Telangana High Court
D. Janaki Rama Rao vs Govt. Of Ap. on 21 March, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(Tr).No. 1964 of 2017
ORDER:
In this writ petition, the petitioner is challenging the impugned proceedings in RC.No.A1/SPF/90/2013, O.O.No.335/13, dated 25.04.2013 and to quash the same in so far as the condition that the petitioner is not entitled for backwages as stipulated in Government Circular Memo No.32419/838/FR-1112003, dated 19.06.2004, as illegal, arbitrary and in violation of principles of natural justice and consequently to direct the respondents to release the salary to the petitioner for the period during which the petitioner was granted invalid pension and till the date of reinstatement i.e., from 05.08.2011 to 06.05.2013 with all consequential benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the file of the present writ petition are that the petitioner was appointed as a Junior Assistant in the respondent No.2 office in the year 1995. Subsequently, he was promoted as a Senior Assistant and 2 TMD,J W.P(Tr).No. 1964 of 2017 was working as such. In the month of June, 2005, the petitioner was attacked with paralytic stroke and he was bedridden for two months. Thereafter, on recouping his health, he joined duty on 01.09.2005 by submitting a fitness certificate issued by the concerned doctor of Yashoda Hospital. The petitioner was permitted to join duty and was performing his duties. However, he received a call notice dated 20.05.2011 from the Superintendent, Gandhi Hospital, Secunderabad, to appear before the Medical Board to conduct medical examination by the Regional Medical Board and he was directed to report on 31.05.2011 and the petitioner appeared before the Regional Medical Board on 31.05.2011 for medical examination. Thereafter, vide proceedings in Rc.No.A1-12/SPF/2011, O.O.No.A-560/2011, dated 05.08.2011, the petitioner was granted invalid pension under Rule 37(1) of A.P.Revised Pension Rules, 1980 and that the petitioner was held to be not-fit for the job as per the report of Regional Medical Board dated 31.05.2011.
3. Learned counsel for the petitioner submits that the petitioner was not given any notice nor was any 3 TMD,J W.P(Tr).No. 1964 of 2017 explanation called for with regard to the report of the hospital, but straightaway, the order of invalid pension was passed. Challenging the same, the petitioner has filed O.A.No.7487 of 2011 before the APAT and the impugned order was suspended and when the interim order was not complied with by the respondents, the petitioner filed Contempt Case i.e., C.A.No.1533 of 2011 and the respondents have filed the VMA No.1902 of 2011 seeking vacation of the interim orders. The Tribunal had set aside the impugned order dated 05.08.2011 and directed the respondents to shift the petitioner to some other post from the post of Senior Assistant with same pay scale and service benefits and if it is not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier and pass appropriate orders thereon within a period of four weeks from the date of receipt of a copy of the order. Subsequently, when the orders of the Tribunal were not complied with, the petitioner had filed C.A.No.1675 of 2012 and on a direction for personal appearance of the respondent No.2, orders dated 25.04.2013 4 TMD,J W.P(Tr).No. 1964 of 2017 was passed by the respondents reinstating the petitioner into service as an attender and the period of non-employment from the date of the order i.e., 05.08.2011 to the date he joins duty was treated as 'on duty', and also that he will not be entitled for any backwages as stipulated in the Government Circular Memo dated 19.06.2004, on the Principle that "no work, no pay". It is submitted that subsequently, the petitioner was restored as a Senior Assistant by an order dated 27.03.2014 issued by the respondent No.2 as per the instructions of the respondent No.1 vide Memo dated 26.03.2014. Aggrieved by the denial of the backwages from the date of invalid pension i.e., from 05.08.2011 till the date of joining duty in the year 2013, the petitioner approached the Tribunal and thereafter, the case was transferred to High Court and re-numbered as W.P.(Tr).No.1964 of 2017.
4. Learned Government Pleader for home appearing for the respondents, submitted that the respondents have not filed any counter affidavit and he sought time to file the same.
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TMD,J W.P(Tr).No. 1964 of 2017
5. On going through the material on record and particularly the memo which has been referred to in the impugned order for denial of the backwages to the petitioner, this Court finds that the said Circular is not applicable to the facts and circumstances of the case at all and therefore, this Court is inclined to proceed to the dispose of the matter as under:
6. By way of the impugned order, the respondents have denied the backwages from the period of invalid pension till the date of joining to duty. In the Circular Memo dated 19.06.2004 referred to in the impugned orders, the subject itself mentions that it is in relation to the payment of consequential benefits i.e., backwages for the period of suspension in case of acquittal in Court cases and that the said clarification instructions are issued on the basis of the judgment of the Hon'ble Supreme Court of India. On further reading of the Circular, it is noticed that the Hon'ble Supreme Court in the case of Krishna Kanth Raghunath Bibhavnekar Vs. State of Maharashtra & Others in Civil Appeal No.1868 of 1977 was dealing with the case of a 6 TMD,J W.P(Tr).No. 1964 of 2017 person, who was placed under suspension pending disciplinary proceedings and the issue was as to how suspension period was to be treated pending trial even after acquittal. In view of the various other judgments of the Hon'ble Supreme Court, the department had directed the authorities to consider the judgments while deciding the issue of suspension period pending departmental or judicial proceedings.
7. The facts of the case before this Court are clearly distinguishable from the facts under which the said Circular has been issued. The said circular would apply only to cases where the delinquent employee was placed under suspension pending disciplinary or judicial proceedings, whereas in the present case, the petitioner was not under suspension, but he was not allowed to join duty on the ground that there was invalid pension and subsequently, due to judicial order of the Court, he has been re-instated into service, therefore, the Principle of 'no work, no pay' would not apply to the case on hand. Therefore, the impugned order dated 25.04.2013 to the extent of denying the backwages alone is set aside and the 7 TMD,J W.P(Tr).No. 1964 of 2017 respondents are directed to pay the backwages to the petitioner for the period from 05.08.2011 to 06.05.2013 with Simple Interest @ 6% per Annum from 06.05.2013 till the date of payment.
8. Accordingly, this writ petition is partly allowed. There shall be no order as to costs.
9. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 21.03.2024 bak