HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.20101 of 2021
ORDER:-
The present Writ Petition is filed questioning the action of the
respondents in not considering the representation dated 09.02.2021
submitted by the petitioner, wherein he requested to treat the suspension and dismissal periods as on duty and to pay all consequential benefits to him, as illegal and arbitrary.
Heard Mr.M.Krishna Rao, learned counsel for the petitioner and Mr.Metta Chandra Sekhar Rao, learned Standing Counsel for APEPDCL appearing for respondents 2 to 4.
The brief facts of the case, as narrated in the affidavit, are as follows:-
The petitioner was appointed as Helper on 03.02.1993 and thereafter promoted as Assistant Lineman in the year 1998. He was placed under suspension on charges of corruption and later dismissed from service on the ground of conviction in C.C.No.19/2002 on the file of Special Judge for SPE & ACB Cases, Vijayawada. Aggrieved by the said judgment, the petitioner filed Crl.A.No.1610 of 2005 before the erstwhile High Court of Andhra Pradesh at Hyderabad and by an order dated 14.12.2013, the said appeal was allowed setting aside the judgment in C.C.No.19/2002.
In view of the same, the petitioner submitted representations dated 17.01.2014 etc., to the respondent authorities requesting them to reinstate him into service. As there was no response, the petitioner filed W.P.No.38824 of 2014 and the petitioner was directed to be reinstated into service. As the said orders were not implemented, the petitioner filed 2 NJS, J W.P.No.20101 of 2021 Contempt Case No.708 of 2015 and after filing of the same, the respondents issued reposting orders on 23.05.2015. However, the petitioner has not been paid the consequential benefits and back wages etc., The petitioner was promoted as Lineman on 05.06.2019 and his seniority was not counted though the criminal case instituted against him ended in acquittal. Under the said circumstances, the petitioner made a representation dated 09.02.2021 to the respondents to treat the suspension period and dismissal period as on duty and to pay all consequential benefits. However, the respondents have not taken any steps on the said representation. Hence, the present Writ Petition.
The learned counsel for the petitioner while reiterating the contentions raised in the Writ Petition inter alia submits that as the criminal proceedings initiated against the petitioner were set aside by virtue of orders in Crl.A.No.1610 of 2005, dated 14.12.2013, which has become final, the period of suspension as also dismissal period has to be treated as on duty and the respondents though reinstated the petitioner into service, have not taken any steps to regularize the said period, as on duty and thereby the petitioner is seriously prejudiced.
The learned counsel for the petitioner while relying on the judgment of the Hon'ble Supreme Court in K.V.Jankiraman Vs. Union of India1 submits that when an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. He submits that the normal rule of "no work no pay" is not applicable to such cases, where the employee although he is willing 1 1991 AIR 2010 3 NJS, J W.P.No.20101 of 2021 to work is kept away from work by the authorities for no fault of his. Learned counsel also relies on F.R.No.54(1)(a) and (b) of Fundamental Rules and contends that the respondent authorities are required to make a specific order regarding pay and allowances in terms of said Rule since the petitioner was reinstated as a result of the orders passed in the appeal filed by him. The learned counsel also submits that the petitioner, in fact, made a detailed representation on 09.02.2021 to the 3rd respondent and though more than six months have been elapsed, the same did not yield any positive response and therefore the petitioner is constrained to file the present Writ Petition seeking appropriate directions.
On the other hand, Mr.Metta Chandra Sekhar Rao, learned Standing Counsel appearing for respondents on the basis of averments made in the counter affidavit submits that as per the APSEB Service Regulations as adopted by APEPDCL, the period of suspension shall be treated as leave and the petitioner will not be entitled to anything more. Referring to Memo, dated 14.05.1990 issued by the erstwhile APSEB he further submits that in respect of an employee under suspension, who was dismissed from service on conviction by a Court of Law, but reinstated into service because of acquittal by High Court, the period of dismissal till the date of his joining duty on reinstatement shall be treated as "dies-non" and the earlier period of suspension shall be treated as leave. Accordingly, he submits that the Writ Petition is liable to be dismissed, as the same is devoid of merits.
Though the learned counsel for the petitioner advanced his arguments by placing the reliance on the judgment of Hon'ble Supreme Court, which deserves appreciation, the grievance of the petitioner which prompted him to file the present Writ Petition as seen from the Writ 4 NJS, J W.P.No.20101 of 2021 prayer is inaction on the part of the respondents in considering the petitioner's representation dated 09.02.2021. All the aspects as set out in the Writ Petition including the judgments on which reliance is placed were elaborately stated in the said representation. The matters raised by the petitioner in respect of his claim and the judgments in support of the same are required to be considered by the 3rd respondent and appropriate orders have to be passed by duly taking into account the applicable Service Regulations. In such circumstances, this Court is of the view that it would be appropriate to leave the matter to the 3rd respondent to take necessary action on the petitioner's representation, dated 09.02.2021 instead of examining the merits or otherwise of the matter, in the present Writ Petition.
Accordingly, this Writ Petition is disposed of with a direction to the 3rd respondent to take necessary action on the petitioner's representation dated 09.02.2021 and pass appropriate orders thereon, within a period of eight (08) weeks from the date of receipt of a copy of this order by duly taking consideration all the relevant aspects including applicability of F.R.No.54(1)(a) and (b) of Fundamental Rules, apart from the applicable Service Regulations governing the petitioner. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________ NINALA JAYASURYA, J Date: 20.01.2022 IS 5 NJS, J W.P.No.20101 of 2021 HON'BLE SRI JUSTICE NINALA JAYASURYA Writ Petition No.20101 of 2021 Date: 20.01.2022 IS