whether the Court at Hyderabad did not have the territorial jurisdiction to entertain the suit. = Thus, the defendants admitted the payments were made at Hyderabad. The witness examined on behalf of the defendants as DW.1 is the partner of the first defendant firm. On 31.07.1998 during the course of his cross- examination, he clearly admits that he used to make payments to the plaintiff at Hyderabad office and also correspondence was with Hyderabad office. In addition, the correspondence clearly shows that the issues relating to the suit transaction alone were discussed in the exhibits filed and most of the letters are addressed to the plaintiffs office at Sultan Bazar, Hyderabad. ; validity of documents appears to have been prepared after the suit is filed = It is clear as per settled law that documents prepared subsequent to the filing of the suit are to be scrutinized with greater care when compared to documents which are prior to the suit. The case law reported in Chakicherla Audilakshmamma v. Atmakaru Ramarao and others , State of Bihar v. Radha Krishna Singh , Umesh Chandra v. State of Rajasthan and P. Kumar v. the State of Tamilnadu is relevant, wherein the Honble Supreme Court clearly held that the documents ante litem motam should be scrutinized with greater care because they may be prepared with the litigation in mind. ; mere account copy - computerized printout - not a valid document = As far as the account copy marked as Ex.B.22 is concerned. it is a computerized printout which is merely signed by DW.1. No supporting data like books/ledgers/ invoices etc. to support the entries in Ex.B.22 are produced. As per the decision reported in Smt. Chandrakantaben and another v. Vadilal Bapalal Modi and others the Honble Supreme Court of India held that entries in account books should be supported by documents like ledgers etc. and somebody should take care to explain the entries also. In this case, a computerized sheet is filed and marked as Ex.B.22. Therefore, this Court is of the opinion that neither Ex.B.21 nor Ex.B.22 are adequately proved as required by law and the lower Court is right in not giving due weight with these two documents. ; Mere failure to reply to a notice does not amount to an admission - Division Bench of this Court in Manepalli Udaya Bhaskara Rao v. Kamboyina Dharmaraju . The Division Bench considered the judgment of the Honble Supreme Court in Union of India v. Watkins Mayor and Company and came to a conclusion that the failure to reply to the notices is not an admission.

HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU       

CCCA No.169 of 1999 

09-11-2017

M/s. Plywood Syndicate,  a partnership firm and 2 others Appellants/Defendants

M/s. National Ply Wood Industries Limited, Hyderabad. Respondent/Plaintiff

Counsel for the appellants: V.S.R. Anjaneyulu

Counsel for the Respondents: None appeared.

<Gist:

>Head Note:

? Cases referred:

  2010 (6) ALD 484
2 AIR 1973 AP 149 
3 AIR 1983 SC 684 
4 (1982) 2 SCC 202
5 MANU/TN/3504/2010 
6 AIR 1989 SC 1269 
7 2004 (1) ALD 269 (DB)
8 AIR 1966 SC 275 


HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU       

CCCA No.169 of 1999 

JUDGMENT: 

        CCCA No.169 of 1999 is filed against the judgment and
decree of the IV Senior Civil Judge, Hyderabad, dated
29.10.1998 passed in O.S.No.297 of 1989.
      2.        The suit was filed by Pioneer Wood Products Pvt.
Ltd., initially and later as per the orders dated 21.02.1997 in
I.A.No.878 of 1996 in O.S.No.297 of 1989, the plaintiffs name
was amended to National Plywood Industries Ltd.
The defendants are Plywood Syndicate, a partnership firm and
its two partners.  The suit was filed for recovery of money due
towards the goods supplied by the plaintiff to the first
defendant with interest and costs.  The defendants filed the
written statement denying the suit claim and stating that if the
accounts are actually taken and credit was given certain claims
of the defendants, the suit will have to be dismissed and the
plaintiff will have to pay the amount back.  After the
amendment to the plaint in the cause title and additional
written statement were also filed.
      3.        The lower Court framed issues and also framed an
issue of territorial jurisdiction.  Ex.A.1 to A.107 were marked
for plaintiff.  Exs.B.1 to B.21 were marked for defendants.  One
witness each was examined by plaintiff and defendants. After
trial, the suit was decreed with costs.  Aggrieved by the same,
the defendants preferred the present appeal.
        4.      As it is a first appeal, the parties are hereinafter
referred to as plaintiff and defendants only, for the sake of
convenience.
        5.      Heard Sri V.S.R. Anjaneyulu, learned counsel for
the appellants. None appeared for the respondent/plaintiff.
       
      6.        The first and foremost point that was urged by the
learned counsel for the appellants/defendants is that the Court
at Hyderabad did not have the territorial jurisdiction to
entertain the suit. As per the defendants, the entire transaction
took place in Vijayawada and merely because the plaintiffs
head office is at Hyderabad, the suit is not maintainable.  The
defendants also pleaded that the plaintiff had a depot in
Vijayawada in which orders were placed by the defendants and
material was also supplied from the said depot to the
defendants, who admittedly are carrying with business in
Vijaywada.  Hence, learned counsel argued that the entire
cause of action arose at Vijayawada alone and that no part of
the cause of action arose at Hyderabad or within the
jurisdiction of Senior Civil Judge, City Civil Courts,
Hyderabad.  The lower Court also framed an issue on this
point.  The learned counsel cited the judgment reported in
Tirumala Tirupathi Devasthanam, Tirupati v. Shree
Distributors, Hyderabad   in support of his submission.
        7.      However, a reading of the entire evidence reveals
that the plaintiff stated that the defendants used to purchase
the plywood from the office at Hyderabad and that the
payments were made sometimes by cash and sometimes by     
cheques and demand drafts.  The defendants in their written
statement in page-2 at para-3 state that correspondence with
Hyderabad office and making of payments to Hyderabad office
for the sake of convenience will not enable the plaintiff to file
the suit at Hyderabad.  Thus, the defendants admitted the
payments were made at Hyderabad.  The witness examined on    
behalf of the defendants as DW.1 is the partner of the first
defendant firm.  On 31.07.1998 during the course of his cross-
examination, he clearly admits that he used to make payments 
to the plaintiff at Hyderabad office and also correspondence
was with Hyderabad office. In addition, the correspondence
clearly shows that the issues relating to the suit transaction
alone were discussed in the exhibits filed and most of the
letters are addressed to the plaintiffs office at Sultan Bazar,
Hyderabad. 
      8.        It is, therefore, clear that issues relating to this suit;
the transactions covered therein and issues pertaining to the
cause of action for this Court including the payments were
made at Hyderabad. Therefore, a part of the course of action
definitely arose at Hyderabad. Consequently, the Court at
Hyderabad had the jurisdiction to decide this matter and this
issue is decided in favour of the plaintiff and against the
defendants.  The lower Court did not commit any error on the
issue of the territorial jurisdiction.  Therefore, the finding in
para-15 of the judgment on additional issue framed on
13.02.1996 is confirmed. The case law cited in Shree
Distributors, Hyderabad (1 stated supra) is not applicable to the
facts of the present case for the reason that in that case there
there was a written contract and the goods were supplied to
Tirupati.  The appellant in that case is Tirumala Tirupati
Devasthanam.  The learned single Judge rightly held that the
Court at Hyderabad does not have jurisdiction and that the
parties by a contract cannot confer jurisdiction on a Court.
Hence, the said judgment is not applicable to the facts of the
present case.
        9.      The learned counsel for the appellant/defendants
also argued that the lower Court failed to frame an additional
issue on the point whether the new plaintiff substituted in
place of the original plaintiff could pursue the suit.
He argued that there was no proof of the amalgamation.
National plywood Industries Ltd with its registered office at
Makkum Road, Tinsukia, District Tinsukia, Assam was 
substituted as a plaintiff in place of Pioneer Wood Products
Ltd.  The plaintiff was substituted by virtue of the orders
passed in I.A.No.878 of 1996 in O.S.No.297 of 1989 dated
21.02.1997.  Apparently, there was no revision preferred
against the said order and the same has become final.
The learned counsel also argued that no evidence was placed
with regard to the amalgamation of the original plaintiff with the
substituted plaintiff.  This submission does not appear to be
correct since Ex.A.61 was filed by the plaintiff and it is an order
of the Honble Assam High Court in Company Petition No.3 of
2013 dated 18.12.1992 under which Pioneer Wood Products   
Ltd was amalgamated with a National Plywood Industries Ltd.
There was no cross-examination whatsoever on this exhibit nor
on the contents of this exhibit.  Therefore, this Court does not
find any substance in the submission of the learned counsel
that there is no proof that the current plaintiff is entitled to
prosecute the suit.
        10.     On the merits of the claim, the learned counsel for
the appellants/defendants submitted in the written statement
that they have raised a plea that as the goods are supplied on
credit and that as there are debits and credits in the accounts,
the plaintiff will not be entitled to suit claim and certain
adjustments have to be made under the five heads which are
described in the written statement. As per the learned counsel
for the defendants if these five heads of claim are considered,
nothing will remain to be paid to the plaintiff in the suit.
        11.     The learned counsel argued that the finding of the
lower Court that they did not prove this aspect was not correct
and stated that they have filed correspondence to this effect.
However, a perusal of the correspondence filed does not
support the monetary claim raised by the defendants.
In the course of the business, many letters are exchanged but
when it comes to a proof in a court, the defendant will not have
proved their case with reasonable certainty at least.
The five claims of the defendants are discussed in paras17 to
20 of the impugned judgment and as rightly noticed by the
lower Court, the monetary aspect of the claim is not clearly
borne out in the record and more so the correspondence.
      12.       In the written statement, among various heads
pointed out, they have claimed a sum of Rs.1,58,125/- as
differential credit amount for two trucks of unwanted goods
sent through Kaleswari Lorry Service. The learned counsel for
the appellants/defendants argued that Exs.B.15 to B.17 read
with Exs.B.20 & 21 would prove this claim.  Ex.B.15 is a letter
stating that two trucks of plywood with two delivery challans
are sent back.  The two delivery challans are Exs.B.16 and
B.17.  Ex.B.20 is an acknowledgement of receipt by the
plaintiffs office at Hyderabad. These documents do not
establish the monetary claim of Rs.1,58,123/-.
      13.       Similarly, there is another claim of Rs.94,741/-,
and as per the appellant, credit is not given for wrongful supply
of pionex brand instead of pioneer brand.
The learned counsel for the appellants/defendants pointed out
that Ex.B.4 is the document in support of the same.  Ex.B.4 is
a letter dated 26.04.1984 regarding defective material.  It does
not establish the value of the material particularly the value
that is claimed in the written statement. The same is the case
with regard to the other three issues raised in the written
statement and the learned counsel pointed out the
correspondence relating to each of the sub-heads, which
according to him have a bearing on this issue. He also pointed
out that they have filed Exs.B.21 & 22 to prove the 5 claims
they have.  Exs.B.21 and B.22 were marked subject to the
objection in the lower Court.  Ex.B.21 is a statement. It
particularly appears to have been prepared after the suit is
filed and it bears the suit number and the cause title of the
suit. There is no supporting material filed for the entries in
Ex.B.21.  It is clear as per settled law that documents prepared
subsequent to the filing of the suit are to be scrutinized with
greater care when compared to documents which are prior to
the suit.  The case law reported in Chakicherla
Audilakshmamma v. Atmakaru Ramarao and others , State    
of Bihar v. Radha Krishna Singh , Umesh Chandra v. State of
Rajasthan  and P. Kumar v. the State of Tamilnadu  is
relevant, wherein the Honble Supreme Court clearly held that
the documents ante litem motam should be scrutinized with 
greater care because they may be prepared with the litigation
in mind.  Therefore, Ex.B.21 cannot be treated as true and
correct, more so when there is no corroboration for the entries
thereon.

      14.       As far as the account copy marked as Ex.B.22 is
concerned. it is a computerized printout which is merely signed
by DW.1. No supporting data like books/ledgers/ invoices etc.
to support the entries in Ex.B.22 are produced.  As per the
decision reported in Smt. Chandrakantaben and another v.
Vadilal Bapalal Modi and others  the Honble Supreme Court
of India held that entries in account books should be
supported by documents like ledgers etc. and somebody  
should take care to explain the entries also.  In this case, a
computerized sheet is filed and marked as Ex.B.22.  Therefore,
this Court is of the opinion that neither Ex.B.21 nor Ex.B.22
are adequately proved as required by law and the lower Court
is right in not giving due weight with these two documents.
Even DW.1 admits ExsB.1 & B.2 do not reflect in our ledger
(last line of cross-examination)
        15.     In contra distinction to this, the plaintiff filed his
document and also filed exhibits like bills, ledger and
statement of accounts etc. It is also a fact that the defendants
issued cheques towards part payment of the debt due to the
plaintiff which were also dishonoured.  The same is borne out
by the oral and documentary evidence.  In addition to the
above, DW.1 also admits in his cross-examination on
03.08.1998 in page-8 as follows:
it is true as per our ledger, we have to pay a sum of
Rs.3,51,383.10 to plaintiff towards supply of material.
       
        16.     The admission of the defendants is thus clear. It is
also noticed that the plaintiff issued a legal notice demanding
the said sum from the defendants and the defendants did not
reply to the same and the defendants did not also issue a
notice demanding the sums mentioned in their defence
statement.  They did not make a counter claim or claim set off
etc.  Hence, the lower Court rightly disbelieved the version set
up by the defendants
      17.       However, the learned counsel is right in pointing
out that the lower Court erred in holding that the failure to
reply to the notice is an admission. This finding of the lower
Court in para-21 is not correct. Mere failure to reply to a notice
does not amount to an admission. The learned counsel for the
appellants/defendants drew the attention of this Court to a
Division Bench of this Court in Manepalli Udaya Bhaskara
Rao v. Kamboyina Dharmaraju . The Division Bench  
considered the judgment of the Honble Supreme Court in
Union of India v. Watkins Mayor and Company  and came to a  
conclusion that the failure to reply to the notices is not an
admission. 
        18.     A perusal of the judgment of the lower Court
reveals that it considered all the aspects in detail and came to a
conclusion that the suit claim is proved.  There is no evidence
to contradict the said claim nor are any grounds spelt out to
come to a different conclusion.
        19.     For all the above reasons, the appeal is dismissed
and the judgment and decree of the lower Court dated
29.10.1998 in O.S.No.297 of 1989 are confirmed.  In the
circumstances of the case, there shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this appeal shall
stand closed.
________________________   
D.V.S.S. SOMAYAJULU, J   
Date: 09.11.2017

rebuttal evidence = Order XVIII Rule 3 addresses the question as to what should be done when the burden of proving some of the issues lies on one party. The Rule reads as follows: Rule-3:- Evidence where several issues -- Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. The first pre condition for invocation of Order XVIII Rule 3 is that there must be several issues, the burden of proving some of which lies on the party beginning. The second important aspect of Order XVIII Rule 3 is that it is only an option given to a party.

HONOURABLE SRI JUSTICE V. RAMASUBRAMANIAN           

C.R.P.No.5665 of 2017

15-12-2017

Chaganti Lakshma Reddy, S/o. Koti Reddy,R/o.Nunna, Vijayawada Rural Mandal,Krishna District, Vijayawada D.M.C. Petitioner/D 

1.Chaganti Siva Rami Reddy, S/o. Chaganti lakshma Reddy, Occ: Employee, at present resident of Bangalore, rep. by his Power
2.Dr. Chaganti Harsh Reddy, S/o. Changanti Lakshma Reddy, Occ: Doctor, Royal Residency, Flat No.501, Moghalrajapuram, Vijayaw 


Counsel for the Appellants: Mr. M. Radhakrishna

Counsel for the Respondent No.1: Mr. G. Narendra Raj

^Counsel for the Respondent No.2        : Mr. P. Rajasekhar

<GIST:

>HEAD NOTE: 

?Cases referred

1) 2008 (3) ALT 724
2) 2004 AIR SCW 1842 
3) AIR 1971 SC 996
4) 2005 (5) SCJ 519
5) (2015) 5 SCC 423


HONBLE SRI JUSTICE V. RAMASUBRAMANIAN         

C.R.P.No.5665 of 2017

ORDER:

      The 1st defendant in a suit for partition has come up with the above
revision, challenging an order passed by the trial Court allowing an
application filed under Order XVIII Rule 3 permitting the plaintiff to lead
rebuttal evidence on Issue No.1 after the completion of the defence
evidence.
      2. Heard Mr. M. Radhakrishna, learned counsel for the petitioner
and Mr. G. Narendra Raj, learned counsel appearing for the 1st
respondent/plaintiff.
      3. The 1st respondent herein filed a suit in O.S.No.181 of 2007 on
the file of the Additional District Judge, Vijayawada for partition and
separate possession of his 1/3rd share in suit A and B schedule
properties. The claim of the 1st respondent/plaintiff in his plaint was that
he was the son of the petitioner/1st defendant herein through his first
wife; that after the death of the 1st respondent/plaintiffs mother, the
petitioner/1st defendant married another lady and in the said wedlock, the
2nd respondent herein (2nd defendant in the suit) was born; that the
property described in plaint A schedule was allotted to the share of the
petitioner/1st defendant in a partition that took place between the
petitioner and his two brothers; that plaint A schedule property is a fertile
land, from the income out of which, plaint B schedule property was
purchased; that the plaint A and B schedule properties are joint family
properties in which he has a right to the extent of 1/3rd, and that therefore
he was filing a suit for partition.
      4. The father and the step son, who are defendants 1 and 2 in the
suit, filed their written statements, after which the trial Court framed three
issues for consideration. The issues were
1.      Whether the plaintiff is entitled for partition of Plaint A & B
schedule property as prayed for?
2.      Whether the plaintiff is entitled for future mesne profits of
Plaint A & B schedule properties?
3.      To what relief.

      5. Thereafter, the trial commenced and the 1st respondent/plaintiff
examined himself as PW.1 and marked 20 documents as Exs.A.1 to A.20. 
The Power Agent of the 1st respondent/plaintiff was examined as PW.2.
      6. Thereafter, the 1st respondent/plaintiff took out an application in
I.A.No.1284 of 2017 under Order 18 Rule 3 seeking permission to lead
rebuttal evidence after the completion of the evidence on the side of the
defendants. This application was allowed by the trial Court forcing the
petitioner/1st defendant to come up with the above revision.
      7. In order to understand the scope of the dispute raised in this
revision, it may be relevant to take note of the scheme of Order XVIII of
the Code. Order XVIII Rule 1 of the Code speaks about the right to begin.
In every suit, the plaintiff has the right to begin unless the defendant
admits the facts alleged by the plaintiff and contends that either in point
of law or on some additional facts the plaintiff is not entitled to any part of
the relief. In cases where the defendant admits the facts alleged by the
plaintiff and claims on a point of law or on an additional fact that the
plaintiff is not entitled to the relief, the defendant will have the right to
begin.
      8. In simple terms, the right to begin incorporated in Order XVIII
Rule 1 is what onus probandi is. Once the person on whom the onus to
prove a fact lies, goes to the witness box tenders evidence, then the
burden of proof would shift to the other party. This is where the
distinction between onus and burden lies.
      9. Once the party on whom the right to begin lies is determined, he
will then be obliged to produce his evidence in terms of Order XVIII Rule
2. Under Order XVIII Rule 2(1), the party having the right to begin should
state his case and produce his evidence. After he has produced his
evidence, the other party, in terms of Order XVIII Rule 2(2), should state
his case and produce his evidence. But notwithstanding anything
contained in the Rule, the Court may permit any party to examine any
witness at any stage.
      10. Order XVIII Rule 3 addresses the question as to what should be
done when the burden of proving some of the issues lies on one party.
The Rule reads as follows:
       Rule-3:- Evidence where several issues -- Where
there are several issues, the burden of proving some of
which lies on the party, the party beginning may, at his
option, either produce his evidence on those issues or
reserve it by way of answer to the evidence produced by
the other party; and, in the latter case, the party
beginning may produce evidence on those issues after
the other party has produced all his evidence, and the
other party may then reply specially on the evidence so
produced by the party beginning; but the party
beginning will then be entitled to reply generally on the
whole case. 
        
        11. The option given to a party is actually available only where
there are several issues, the burden of proving some of which alone lies
on him. The option available under Rule 3 is either to produce his
evidence on the issues with respect to which the burden lies on him or to
reserve it by way of an answer to the evidence produced by the other
party.
        12. The first pre condition for invocation of Order XVIII Rule 3 is
that there must be several issues, the burden of proving some of which
lies on the party beginning. The second important aspect of Order XVIII
Rule 3 is that it is only an option given to a party.
        13. In the case on hand, it is fairly conceded by the learned
counsel appearing for the respondents that there were no several issues,
the burden of proving some of which alone was on the plaintiff. I have
already extracted the issues framed by the trial Court. The issues 1 and 2
framed by the trial Court constitute a composite whole. In other words,
there was virtually only one issue and the plaintiff had elected to go to the
witness box first by exercising his right to begin under Order XVIII Rule 1.
        14. There was no other issue before the trial Court, in respect of
which the burden was on the defence. It is only in cases where the
burden of proof in respect of some issues were on the plaintiff and in
respect of the other issues were on the defence that the plaintiff can
invoke Order XVIII Rule 3 to confine his evidence in the first instance to
the issues with respect to which he has a burden, and to reserve his right
to produce rebuttal evidence in respect of issues for proving which the
burden was on the defendant. Therefore, the 1st respondent/plaintiff, in
the case on hand, could not have invoked Order XVIII Rule 3 at all, as the
most essential requirement of Order XVIII Rule 3, viz., (a) the existence of
several issues and (b) the burden of proving some of which lies on the
other party, were not there.
        15. Relying upon a decision of a learned Single Judge of this Court
in K. Anjamma @ Anjali Devi v. K. Sudarshan Reddy , it was
contended by the learned counsel for the 1st respondent/plaintiff that in a
suit for partition, the distinction between the plaintiff and the defendant
gets blurred. Therefore, it is contended by the learned counsel for the 1st
respondent/plaintiff that there was nothing wrong in the order of the trial
Court.
        16. If the above logic is accepted, the 1st respondent/plaintiff could
have made an endorsement and allowed the petitioner/1st defendant to go
to the witness box first. The 1st respondent/plaintiff exercised his right to
begin under Order XVIII Rule 1. Once he has gone to the witness box, he
cannot withdraw half way through, with liberty to come back again by
invoking Order XVIII Rule 3.
        17. Interestingly, it was conceded by the learned counsel for the 1st
respondent/plaintiff that in this case there were no several issues and that
Order XVIII Rule 3 had no application. But still the learned counsel for the
1st respondent/plaintiff, placing reliance upon the decision of the Supreme
Court in Shipping Corporation of India, Ltd., v. Machado Brothers ,
contended that wherever there is no specific provision for the grant of a
relief in the Code, the Court can invoke Section 151. But the said
argument has to be stated only to be rejected. Whenever the plaintiff
chooses to lead evidence first and to reserve his right to go back to the
witness box after the defendant completed his evidence, he has to invoke
Order XVIII Rule 3 alone. When there is a specific provision in Order XVIII
Rule 3, the plaintiff cannot bypass the same and claim that there is no
specific provision and that he could fall back upon Section 151 CPC.
        18. Inviting my attention to the decision of the Supreme Court in
The State Bank of Travancore v. Arvindan Kunju Panicker , the
learned counsel for the 1st respondent/plaintiff contended that a Hindu
family is presumed to be joint, unless the contrary is established. We do
not know why we should go into the said question. If it was the claim of
the 1st respondent/plaintiff that his pleading itself was sufficient to hold
the suit properties as joint family properties, he need not have gone to
the witness box and examined two witnesses. Accepting that the onus
was on him, he exercised his right to begin under Order XVIII Rule1.
Therefore, today he cannot go back to the aforesaid proposition.
        19. Relying upon the Supreme Court decision in Salem Advocate
Bar Association, Tamil Nadu v. Union of India , the learned counsel
for the 1st respondent/plaintiff contended that rules of procedure are only
handmaid of justice, and that therefore, the Courts should interpret the
Rules only to advance the cause of justice. We do not know how the said
principle could be invoked in this case. We are concerned in this case with
the question whether the plaintiff, after having chosen to examine two
witnesses, can seek the liberty of the Court to come back to the witness
box again after the defendant completed his evidence, for answering this
question. Therefore the said decision has no application.
        20. Drawing my attention to the decision of the Supreme Court in
Radhey Shyam v. Chhabi Nath , it is contended by the learned counsel
for the 1st respondent/plaintiff that the jurisdiction of this Court in a
revision under Article 227 is circumscribed. There can be no quarrel with
the said proposition. But when admittedly the plaintiff invokes a provision
of law inapplicable to his case and gets permission to withdraw himself
from the witness box with liberty to appear, and the Court falls into a trap
by granting the relief, the same would tantamount to an error of
jurisdiction, that is liable to be corrected by this Court. The revisional
jurisdiction of this Court under Article 227 would certainly be applicable to
cases of this nature, where the Court grants a relief on the basis of a
provision of law that is admitted before the High Court to be inapplicable
to the situation on hand.
        21. Therefore, the Civil Revision Petition is allowed and the
impugned order is set aide. It is open to the 1st respondent/plaintiff to
continue and complete the evidence on his side and thereafter it is up to
the defendants to lead evidence.
      22. As a sequel, miscellaneous petitions pending in this revision, if
any, shall stand closed. There shall be no order as to costs.

_________________________ 
V. RAMASUBRAMANIAN, J.   
15th December, 2017.

Whether fair rent fixed by Rent Controller exceeding the upper limit of jurisdiction of Rent controller fixed under Section 32 of the Act from the date of petition under Section 4(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, takes away the jurisdiction that conferred on the Rent Controller in a petition filed under Section 10 of the Act, subsequent to filing of petition under Section 4(1) of the Act?. = The fixation of fair rent is only an incidental issue of the matter and therefore the same is of no avail and would not impact the eviction of the tenant if the landlord has been found to be in need of the premises and the tenant is found to have own premises as well as the tenant having defaulted in payment of rents as has been found on all three grounds in the present matter. 30. In view of the above, we hold in the present reference that, the Rent controller Court would continue to have jurisdiction, in spite of fixation of fair rent of the premises at any amount more than Rs.3,500/-, if the rent of the premises when eviction proceedings were filed was less than Rs.3,500/-

HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE D.V.S.S.SOMAYAJULU                 

C.R.P No.6465 OF 2016 

10-11-2017

Smt Radhi Raney and another  Petitioners 

Mrs. Nanki Feroze....   Respondent 


Counsel for the Petitioners: R.A. Achuthanand

Counsel for the Respondent:  Mohd. Imran Khan

<Gist :

>Head Note :

? Cases referred  :    1.  2007 (4) ALT page 348
2.2004 (1) ALD page 296 of JCB
3.2007(4) ALD 137
4.AIR 1988 SC 2031 
5.AIR 1982 SC 1230 
6.2012 (3) ALD 155
7.2004 (1) ALD 296
8.AIR 1918 (Madras) 998
9.2013 (5) ALD 223

HONBLE SRI JUSTICE SURESH KUMAR KAIT       
AND 
                 HONBLE SRI JUSTICE D.V.S.S.SOMAYAJULU 
CIVIL REVISION PETITION No.6465 OF 2016   
ORDER: 
     (Per Honble Sri Justice SURESH KUMAR KAIT) 
        Vide the present petition, the petitioners have challenged
the order dated 16.08.2016 passed in R.A.No.176 of 2013 by
the Chief Judge, City Small Causes Court, Hyderabad,
whereby, the appeal filed by them against the order passed in
RC No.69 of 2011, dated 31.07.2013  by the Additional Rent
Controller, Secunderabad, has been dismissed.
        2.  When the present petition was listed before the
learned Single Judge, Sri Justice M. Satyanarayana Murthy, on
01.08.2017, an order was passed, which reads as under:
      In view of present anomalous situation, I am unable to
express any view with regard to correctness of either of the
judgments.  Hence, the following question is formulated to answer
by Division Bench:
      Whether fair rent fixed by Rent Controller exceeding the
upper limit of jurisdiction of Rent controller fixed under Section 32
of the Act from the date of petition under Section 4(1) of the A.P.
Buildings (Lease, Rent and Eviction) Control Act, takes away the
jurisdiction that conferred on the Rent Controller in a petition filed
under Section 10 of the Act, subsequent to filing of petition under
Section 4(1) of the Act?.

      3.  Thus, the present petition is listed before this Court to
answer the reference.
      4.  The facts of the case are that:
             The respondent is a landlady who filed RC No.68 of
2011 on 11.07.2011 for fixation of fair rent of premises from
Rs.2,600/-per month to Rs.15,000/- per month.  Meanwhile,
the respondent/landlady filed R.C.No.69 of 2011 for eviction of
tenants on 14.11.2011 on various grounds.  The fixation of fair
rent application i.e., RC No.69 of 2011 was allowed on
31.07.2013 enhancing the rent to Rs.5,000/- per month.
Being aggrieved by the aforesaid order, the petitioners/ tenants
had filed R.A. No.176 of 2013 on the file of Chief Judge, City
Small Causes Court, Hyderabad and the same was dismissed   
on 16.08.2016 confirming the order of the lower Court.
      5.  Being aggrieved again, the tenants preferred present
CRP and canvassed that the Rent Control Court has no
jurisdiction to pass an order of eviction as the rent is enhanced
beyond the pecuniary jurisdiction of the Rent Controller.
      6.  Learned counsel for the petitioners/tenants argued
that prior to amendment Act No. 17/2005, the pecuniary
jurisdiction of the Rent Control Court was if rent is up to
Rs.1,000/- per month.  In view of the Government having
issued G.O.Ms.No.636 dated 24.12.1983 the operation of the
provisions of the Act on all the newly constructed buildings
were exempted, irrespective of date of construction, for a
period of 10 years from the date on which their construction
was completed and those premises where the rent was more 
than Rs.1,000/- per month, from the provisions of Rent
Control Act.  The application for fixation of fair rent was filed on
11.07.2011 and an eviction petition was filed in the same year,
but on a later date.
      7.  Learned counsel for the petitioners/tenants submits
that the judgment rendered in 2012 Law Suits AP Page 8 or
2013 (3) ALT page 421 of JCB para 7 of the judgment also
refers to an identical question which fell for consideration by
the Court in Anil Kumar R. Kamdar (died per LRs) Vs.
Dasari Vaikuntam (died per LRs) in CRP No.5025 of 2009
dated 21.07.2010.  The learned Single Judge by the aforesaid
judgment dated 21.07.2010 repelled the submissions and held
that since the Rent Controller has jurisdiction to entertain the
eviction on the date of filing the petition, subsequent event of
fixation of fair rent albeit with retrospective effect will not oust
the jurisdiction of the Court and a reliance was made by
learned judge relying on a Full Bench of this Court in Ram
Vilas Bajaj Vs. Ashok Kumar .  Similarly, the judgment cited
in 2012 Law Suit AP 45 also refers to the said judgment.  The
reference is confined to the judgments of Justice Sri C.V.
Nagarjuna Reddy and Dr.Justice Sri B. Siva Sankara Rao.  The
aforesaid two judgments are conflicting judgments.  The
judgment rendered by justice C.V. Nagarjuna Reddy relies
upon the other judgments relied upon wherein the learned
judge has observed that change in the pecuniary jurisdiction
will not oust the jurisdiction that the suit was lawfully
instituted.  The judgment relied upon deals with the payment of
Court fee act which was changed during pendency of the suit.
It does not directly deal with Section 4(1) of the Act.
      8.  Learned counsel for the petitioners submits that the
judgment in Sai Kiran General Stores, Secunderabad Vs. Sai
Anand Prasad  has been referred to, wherein Justice Surya
Rao, had observed that the Rent Control Court has jurisdiction
to fix the fair rent exceeding the jurisdiction.  The said
judgment also deals with issues arising from the
G.O.Ms.No.636 dated 18.12.1983 when the Government   
issued Gazette after Section 32 (b) (Act was not applied to any
building constructed on or after 26.8.1957) was struck down
by the Honble Supreme Court holding that it is
unconstitutional and the Government issued the said
G.O.Ms.No.636, wherein all the buildings, which were
constructed 10 years were exempted from the purview of the
Rent Control Act and if the rent is more than Rs.1,000/-, the
Act will not apply to those buildings.
      9.  As per the said G.O., a question raised, before the
then Justice Surya Rao was that the Rent Controller has no
jurisdiction to fix the fair rent beyond its pecuniary
jurisdiction. It was argued there that once the rent is fixed
beyond Rs.1,000/-, the property comes out from the
jurisdiction of the Rent Control Act.  Justice T.Ch.Surya Rao
negatived the said contention and held that the Rent Controller
does not lose jurisdiction over the case even if the fair rent is
fixed above the limits prescribed.  The said judgment was also
relied upon by the learned Justice C.V.Nagarjuna Reddy in the
matter mentioned above.
      10.  Learned counsel for the petitioners submits that Sri
Justice C.V.Nagarjuna Reddy did not deal with Section 4 (1) of
the Act correctly and the fixation of fair rent relates back to the
date of application.  As such, the Rent control Court would lose
its jurisdiction once the rent is fixed beyond Rs.3,500/- per
month.
      11.  Learned counsel for the petitioners further submits
that in the judgment referred by Dr.Justice B. Siva Sankara
Rao in CRP Nos.3516 and 3570 of 2016, the learned judge has
dealt with the issue relying upon the judgments of the Apex
Courts and relied upon a case in Boolchand and Company 
Vs. Qamarunnisa Begum.  The Division Bench of this Court
has observed that : invariably if the premises, rent was
Rs.9,000/- per month, the provisions of the Act invariably
applied to it, since the stipulated rent was Rs.1,000/- or
below at a relevant point of time.  If during the pendency
of the proceedings, the rent is determined either with the
agreement of parties or through a determination of the
Court at Rs.1,500/-, the act will cease to exist.
      12.  As submitted by the learned counsel for the
petitioners that the aforesaid observation directly deals with
Section 4(1) of the Rent Control Act.  However, Justice
C.V.Nagarjuna Reddy and other learned judges do not deal
with the effect of Section 4 (1) of the Act.
      13.  It is pertinent to mention here that the judgment
passed by Dr.Justice B. Siva Sankara Rao in CRP Nos.3516 
and 3570 of 2016 dated 07.11.2016 is conflicting with the
decision of Justice C.V.Nagarjuna Reddy passed in CRP 
No.5842 of 2011, dated 09.02.2012, as reported in 2012 (3)
ALD at page No.155.  Hence, the reference is made before this
Court.
      14.  Justice C.V. Nagarjuna Reddy has concluded in
para-14 of the above mentioned judgment, as follows :
      14. On the analysis as above, I hold that as the Rent
Controller had pecuniary jurisdiction to entertain the eviction
petition when it was instituted, the subsequent fixation of fair rent,
even with effect from the date of application, would not bar the
jurisdiction of the Rent controller to decide the eviction petition.

      15.  The said matter has been dealt with exactly same
situation as is being attempted to be projected in the present
matter.  It is held that the Rent Controller has pecuniary
jurisdiction to entertain the eviction petition when it is
instituted and the subsequent fixation of fair rent, even with
effect from the date of application, would not bar the
jurisdiction of Rent Controller to decide the eviction petition.
      16.  The learned counsel for the respondent submits that
the judgment in CRP Nos.3516 and 3570 of 2016 dated 
07.11.2016 does not refer to the prior decision as reported in
2012 (3) ALD 155.  Thus, the later decision is per incuriam,
and hence, liable to be totally ignored.
      17. He relies upon the principles of per incuriam and
relies on Dr Reddys Formulations case (5 supra), where it
was held in para 23, as under:
      23.  Also both the decisions in Panyam Cements
Employees Union (5 supra) and I Srinivasa Rao (3 supra)
have been rendered in ignorance of the decision of O.
Chinnappa Reddy, J in HMT Employees Union (7 Supra) and 
the decision in All India Reserve Bank Employees
Federation (8 Supra) and have therefore to be held to be per
incuriam.

      and in para 34, as under:
      34. In Union of India v. R.P. Singh (9) 2014 (3) ALT 55
(SC) = 2014 (5) SCJ 28 = (2014) 7 SCC 340, the Supreme 
Court held that if a decision has been rendered per incuriam,
a Court can ignore it.  It followed the seven Judge Bench
judgment of the Supreme Court in A.R. Antulay v. S.R Naik
(10) AIR 1988 SC 1531 and the decision in Siddharam
Satilingappa Mhetre v. State of Maharashtra and others (11)
2011 (1) ALT (Crl.) 69 (SC) = 2011 (1) SCJ 36 = (2011) 1 SCC
694.  Several judgments of the apex court have been
considered in the latter judgment and it was reiterated that a
decision of the Supreme Court which did not consider a
Constitution Bench judgment of the said Court would be per
incuriam and the Constitution Bench judgment should be
followed and not the decision which ignored it.
Accordingly, it is held that the decision rendered in
ignorance of a prior judgment can be treated as per
incuriam and when a decision is rendered per incuriam,
court can ignore the same.  It need not be referred to a
larger bench.  Subsequently, another case law reported in
Lanka Babus case (6 supra) para Nos. 81 and 82, as
under:
   81. In State of U.P. v. Synthetics and Chemicals Ltd.,
(1991) 4 SCC 139, the Supreme Court declared:
 Incuria literally means carelessness.  In practice per
incuriam appears to mean per ignoratium.  English Courts
have developed this principle in relaxation of the rule of Stare
decisis.  The quotable in law is avoided and ignored if it is
rendered, in ignoratium of a statute or other binding
authority. (Young v. Bristol Aeroplane Co. Ltd (Supra). Same
has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law.  In
Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83, this Court
while pointing out the procedure to be followed when
conflicting decisions are placed before a Bench extracted a
passage from Halsburys Laws of England incorporating one
of the exceptions when the decision of an appellate court is
not binding.
      82. The exception to the doctrine of binding nature of
precedent referred to in the above decision from its earlier
decision in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83,
is:
       The court is not bound to follow a decision of its own
if given per incuriam.  A decision is given per incuriam when
the court has acted in ignorance of a previous decision of its
own or of a Court of a co-ordinate jurisdiction which covered
the case before it, or when it has acted in ignorance of a
decision of the House of Lords.  In the former case it must
decide which decision to follow, and in the latter it is bound
by the decision of the House of Lords.

      18.  The said decision rendered by Justice Siva Shankar
Rao relies on an earlier decision rendered by a Division Bench
(2013 (5) ALD 223).  The decision of the Division Bench was
delivered without reference to an earlier decision on the same
point.  There is no reference to any case law in the Judgment
2013 (5) ALD 223.  The operative finding in the said judgment
i.e., 2013 (5) ALD 223(DB), whereby it is held in para 17, as
under:
      "17.  Before parting with the appeals, we intend to
make an observation about the impact of the determination in
IA No.1582 of 2000 about the question of jurisdiction.  Even
where the provisions of the Act apply to the premises, but the
fair rent is determined under Section 4 of the Act at an
amount, that exceeds the one stipulated for bringing the
premises under the Act, the provisions of the Act cease to
apply.  For instance, if the rent of the premises was Rs.900/-
per month, the provisions of the Act invariably apply to it,
since the stipulated rent, in this regard was Rs.1,000/- or
below at the relevant time.  If during the pendency of any
proceedings,  the rent is determined either with the agreement
of the parties or through a determination by the Court at
Rs.1,500/-, the premises ceased to be under the purview of
the Act.  From this point of view, with the determination of the
rent at Rs.4,000/- per month, with periodical enhancement,
even the remote possibility of the provisions of the Act being
made applicable, ceases to exist,  This finding is not
supported by any case law at all.
      19.  After perusal of the aforesaid para, in respect of the
order passed in I.A.No.1582 of 2000 whereby mesne profit at
Rs.4,000/- per month was fixed, the said judgment of Division
Bench was in fact dealing with fixation of mesne profit and
categorically held that if during the pendency of any
proceedings rents are fixed, in such an eventuality, the Rent
control Act would not be applicable.  In other words, once the
fair rent of any property have been fixed at a rate more than
Rs.3,500/- per month, thereafter an application seeking
eviction or any other relief in respect of the property could not
be filed before the Rent Controller.  But in the present matter,
as on date of filing of the eviction petition, no fair rent had been
fixed.  Therefore, the judgment of a Division Bench is not at all
applicable to the facts of the present case.
      20.  Be that as it may, the said matter also having been
decided on 19.06.2013 i.e., later than Case Law  2012 (3) ALD
155 supra.  Thus case law 2013 (5) ALD 223 (DB) supra also
would be per incuriam, as it did not consider earlier case law
albeit that of a Single Judge.
      21.  In fact the case law as reported in 2013 (5) ALD at
page 223 (DB) never arose out of the Rent Control Act and the
same pertains to two appeals vide CCCA Nos.23 of 1997 and 
331 of 2003, which originated out of a suit for partition (O.S.
No.38 of 1964 and O.S No.901 of 1985).
      The case law as reported in 2004(1) ALD 296 in para 29,
categorically held as under:
      29.  From the above, it is obvious that the Rent
controller who has undoubtedly the inherent jurisdiction to fix
the fair rent and has the initial jurisdiction to entertain the
petition, while in the process of fixation of fair rent comes to
the conclusion that the quantum might exceed the limit of
Rs.1000/-; which limit is prescribed under the statute for
convenience sake and on account of the policy of the
Government and is susceptible of change; will not cease to
have jurisdiction and cannot at that stage direct the petitioner
to approach the Municipal Courts.
        22.  On a perusal of the said para, it holds that even by
the consent of parties if the rent of premises is increased
beyond the statutory limit, still the Rent Controller would
continue to have jurisdiction.  Hence, in view of the aforesaid
case law, the Rent Controller Legislation continued to hold
sway over and upon the petition schedule premises in spite of
the fair rent of the petition schedule premises having been fixed
at Rs.5,000/- per month and therefore this Court as well as
Appellate Authority and the Primary authority under the Rent
Control Legislation  would have the jurisdiction to continue to
try the matter.  This aspect was not considered at all by the
learned Single Judge in CRP Nos.3516 of 2016 and 3570 of
2016.
        23.  Insofar as even subsequent legislation is concerned,
the same would also not take away the jurisdiction of the Court
in which the matter was instituted, subject to the condition that
as on the date of such institution the particular court had
jurisdiction over the matter as held in a judgment dated
18.10.2016 deferred by the Honble Supreme Court of India in
Civil Appeal No.8194 of 2016.
        24.  It is well settled principle that right of parties
crystallizes to the date of institution of the suit, as held in AIR
1998 SC at page No.2031.  The said decision speaks about the
weightage that has to be given to the meaning of words,
language, back ground and context of the legislation in seeking
to interpret any statute.
        25.  Apart from the above, it is also important to note that
a Full Bench of this Court in a decision reported in Ramvilas
Bajaj v. Ashok Kumar and Another  was called upon to
decide an issue under the Andhra Pradesh Building (Lease,
Rent and Eviction) Control Act, 1973, wherein the validity of
Section 32 of the said Act was called into question.  The said
Bench was dealing with the applicability of the above said
Section and was called upon to decide whether the same was 
prospective or retrospective.  In the context, while deciding the
said issue, the Full Bench clearly relied upon the settled
position of law, whereby it is clarified that the rights of the
parties as on the date of the institution of the proceedings are
important.
        26.  In para 24 of the Full Bench decision, the judgment
of the Honble the Supreme Court reported in Atmaram
Mittal v. Eswar Singh  was considered.  In that case, the
land lord filed a suit for recovery of possession of a building
within the exemption period.  During the pendency of the suit,
the period of 10 years expired.  The tenant then moved an
application for disposal of the suit on the ground that the
exemption period expired and consequently, the jurisdiction of
the civil Court is barred.  The Supreme Court clearly negatived
the contention and stated that it is well settled that the rights of
the parties will have to be determined on the basis of the rights
available to them on the date of the suit.  Similarly, the Full
Bench of this High Court also reiterated the findings of the
Supreme Court in various cases that when a lis commences, 
all the rights get crystallized on the date of filing of the case.  In
addition, Om Prakash Gupta v. Dig Vijendrapal Gupta
was also considered by the Full Bench of this Court.  Although
reference to the Full Bench was on the question of the
prospective/retrospective application of a particular Section,
still the important pronouncement is about the rights of parties
which get crystallized on the date of which lis or a suit is
commenced.  Both the single Judges in the judgments reported
in  Mohammadiya & Co. v. Uma and others  and Sai 
Krishna General Stores vs B. Sai Anand Prasad
considered earlier Full Bench decision of the Madras High
Court  reported in Putta Kannayya v. Venkata Narasayya
and held that :
       We are therefore of the opinion that
in every case, when the Court is seized of
jurisdiction, it can not and does not lose it
by any change in the value of the subject
matter of the suit after the institution of the
suit or by the precise ascertainment of its
value in cases which do not admit of such
ascertainment at the time of institution,
except when the plant is allowed to be
amended; and that is not really an
exception.   On the same principle we think
that the Court can award such a sum as it
finds due to the plaintiff, although such a
sum is above the pecuniary limits of its
jurisdiction   

      27.  This Full Bench judgment of the Madras High Court
was not considered by the learned single Judge in
CRP.Nos.3516 and 3570 of 2016.  Neither the principle that
the rights get crystallized on the date of the  lis nor the Full
Bench of the Madras High Court reported in Putta
Kannayya case was considered by the Division Bench in the
judgment reported in Bulchand and company v.
Khamrunnisa Begum and others .   Hence, we are 
constrained to hold that Bulchand and companys case is a
judgment rendered per incuriam and does not lay down good
law.
      28.  For both these reasons, we hold that the judgment of
the learned single Judge dated 07.11.2016 in CRP.Nos.3516
and 3570 of 2016 are per incuriam and does not laid down
correct law.
        29.  In the case in hand, dual purpose of the Rent
Control Legislation is on one hand to safeguard the unlawful
eviction of the tenants and on the other hand the same has to
see to it that tenants do not exploit the landlords by defaulting
in payment of rents and occupying the property when they
have the property of their own.  The fixation of fair rent is only
an incidental issue of the matter and therefore the same is of
no avail and would not impact the eviction of the tenant if the
landlord has been found to be in need of the premises and the
tenant is found to have own premises as well as the tenant
having defaulted in payment of rents as has been found on all
three grounds in the present matter.
        30.  In view of the above, we hold in the present reference
that,  the Rent controller Court would continue to have
jurisdiction, in spite of fixation of fair rent of the premises at
any amount more than Rs.3,500/-, if the rent of the premises
when eviction proceedings were filed was less than Rs.3,500/-
.
      31.  The reference is answered accordingly.
      32.  List the petition before the Roster Bench for disposal
as per law.
___________________________________     
JUSTICE SURESH KUMAR KAIT.     
__________________________________     
JUSTICE D.V.S.S.S.SOMAYAJULU.     
Date :  10 -11-2017

mere failure to display proper anticipation of escaping of prisoner from custody in transport , not amounts to negligence or irresponsiblity or lack of devotion of work = the respondent was disabled from guarding the remand prisoner properly as the entrustment of additional duty of handling the battery evidently made him board the crowded bus from the rear side. - Department has not attributed any complicity with the remand prisoner to facilitate her escape or any mala fide intention on the part of the respondent in this regard.Therefore, in our opinion, at best, the respondent can be said to have failed to display proper anticipation and by no means he can be said to be negligent or irresponsible or displayed lack of devotion to duty amounting to misconduct warranting levy of any punishment. = In view of the interim order of this Court suspending the operation of the order of the Tribunal all through the pendency of the writ petition, the respondent could not reap the fruits of his success before the Tribunal. In our opinion, the maxim actus curiae neminem gravabit an act of the Court shall prejudice no man, is squarely attracted to the facts of this case. Therefore, the respondent is entitled to be compensated for the sufferings he and his family members have undergone at least from the time the respondent succeeded before the Tribunal.- Accordingly, the writ petition is dismissed in the following terms: (i) The order of the Tribunal is confirmed; (ii) The respondent shall be forthwith reinstated into service with continuity of service and other attendant benefits, including payment of 50% of basic pay from the date of removal as directed by the Tribunal; (iii) The petitioners shall promote the respondent according to his entitlement had he been continued in service, and pay the salary along with the attendant benefits and back wages attached to the promotional post with effect from the date of his promotion; (iv) The petitioners shall pay interest at the rate of 9% per annum to the respondent on the arrears of salary and other monetary benefits which fell due on the date of disposal of the O.A. by the Tribunal till the date of payment. (v) The respondent is awarded costs of Rs.25,000/- (Rupees Twenty Five Thousand only)

THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY AND THE HONBLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI                       

Writ Petition No.10333 of 2004

15-12-2017

Government of Andhra Pradesh Rep. by its Secretary Home Department Secretariat, Hyderabad and others   Petitioners 

M.D. Wahajuddin  Respondent   

COUNSEL FOR THE PETITIONERS: G.P. for Services (TS)     

COUNSEL FOR THE RESPONDENT: Mr.J.Sudheer         


THE COURT MADE THE FOLLOWING:       

JUDGMENT: (per the Honble Sri Justice C.V. Nagarjuna Reddy) 

        A victim of fate or that of the circumstances, the respondent,
who had a smooth sail as a Police Constable, his whole world
turned topsy-turvy, overnight.  Unsuspecting that 06.12.1989
would be the day, which would push him along with his family into
the dark days, he went on his duty as usual.  As his ill fate would
have it, he was entrusted with the work of escorting a young but
wily under-trial prisoner, by name, Gandikota Lachamma, W/o.
Venkataiah, aged 25 years, from Jangaon Police Station to Central
Prison, Warangal, along with another Police Constable (P.C.502).
2.      The respondent along with P.C.502 took the remand prisoner
from Jangaon Police Station to Warangal.  After alighting at
Hanamkonda, they have boarded the local bus to reach the Central
Prison.  Before they reached the destination, the remand prisoner
has quietly given a slip and escaped from the scene.  Panicked, the
respondent made a frantic search for tracing out the prisoner but in
vain.  Twenty-four hours thereafter, not left with any other option,
he lodged a report at the Hanamkonda Police Station.  Registration
of First Information Report notwithstanding, the prisoner was not
to be traced.  P.C. No.502 (since deceased) nowhere in picture
from 06.12.1989 reported back to duty only on 09.12.1989.
3.      Departmental proceedings were initiated against the
respondent for his alleged lethargic attitude, gross negligence and
irresponsible behaviour.  By order dt.18.12.1989 petitioner No.4
has kept the respondent under suspension.  On 26.05.1990, a single
charge was framed and an enquiry officer was appointed for
holding enquiry.  During the enquiry, the Presenting Officer has
produced seven witnesses  P.Ws.1 to 7 on the departments side.
The respondent  delinquent has produced D.Ws.1 to 3 on his
side.
4.      The defence of the respondent is briefly stated hereunder.
When he was instructed to escort the woman prisoner, the
respondent has expressed that it is desirable to have a woman
constable as escort and handcuffs may be provided to secure the
prisoner during the transit, but, however, his request was not
heeded to and as a result the prisoner had to be escorted by himself
and PC 502, another Male Constable, without handcuffs.  That as
per the instructions of the Head Constable (HC 468)  P. Jayapal
Reddy, a battery was handed over to the respondent for handing
over the same to the Inspector (Communications), Warnagal.  That
in order to handover the said battery, they alighted the bus at RTC
Cross Road at Hanmakonda, that from there the respondent went 
to District Police Office (DPO), Warangal, to handover the battery
to the Inspector (Communications) Warangal and that meanwhile
PC.502 took the prisoner to local bus stop at Petrol Bunk.  That by
the time he returned after handing over the battery, PC.502
boarded the local bus with the prisoner from front door, that as he
reached the bus stop at the last moment and the bus was moving,
he had to board the same from the rear side, and that as the bus
was overcrowded, he was unable to go to the front side where PC
502 along with the woman prisoner were staying.  When the bus
stopped at the Thousand Pillar Temple, PC 502 informed him
about the escape of the prisoner.   It is his further plea that the
Police concerned have acted contrary to the established practice of
entrusting the woman prisoner to male constables for escort duty
without even providing handcuffs and that added to this violation,
the respondent was burdened with an extra duty of carrying a
battery, but for which there would not have been a possibility of
the respondent being away from the prisoner while travelling in the
bus.
5.      Though P.W.1  H.C. 468 denied the stand of the
respondent that the latter has made a request to send a woman
escort or provide with handcuffs and also the handing over of
battery, on appreciation of oral and documentary evidence, the
enquiry officer has rendered a clear finding to the effect that the
respondent deserves a benefit of doubt on the above aspect.  The
enquiry officer also while commenting on the conduct of PC.502 in
not reporting the matter to the Police Station or trying to trace the
prisoner, rendered a finding that the respondent made efforts to
trace the woman prisoner.  On a holistic appreciation of the
evidence, the enquiry officer observed that despite the evidence
adduced by the Department tending to prove the charge levelled
against the respondent, he is left with no option other than giving
benefit of doubt to the respondent.  The only observation made
against the respondent by the enquiry officer is that though the bus
was overcrowded, it is the primary duty of the respondent to meet
PC 502 and the lady prisoner in the bus and escort her in proper
way.  Based on this observation, the enquiry officer held that the
charge against the respondent was partly proved beyond reasonable
doubt.
6.      On consideration of the report, petitioner No.4 passed order
on 18.8.1992.  In his order he has stated that after agreeing with the
findings of the enquiry officer, he has sent a copy of the enquiry
report (termed as Minutes) drawn by the enquiry officer and that
he has considered the representation received from the respondent.
As regards the plea of the respondent that no woman Police
Constable was deputed, the same was rejected by observing that
woman constable will be deputed wherever they are available.
With respect to handcuffs, respondent No.4 observed that they are
not necessary to escort an ordinary woman criminal.  Considering
the plea that the respondent ought not to have been given any
other job, petitioner No.4 held that the prisoner had not escaped
during the period when the respondent went to the DPO at
Warangal to handover the battery, but she has escaped when the
respondent was present in the bus.  While holding that the
respondent along with PC 502 (who was no more) are responsible
for the escape of the prisoner, petitioner No.4 has observed that
Police Constables who cannot escort even an ordinary woman 
prisoner is of no use in Police Department and accordingly he
removed the respondent from service by treating the suspension
period from 27.12.1989 to 31.7.1991 as not on duty.
7.      While considering the appeal filed by the respondent against
the order of his removal, petitioner No.3 repelled the defence of
the respondent by observing that the plea taken by the respondent
that the woman prisoner had made her escape in City Bus, is not
tenable as it is only an afterthought, since the respondent while on
escort duty of an under trial prisoner had no business to break the
journey from Jangaon Police Station to Central Prison, Warangal,
even if he had any other work and that nothing prevented him
from handing over the battery after handing over the prisoner at
the Prison and he accordingly rejected the appeal.
8.      In his order dt.30.7.1993, in the revision filed by the
respondent, petitioner No.2 held that the evidence recorded in the
oral enquiry clearly established that the respondent did not either
ask to be assisted with the services of a woman Police Constable or
with handcuffs and that no other duty, like carrying a battery, was
allotted to him. He has also observed that the possibility of ulterior
motive on the part of the respondent in raising the plea of carrying
a battery, without being assigned with any such duty while being
engaged on escort duty, is clearly perceived.  As regards the plea of
the respondent that he could not board the bus along with PC 502
and the woman prisoner, as he had to entrust the battery in the
DPO, Warangal, petitioner No.2 has adopted the same reasoning 
as that of petitioner No.3.  Accordingly, petitioner No.2 has
dismissed the revision petition.  Assailing these orders, the
respondent has filed O.A. No.6900 of 1993 before the Andhra
Pradesh Administrative Tribunal, Hyderabad.
9.      On a detailed consideration of the case, the Tribunal held
that in the light of the finding of the enquiry officer that benefit of
doubt has to be given to the respondent, he cannot be held guilty
of negligence of duty and consequently he was not liable to be
awarded with the penalty of removal from service.  While holding
that the respondent is entitled to all the consequential benefits,
including salary and also other attendant benefits like application of
revision of pay scales etc., for the period of his absence from
service, the Tribunal has directed payment of 50% of his basic pay
with other allowances from the date of his removal from service,
and to reinstate him into duty within seven days from the date of
receipt of the order.  This order has been challenged by the
petitioners in the present writ petition.
10.     As far back as 23.06.2004, a Division Bench of this Court
while admitting the writ petition, granted interim suspension which
has been continuing all these years, and as a result of the interim
order the respondent is not reinstated.
11.     We have heard the learned Government Pleader for Services
(TS) and Mr. J. Sudheer, learned counsel for the respondent.
12.     We would like to consider the orders passed by petitioner
Nos.4, 3 and 2 separately in sequence with reference to the enquiry
report.  A perusal of the order of removal passed by petitioner
No.4 would show that he has agreed with the findings of the
inquiry officer.  While not specifically rejecting the stand of the
respondent on three vital aspects, namely, (i) that in spite of his
request, a woman constable was not provided as escort; (ii)
handcuffs were not provided and (iii) entrustment of additional
work of carrying battery, petitioner No.4 tried to justify each of
these aspects.  According to him, two Police Constables are enough
to escort a very normal woman accused and to escort an ordinary
woman criminal handcuffs are also not necessary.  As regards the
entrustment of the duty of carrying a battery, as noted earlier, he
has opined that the escape has not taken place during his absence
in the course of entrustment of battery.
13.     In our opinion, the approach of petitioner No.4 is wholly
unrealistic.  Being an officer holding the position of Superintendent
of Police, he failed to understand that howsoever strong the male
police escorts may be, it is wholly unsafe to entrust a lady prisoner
to the custody of male constables as they were not expected to
handle the former physically.  Obviously faced with this delicacy,
the respondent appeared to have requested for either providing
with a woman escort constable or at least with handcuffs, so that
the possibility of the prisoner escaping could be avoided.  When
male constables stand as escort, even if they find a woman prisoner
escaping they are not expected to prevent her physically from
escaping.  Similarly, if handcuffs had been provided, the prisoner
would not have escaped.  The observation that only when woman
constable is available she will be sent as an escort, defies any logic
or reasoning.  The administration cannot be absolved of its
obligation, merely because a Woman Constable was not available.
Petitioner No.4 has not examined the problem with the sensitivity
which the situation demanded.  This lack of insensitivity is reflected
from the observation that the Police Constables who cannot escort
even an ordinary woman prisoner are of no use in the Police
Department.
14.     A perusal of the record shows that the woman prisoner is not
an ordinary prisoner.  She was caught red-handed while stealing
cash of Rs.604/- from the bag of an RTC Conductor while he was
on duty on 04.12.1989 for which Crime No.189/89 for the offence
under Section 379 IPC, at Police Station, Jangaon, was registered
and she was remanded by the Judicial Magistrate of First Class,
Jangaon, in connection with which she was being escorted from
Jangaon Police Station to Warangal Central Prison. It is thus
obvious from these facts that the under trial prisoner appeared to
be an expert in committing thefts while travelling in buses.  Such a
person is expected to have perfected the art of easily escaping while
travelling in buses.  Despite this fact, the remand prisoner was
treated as an ordinary prisoner and neither a woman escort was
provided, nor at least hand cuffs were made available to the two
male Police Constables sent on escort duty.
15.     In our opinion, it is the Police at Jangaon Police Station, who
are primarily negligent in handling the woman prisoner.  It is a
matter of surprise that petitioner No.4 instead of taking action
against the persons at the Police Station for their negligence was
uncharitable in condemning the respondent.  The approach of
petitioner No.4 in dealing with the plea of the respondent
regarding the entrustment of another duty is also wholly unfair.
When a constable is entrusted with the duty of escorting a prisoner,
it is inconceivable that he was asked to handle another job
simultaneously.  Here again, negligence on the part of the persons
at the helm of affairs in Jangaon Police Station is writ large.
Instead of reaslizing the fundamental flaw in the approach of the
Police at Jangaon Police Station in entrusting an additional duty
(indeed it is a heavy burden), to the respondent, petitioner No.4
has chosen an easy route in pointing out that the escape has not
taken place during the absence of the respondent.  This finding
betrays lack of comprehension on the part of petitioner No.4.  It is
the stand of the respondent, which is virtually accepted by the
enquiry officer, that because of the entrustment of the additional
duty, he had to board a moving local bus and as the bus was
overcrowded, he could not get into the bus through front door,
through which PC 502 along with the remand prisoner entered the
bus and that because of the said reason he could not reach the
front portion where the other Constable along with the prisoner
were staying during the travelling. But for the entrustment of the
additional duty, such a situation would not have developed at all.
Therefore, petitioner No.4 has failed to examine the case from a
proper and correct perspective and made a wholly light hearted
approach in rendering the findings oblivious of the ground realities
and the facts and circumstances.
16.     Coming to the order passed by respondent No.3, his finding
that the plea of the respondent that the woman prisoner had
escaped was an afterthought is contrary to the findings and
conclusions of the enquiry officer.  He has ignored the fact that the
disciplinary authority has agreed with the findings of the enquiry
officer.  His reasoning that the respondent has no business to break
the journey from Jangaon Police Station to Central Prison,
Warangal, also overlooks the conduct of the Police at Jangaon
Police Station in entrusting the additional duty to the respondent
while he was on escort duty. Instead of addressing this aspect,
petitioner No.3 has added his own perceptive to the issue which, in
our opinion, is wholly unsustainable.
17.     As regards the order of petitioner No.2, he far too exceeded
his jurisdiction in arriving at his own conclusion based on evidence
contrary to the findings of the enquiry officer both on the aspects
of the request of the respondent to send a woman escort, providing
handcuffs and entrustment of additional duty of carrying the
battery.  Being the revisional authority, it does not fall within its
jurisdiction to reappreciate the evidence and differ with the
findings of the enquiry officer, though the disciplinary authority has
accepted the findings of the enquiry officer.
18.     As rightly held by the Tribunal when the respondents
request for providing a woman escort or at least handcuffs was
rejected, and added to that he was entrusted with the additional
responsibility of carrying a battery which was wholly unwarranted,
he cannot be held guilty of negligence of duty.
19.     It is trite that negligence connotes, carelessness, laxity,
irresponsibility, breach of duty etc.  Ones failure to make proper
anticipation of an event cannot be termed as negligence.  Every act
of lack of anticipation cannot be perceived as negligence, for, in a
given circumstance, if a person is disabled from acting with
diligence required to handle a situation, he cannot be called
negligent.
20.     Similarly every act of negligence does not constitute
misconduct.  The Strouds Judicial Dictionary described
misconduct as misconduct arising from ill motive, acts of
negligence, errors of judgment, or innocent mistake, do not
constitute such misconduct (emphasis added).  After referring to
and relying upon the judgments in Disciplinary Authority-cum-Regl.
Manager v. Nikunja Bihari Patnaik , Government of Tamil Nadu v. K.N.
Ramamurthy , Inspector Prem Chand v. Govt. of NCT of Delhi  and SBI v.
S.N. Goyal , the Supreme Court in Ravi Yashwant Bhoir v.  Collector
held that mere error of judgment resulting in doing of negligent act
does not amount to misconduct.  The Court further held:
     Further, the expression misconduct has to be construed and understood in
reference to the subject-matter and context wherein the term occurs taking into consideration
the scope and object of the statute which is being construed. Misconduct is to be measured in
the terms of the nature of misconduct and it should be viewed with the consequences of
misconduct as to whether it has been detrimental to the public interest.

21.     On the admitted facts of the present case, the respondent
was disabled from guarding the remand prisoner properly as the
entrustment of additional duty of handling the battery evidently
made him board the crowded bus from the rear side.  The
respondent does not appear to have anticipated the possibility of
the woman prisoner escaping when another male constable on  
escort duty was accompanying her.  Therefore, in our opinion, at
best, the respondent can be said to have failed to display proper
anticipation and by no means he can be said to be negligent or
irresponsible or displayed lack of devotion to duty amounting to
misconduct warranting levy of any punishment.  It is also worthy to
note that the Department has not attributed any complicity with
the remand prisoner to facilitate her escape or any mala fide
intention on the part of the respondent in this regard.
22.     This leaves us with one final question, i.e., whether mere
dismissal of the writ petition filed by the State would serve the ends
of justice?  Our answer to this question is an emphatic No.
From the record it is seen that when the order of removal was
passed, the respondent was about 32 years of age, at the prime of
his career and life.  It took a decade for him to succeed before the
Tribunal.  The State has taken almost two years to file the present
writ petition and a non-speaking interim suspension order of this
Court passed on 23.06.2004 continued to remain in force till today.
The cumulative effect of all this proved disastrous for the
respondent and his family.  For the last 25 years the respondent is
out of service.  Even if he is reinstated now, he will be reaching the
age of superannuation in a couple of years.  The sufferings the
respondent and his family members might have undergone are 
unfathomable.  At the prime of his life, the respondent was
deprived of his employment and his family members, of an
otherwise comfortable living with proper educational, health and
other basic needs of life.  When we put a question to ourselves as
to whether anyone can bring back the precious time which the
respondent and his family members have lost and undo the
sufferings they have undergone, our answer is an obvious No.
The State is responsible to a large extent for the grave injustice
perpetrated on the respondent and his family.  Even if the
disciplinary authority was indifferent in handing out the removal
order, and if not the appellate authority, at least the revisional
authority should have displayed sobriety by interfering with the
extreme punishment and exonerating him, or at least by imposing
some minor penalty.  At least after the respondent succeeded
before the Tribunal, wisdom should have dawn on the State and its
functionaries.  Without realizing the vexatious nature of the
litigation and the futility of pursuing such litigation, they went
ahead by filing the writ petition and securing an order of interim
suspension, denying reinstatement to the respondent.  Had the
functionaries of the State at the helm of affairs not viewed the
respondent as an adversary - in the sense that two private parties to
a litigation treat each other, the owes of the respondent and his
family would have ended at least in the year 2002 after dismissal of
the case by the Tribunal.  But, that was not to be.  In view of the
interim order of this Court suspending the operation of the order
of the Tribunal all through the pendency of the writ petition, the
respondent could not reap the fruits of his success before the
Tribunal.  In our opinion, the maxim actus curiae neminem gravabit 
an act of the Court shall prejudice no man, is squarely attracted to
the facts of this case.  Therefore, the respondent is entitled to be
compensated for the sufferings he and his family members have
undergone at least from the time the respondent succeeded before
the Tribunal.
23.     Accordingly, the writ petition is dismissed in the following
terms:
(i)     The order of the Tribunal is confirmed;
(ii)    The respondent shall be forthwith reinstated into
service with continuity of service and other attendant
benefits, including payment of 50% of basic pay from
the date of removal as directed by the Tribunal;
(iii)   The petitioners shall promote the respondent according
to his entitlement had he been continued in service, and
pay the salary along with the attendant benefits and
back wages attached to the promotional post with
effect from the date of his promotion;
(iv)    The petitioners shall pay interest at the rate of 9% per
annum to the respondent on the arrears of salary and
other monetary benefits which fell due on the date of
disposal of the O.A. by the Tribunal till the date of
payment. 
(v)     The respondent is awarded costs of Rs.25,000/-
(Rupees Twenty Five Thousand only).
     The petitioners shall complete the entire exercise
referred to in the aforementioned paragraph within two
months from the date of receipt of this order.
     As a sequel to dismissal of the writ petition, interim
order dt.23.06.2004 passed in W.P.M.P. No.13113 of 2004 
shall stand vacated and the said application shall stand
sposed of as infructuous.
__________________________   
C.V. NAGARJUNA REDDY, J     
_____________________________   
KONGARA VIJAYA LAKSHMI, J     
15-12-2017

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