
Government servant under suspension dies before the
disciplinary or court proceedings instituted against him are
concluded, the  period between the date of suspension and the
date of death shall be treated as duty for all purposes and his
family shall be paid the full pay and allowances for that period
to which he would have been entitled had he not been suspended,
subject to adjustment in respect of subsistence allowance
already paid.
(3)     Where the authority competent to order reinstatement is
of the opinion that the suspension was wholly unjustified, the
Government servant shall subject to the provisions of sub rule
(8), be paid the full pay and allowances to which he would have
been entitled had he not been suspended:
          Provided that where such authority is of the opinion that
the termination of the proceedings instituted against the
Government servant had been delayed due to reason directly
attributable to the  Government servant, it may, after giving him
an opportunity to make  his representation [within 60 days from
the date on which the communication in this regard is served in
him] and after considering the representation, if any, submitted
by him direct, for reasons to be recorded in writing that the
Government servant shall be paid for the period of such delay
only such [amount (not being the whole)] of such pay and
allowances as it may determine.
(4) xx xx
(5) xx xx
(6) xx xx
(7) xx xx
(8) xx xx
(9) xx xx
     Interpreting FR 54-B (3), the Apex Court in Greater
Hyderabad Municipal Corporation v. M.Prabhakar Rao , observed
thus:
Para 15: Sub-rule (3) of FR 54-B does not state that in case of
acquittal in criminal proceedings the employee is entitled to his
salary and allowances for the period of suspension. Sub-rule (3)
of FR 54-B also does not state that in such case of acquittal the
employee would be entitled to his salary and allowances for the
period of suspension unless the charge of misconduct against
him is proved in the disciplinary proceedings. Sub-rule (3) of FR
54-B vests power in the competent authority to order that the
employee will be paid the full pay and allowances for the period
of suspension if it is of the opinion that the suspension of the
employee was wholly unjustified. Hence, even where the
employee is acquitted of the charges in the criminal trial for lack
of evidence or otherwise, it is for the competent authority to form
its opinion whether the suspension of the employee was wholly
unjustified and so long as such opinion of the competent
authority was a possible view in the facts and circumstances of
the case and on the materials before it, such opinion of the
competent authority would not be interfered with by the Tribunal
or the Court.
12)     In view of the above ratio, the competent authority shall, in
terms of FR 54-B (3), form an opinion as to whether the suspension of
the 1st respondent was wholly unjustified or not. Unfortunately, such
an order, on merits, was not passed. On the other hand, the 4th
petitioner in his proceedings in R.C.No.4060/C10/09 dated
25.09.2014, rejected the request of the 1st respondent to treat the
suspension period as on duty in terms of FR 54(5) on the ground that
the 1st respondent was involved in a private criminal case for dowry
harassment for which the department was not responsible and during
the period of suspension, the applicant has not attended any official
work for regularizing the suspension period as on duty. However, as
stated earlier, the 4th petitioner has not discussed in the order as to
whether or not his suspension on account of 1st respondents
involvement in a private case which has nothing to do with his
discharging of public duties, was wholly justified or unjustified. In
that view, the order of the 4th petitioner is not maintainable in the light
of ratio in M.Prabhakar Raos case (2 supra). Consequently, the
decision in Sharada Singhs case (1 supra) has no application.
Therefore, we consider it apposite to direct the 4th petitioner to pass an
appropriate order on merits.
13)     In the result, this Writ Petition is allowed by setting aside the
order dated 11.03.2014 in O.A.No.5778 of 2012 with a direction to
the 4th petitioner to pass a reasoned order on merits in terms of
FR 54-B (3) of A.P. Fundamental Rules stating whether or not the
suspension of 1st respondent was wholly unjustified within four (4)
weeks from the date of receipt of copy of this order. However, such an
order shall be passed after giving an opportunity to the 1st respondent
to make a submission as to how his suspension was wholly  
unjustified. We make it clear that the order to be passed by the 4th
petitioner is subject to the result of departmental enquiry, if any.  No
costs.
        As a sequel, miscellaneous petitions, if any pending, shall stand
closed.
_______________________   
SURESH KUMAR KAIT, J   
_________________________   
U.DURGA PRASAD RAO, J     
Dt:  05.12.2017