Order vs The Action Of The
2023 Latest Caselaw 238 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

            WRIT PETITION (AT) No.298 of 2021

ORDER :

This petition is filed under Article 226 of the

Constitution of India for the following relief:-

"...to call for the records relating to proceedings Rc.No.2581/09-E3 dated 02.04.2011 as cancelled by the Memorandum Rc.No.4652/11-E1 dated 28.01.2014 which was again cancelled in Memorandum Rc.No.4652/11-E1 dated 11.08.2014 by the 1st respondent and set aside the same in so far as the treating the period from 9.10.2002 to 8.10.2005 as on duty without pay, as illegal, arbitrary, unjust, contrary to fundamental rules and contrary to Article 14 of the Constitution of India and consequently direct the 1st respondent to treat the period from 9.10.2002 to 8.10.2005 as on duty with pay and with all consequential benefits and pass such other order or orders......."

2. Brief facts of the case are that the petitioner is

presently working as Assistant Textile Designer. He is

permanent Government employee with designation as

Assistant Textile Designer, Office of the Commissioner of

Handlooms and Textiles, on Deputation as Office Manager

in A.P. Power Looms Service Centre, Hyderabad was

transferred to Sircilla, Karimanagar instead of repatriating

him to the present office of the Commissioner of Handlooms

and Textiles, Hyderabad. It is stated that as per

Government Memo dated 01.08.2022 all the permanent

Government employees are to be repatriated to parent office.

The action of the respondents in repatriating the other

Government employee to Head Office and transferring the

petitioner to sub centre at Sircilla is in violation of Article 14

of the Constitution of India. As the petitioner did not join at

Sircilla, the 1st respondent has issued Charge Memo vide

RcNo.12376/2003-E3, dated 25.10.2004. Thereafter, the

petitioner has submitted reply making several illegalities like

nonpayment of salaries, TA, advance etc and also stating

that without giving reasonable opportunity the disciplinary

authority has passed the impugned speaking orders dated

8.10.2005 terminating the petitioner from service.

Therefore, the petitioner has preferred O.A No.5798 of 2006

before the A.P. Administrative Tribunal at Hyderabad and

the Tribunal has allowed the said O.A. setting aside the

charge memo, dated 25.10.2004 and consequential removal

order, dated 8.10.2005 issued by the 1st respondent. It was

also stated that with respect to regularization of period, the

petitioner, from the date of relieving till the date of

dismissal, the petitioner is at liberty to file a representation

to the respondents. From the date of dismissal till the date

of O.A was ordered and reinstated the period shall be

treated as On Duty without regular pay, but the

respondents are directed to pay Rs.50,000/- for that period.

It was also stated that the amount of Rs.50,000/- would be

paid to the petitioner forthwith by re-inducting him into

service by giving a fresh posting order. Being not satisfied

with the same, the department has filed WP No.25121 of

2008 before this Court and this Court granted stay of

payment of Rs.50,000/- vide order dated 15.11.2008 in

WPMP No.32793 of 2008 in WP No.25121 of 2008. Though

the petitioner was reinstated into service and joined the

duty, the respondents have not considered the dismissal

period and could not be regularized as „Duty‟. Hence the

present writ petition has been filed.

3. Though this Court vide order dated 11.11.2022 has

passed conditional order that the respondents were directed

to comply with the Rule 12(1) of the Writ Rules and also

directed to file counter along with leave petition explaining

the delay causing in filing counter, the respondents did not

comply the order of this Court. Hence, the right to file

counter affidavit is forfeited vide order dated 06.12.2022.

4. Heard Sri D. Rama Krishna, learned counsel

appearing for the petitioner and learned Government Pleader

for Services-I appearing for the respondents.

5. During hearing, this Court observed that though

the respondents have not treated the dismissal period as

„Duty‟, the petitioner has preferred another OA No.7473 of

2013 before the A.P. Administrative Tribunal at Hyderabad

and the Tribunal vide order dated 23.10.2013 has granted

interim orders, which reads as under:

"pending further orders, the respondents No.2 and 3 are directed to consider the reply submitted by the respondent No.1 in October, 011 in respect of the bill dated 8.9.2011 within a period of four weeks from the date of receipt of a copy of the order".

In pursuance of the same, the Government directed

the respondents to examine the same as per the instructions

issued in Memo dated 26.02.2013 and give suitable reply.

6. As seen from the proceedings in Rc.No.2581/09-

E3, dated 02.04.2011, it was mentioned that Sri B.Radha

Krishna Murthy i.e., the petitioner herein is reinstated into

service and posted in the Office of the Director H&T &

DCAEP's A.P., Hyderabad as Asst. Textile Designer, subject

to the result of the writ petition which is pending before this

Court and also stated that as regard to the regularization of

period from the date of dismissal to date of reinstatement

(from 09.10.2005 to 21.11.2008) is also treated as duty

period without pay as ordered by APAT, subject to the

outcome of the Writ Appeal pending before this Court and on

a perusal of the consequential proceedings dated

28.01.2014 issued by the 1st respondent, it was stated that

the orders of fixation of pay and release of notional

increments to Sri B. Radha Krishna Murthy, from 9.10.2005

to 21.11.2008 issued vide this office prog. RcNo.4652/2001-

E1 dated 24.05.2011 are reviewed in terms of the Govt.

instructions issued in the reference 2nd cited, and he is

informed that since the appeal in WPMP No.32793/2008 in

WP No.25121/2008 is pending before the Hon‟ble High

Court of AP., he is not eligible for regularization of the

dismissal period as „duty‟ with the consequential benefits,

till the disposal of the Appeal pending before the High Court

of AP., Hyderabad.

7. On perusing the entire material available on record

and on hearing the submission of learned counsels for both

the sides, this Court observed that, it is an admitted fact

that the petitioner was reinstated into service vide office

proceedings dated 20.11.2008 and posted to work in the

office of the Director of H&T and DCAEPs, Hyderabad and

the petitioner joined the duty on 22.11.2008. Thereafter, the

petitioner has filed OA No.1107/2011 before the A.P.

Administrative Tribunal seeking a direction to pass

appropriate orders for considering his request for

regularization of the period from 08.10.2002 to 8.10.2005

and from 8.10.2005 to 21.11.2008 and the same was

disposed of vide order dated 03.03.2011 directed the

respondents to pass appropriate orders within a period of

two weeks from the date of receipt of a copy of that order.

Accordingly, the services of the petitioner were regularized

treating the period from the date of relief to dismissal i.e.,

from 9.10.2002 to 8.10.2005 as duty period without pay and

the period from the date of dismissal to date of

reinstatement i.e., from 9.10.2005 to 21.11.2008 also as

duty period without pay as order by the Tribunal, subject to

the outcome of the WP No.25121 of 2008 which is pending

before this Court.

8. This Court further observed that the Director HT &

AEPs in his proceedings dated 28.01.2014 reviewed the

orders of fixation of pay and release of notional increments

to the petitioner for the period from 9.10.2002 to 8.10.2005

and from 9.10.2005 to 21.11.2008 issued in terms of Govt.

instructions vide proceedings dated 24.05.2011 and the

petitioner was informed that since WP is pending before this

Court, the petitioner is not entitled for regularization. It is

also observed that as per the Government Memo dated

28.07.2014, it was clearly mentioned that there is a flaw in

the judgment with respect to treating the period as duty

without pay as once the period is regularized as duty the

employee would be automatically entitled to full pay and

allowances. There are many such cases in which employees

later approached the courts for full payment for the duty

period. It clearly discloses that the Government is at wrong

in so far not treating the period as not on duty. Therefore,

the order treating the period as on duty without pay is

declared as illegal and arbitrary and hence, the impugned

proceedings are liable to be set aside.

9. Accordingly, the Writ petition is allowed setting

aside the impugned proceedings in Rc No.2581/09-E3

dated 02.04.2011 as cancelled by the Memorandum in Rc

No.4652/11-E1, dated 28.01.2014 which was again

cancelled in Memorandum in Rc.No.4652/11-E1, dated

11.08.2014 issued by the 1st respondent. Further the

respondents are directed to treat the period of the petitioner

from 9.10.2002 to 8.10.2005 as „On Duty‟ and further

directed to pay all the consequential benefits as per his

entitlement, within a period of eight (08) weeks from the

date of receipt of a copy of this order. No order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :        19 -01-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




        WRIT PETITION (AT) No.298 of 2021




               Date :   19.01.2023




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