P.Yedu Kondalu vs The State Of Telangana
2021 Latest Caselaw 703 Tel

       THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

             WRIT PETITION (TR) No.5999 of 2017
ORDER:

1 This Writ Petition is filed seeking to declare the action of the

second respondent in rejecting the request of the petitioner by

proceedings in Memo No.17962/Admn/DYSO/2011-13, dated

22.8.2015 for counting his entire period of suspension period i.e.

from 16.3.2014 to 25.8.2007 as on duty for the purpose of

seniority and for pay and allowances for the said period as illegal

and arbitrary and contrary to Rule 33 of the A.P. Subordinate

Service Rules and set aside the same and further direct the

respondents to count the said period for all consequential benefits

including pay and allowances.

2 The petitioner asserts that he was appointed as Assistant

Statistics Officer in the office of the second respondent in the year

1989 and presently he is working as Deputy Statistical Officer in

the office of the Chief Planning Officer, Ranga Reddy District.

While so, in the year 1998, as there were some disputes between

the petitioner and his wife, she lodged a complaint against the

petitioner under Section 498-A of IPC, in pursuance of which he

was tried by the learned Additional Judicial Magistrate of I Class,

Hyderabad (East and North) in C.C.No.775 of 1998 wherein he was

convicted for the said offence. Challenging the said conviction he

filed Criminal Appeal No.1 of 2004 on the file of the I Additional

Sessions Judge, Ranga Reddy at L.B. Nagar. While the case is

pending, the second respondent placed the petitioner under

suspension from the date of his conviction i.e.16.12.2003 by the

learned Magistrate, vide proceedings dated 01.3.2004 and was

subsequently dismissed from service from the date of conviction by

another proceedings dated 22.01.2005 of the second respondent.

The petitioner further asserts that the Criminal Appeal filed by him

was also dismissed and challenging the same, he preferred

Crl.R.C.No.49 of 2005 before the High Court, which was allowed by

order dated 09.8.2007 on the ground that the matter was

compromised between the petitioner and his wife. Accordingly, the

conviction and sentence imposed upon the petitioner was set aside

and he was acquitted of the said offence.

It is the grievance of the petitioner that pursuant to the order

of the High Court, he submitted a representation dated 19.8.2007

to the second respondent seeking his reinstatement as he was

acquitted of the offence and accordingly he was reinstated into

service by proceedings dated 25.8.2007. However, after his

reinstatement, the period of suspension and dismissal i.e. from

16.3.2004 to 25.8.2007 was treated as eligible leave, but he was

denied pay and allowances for the said period. The petitioner

submitted a representation to the second respondent on 25.9.2012

to consider his case for pay and allowances for the entire

suspension period by regularizing the gap period as duty period.

But the second respondent by proceedings dated 22.8.2015

rejected the request of the petitioner. Questioning the action of the

second respondent, the petitioner preferred O.A.No.2195 of 2016

before the Administrative Tribunal. As the Tribunal was dissolved,

the said O.A has been transferred to this High Court and

numbered as W.P (TR) No.5999 of 2017.

3 The Director of Economics & Statistics, Government of

Telangana, Hyderabad, filed counter. It is the case of the

respondent that the Government, vide Circular Memo

No.32818/A/521/FR-I/2008 dated 05.12.2008, have issued

instructions regarding regularization of suspension period when an

employee was under suspension / out of service for his

involvement in a private Criminal / Civil case stating as follows:

"In all cases where the Government employee was under suspension / out of service for his involvement in a private Criminal / Civil case, consequent upon his reinstatement into service, the intervening period between the date of suspension and the date of his joining must be treated as 'not duty', as a matter of fact, since the Government is not responsible for his being out of office and he himself is solely responsible for this and he is not entitled for any monetary benefit for this period, and the principle of 'No Work No Pay' is applicable to such cases, irrespective whether they are acquitted in the private criminal / civil cases. However, an amount of subsistence allowance if any already paid to him need not be recovered. Furthermore, in such cases, while regularizing the period of suspension, the competent authority may decide whether the period of suspension is wholly justified or unjustified. If the competent authority decides that the period of suspension is wholly justified, the period of suspension shall be regularized as 'not duty' for all purposes and the pay and allowances for that period should be limited to subsistence allowances already paid. If the employee so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant as per provision under FR.54-B(7). Further, if the competent authority decides that the period of suspension is wholly unjustified, the period of suspension may be regularized as 'on duty' in terms of FR.54-B(3), but in any case the pay and allowances payable to the Government servant for the period of suspension must be limited to the subsistence allowance already paid under FR-53 in terms of FR 54 B (5) as amended in G.O.Ms.No.30, Finance (F.R-II) Dept., dated 15.2.2007.

Further, as per F.R 54-A (2) where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non- compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the pay and allowances payable to the Government servant for the period of dismissal shall be limited to the subsistence allowances already paid under

F.R 53 for the entire period during which the Government servant was not on duty.

Under F.R 54-A (3), provided that back wages to a suspended / dismissed employee cannot be paid as a matter of course in cases where the employee has been acquitted by the courts on benefit of doubt."

The respondent further contended that since the petitioner

was acquitted of the offence not based on merits but he was

acquitted as the case was compromised which is an issue wherein

Government is not a party for it. Hence the dismissal period of the

individual from 26.3.2004 to 25.8.2007 i.e. his date of joining on

re-instatement was treated as eligible leave for all purposes in

terms of FR 54 B (1) vide proceedings dated 13.12.2007. It is

further submitted that the very fact that a compromise was arrived

shows the occurrence of offence. Hence prayed to dismiss the Writ

Petition.

4 The learned counsel for the petitioner submitted that under

FR 54 B, there is a discretion provided for treating such period as

either leave or as not on duty and for pay and allowances taking

into consideration the facts and circumstances of the case. But in

the case on hand though his suspension period was treated as

eligible leave, the respondents excluded such period for the

purpose of counting the seniority and did not pay the allowances.

He further submitted that when the petitioner was acquitted, the

respondents should have restored his original position with all

benefits.

5 On the other hand, the learned Government pleader

submitted that the petitioner was acquitted of the offences by the

Hon'ble High Court not based on merits but only on arriving at a

compromise and that he was not fully exonerated and the whole

suspension period / dismissal period was not treated as duty.

Certain portion of the suspension period was only restored to be

treated as duty as the suspension orders were issued /

communicated three months later and the period from 16.3.2004

to 25.8.2007 was regularized as Eligible leave as per the request of

the petitioner and that unless the suspension / dismissal period is

treated as on duty, the same cannot be counted as duty period for

all purposes as per Rule 54 A & 54-B of F.R and hence the request

of the petitioner to assign notional date of seniority to him with

effect from 22.01.2007 on par with his immediate junior cannot be

considered.

6 The admitted facts of the case are that basing on the

complaint given by the wife of the petitioner he was tried in a

criminal case and ultimately was convicted for the offence

punishable under Section 498-A of IPC. The said conviction was

upheld in appeal. However, in revision the said offence was

compounded between the parties on the foot of compromise arrived

at between the parties. Consequent upon his conviction the

petitioner was dismissed from service. No doubt, the petitioner was

acquitted of the said offence, be that on compromise or on merits.

Subsequently, basing on the judgment of the High Court he was

reinstated into service. Since he was acquitted of the offence, the

petitioner claims seniority and all other consequential benefits

during the period of his suspension and dismissal.

7 However, as seen from the Memo dated 22.8.2015 of the

Director of Economics, Government of Telangana, wherein it is

clearly mentioned that the petitioner was not fully exonerated and

the whole suspension period / dismissal period was not treated as

duty. Certain portion of the suspension period was only restored

to be treated as duty as the suspension orders were issued /

communicated three months later and the period from 16.3.2004

to 25.8.2007 was regularized as Eligible leave as per the request of

the petitioner and that unless the suspension / dismissal period is

treated as on duty, the same cannot be counted as duty period for

all purposes as per Rule 54 A & 54-B of F.R and hence the request

of the petitioner to assign notional date of seniority to him with

effect from 22.01.2007 on par with his immediate junior cannot be

considered. Further, as per Rule 33-f of the A.P. Subordinate

Service Rules, The seniority of retrenched employee on

reappointment shall be determined in accordance with the date of

reappointment.

8     Moreover,     as     seen       from       the     Circular    Memo

No.32818/A/521/FR-I/2008          dated       05.12.2008,    wherein      the

Government    issued     instructions        regarding   regularization    of

suspension period when an employee was under suspension / out

of service for his involvement in a private Criminal / Civil case, it

was categorically stated that "In all cases where the Government

employee was under suspension / out of service for his

involvement in a private Criminal / Civil case, consequent upon

his reinstatement into service, the intervening period between the

date of suspension and the date of his joining must be treated as

'not duty', as a matter of fact, since the Government is not

responsible for his being out of office and he himself is solely

responsible for this and he is not entitled for any monetary benefit

for this period, and the principle of 'No Work No Pay' is applicable

to such cases, irrespective whether they are acquitted in the

private criminal / civil cases." Therefore, though the petitioner was

acquitted of the offence, since the petitioner was out of service

during the relevant period, the petitioner cannot claim any benefits

for that period. The Circular further clearly shows that as per F.R

54-A (2) where the dismissal, removal or compulsory retirement of

a Government servant is set aside by the Court solely on the

ground of non-compliance with the requirements of clause (1) or

clause (2) of Article 311 of the Constitution, and where he is not

exonerated on merits, the pay and allowances payable to the

Government servant for the period of dismissal shall be limited to

the subsistence allowances already paid under F.R 53 for the

entire period during which the Government servant was not on

duty and that under F.R 54-A (3), provided that back wages to a

suspended / dismissed employee cannot be paid as a matter of

course in cases where the employee has been acquitted by the

courts on benefit of doubt." In the case on hand the petitioner was

acquitted of the offence basing on a compromise arrived at between

the parties, but not on merits. It is an admitted fact that the

petitioner was paid subsistence during the period of suspension.

9 Having regard to the facts and circumstances of the case,

this Court is of the view that the plea of the petitioner for counting

his entire period of suspension period i.e. from 16.3.2014 to

25.8.2007 as on duty for the purpose of seniority and for pay and

allowances for the said period cannot be considered. The Writ

Petition is devoid of merits and is accordingly liable to be

dismissed.

10 In the result, the Writ Petition is dismissed. No order as to

costs. Miscellaneous petitions if any pending shall also stand

dismissed.

__________________________ T. AMARNATH GOUD, J.

Date: 05.03.2021 Kvsn