(Per GMJ)

This writ petition is filed seeking to quash the order dated 23.12.2009 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, (for short the Tribunal) in O.A.No.11663 of 2009, whereby the O.A. filed by the first respondent questioning the removal order dated 31.10.2007 passed by the second petitioner and the order dated 24.09.2009 passed by the first petitioner rejecting the appeal filed by the first respondent, was allowed and the matter was remanded while ordering re-induction of the first respondent into service.

The facts of the case are that the first respondent was initially appointed as a Sweeper in 1984 in the Osmania General Hospital and was promoted as a Laboratory Attendant in 1995. While working as Laboratory Attendant, on 03.11.1997 he applied for sanction of 90 days earned leave with effect from 10.11.1997 to 07.02.1998 on personal grounds to settle the property dispute at Narsabadda, Sangareddy, Medak District, and on expiry of leave, he did not report to duty nor sought extension of leave and remained unauthorisedly absent. On 04.09.2006 i.e., after nine years of unauthorized absence, he submitted representation to the second petitioner with a request admit him to duty. Then, the second petitioner issued a charge memo dated 05.02.2007 for unauthorized absence, to which the first respondent submitted explanation on 21.03.2007 giving reasons for the absence. Thereafter, the second petitioner issued show cause notice dated 17.04.2007 and consequently by order 31.10.2007 removed the first respondent from service. Aggrieved thereby, the first respondent filed an appeal before the first petitioner, who, in turn, called for a report. In the meanwhile, the first respondent filed O.A.No.7495 of 2009 seeking a direction to the first petitioner to pass orders on his appeal. By letter dated 18.09.2009, the first petitioner instructed him to appoint an enquiry officer to conduct enquiry against the first respondent and initiate action under the Rules. Accordingly, by proceedings dated 04.10.2009, an enquiry officer was appointed. The first petitioner, by order dated 24.09.2009, rejected the appeal and the Tribunal disposed of the O.A.No.7495 of 2009 on 07.10.2009. Subsequently, the first respondent filed O.A.No.11663 of 2009 questioning the removal orders dated 31.10.2007 passed by the second petitioner and the order dated 24.09.2009 passed by the first petitioner rejecting the appeal. According to the petitioners removal order dated 31.10.2007 was passed following the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short the Rules), but according to the first respondent, it was passed without conducting enquiry as contemplated under the Rules.

Heard the learned counsel for both the parties and perused the material on record.

Learned Government Pleader for Services-I appearing for the petitioners submits that contrary to Rule 8(4) of the Rules, the Tribunal ordered re-induction of the first respondent into service and therefore, the impugned order cannot be sustained.

Learned counsel for the first respondent submits that even when the first respondent in his explanation dated 21.03.2007 given to the show cause notice dated 05.02.2007, admitted his guilt of unauthorized absence from duty, as per Rule 20(5)(a) of the Rules, the disciplinary authority shall record its findings before acting in the manner laid down in Rule 21 of the Rules action on the inquiry report, which was not done, and so the procedure contemplated under the Rules was not followed while passing orders for removal of the first respondent from service and therefore, the Tribunal rightly allowed the O.A. while remanding the matter and ordering re-induction of the first respondent into service.

The Tribunal, while allowing the O.A.No.11663 of 2009 by order dated 23.12.2009, observed as follows:

Subsequent to the removal of the applicant from service vide proceedings dated 31.10.2007, the Director of Medical Education, requested the Superintendent, Osmania General Hospital to appoint an Enquiry Officer to conduct enquiry in accordance with CCA Rules. As a consequence, the Superintendent, Osmania General Hospital, appointed an Enquiry Officer vide proceedings dated 04.10.2009 when the orders of the removal are in subsistence. In view of the orders issued by the Director of Medical Education directing the 2nd respondent for conducting enquiry, it is clear that the impugned orders have been passed without following the A.P.C.S. (CC & A) Rules.

In view of the foregoing reasons, the impugned orders in Rc.No.E5/OGH/2007/2463, dated 31.10.2007 passed by the 2nd respondent are set-aside and the matter is remanded back to the 2nd respondent herein i.e., the disciplinary authority to conduct enquiry in accordance with the A.P.C.S. (CC & A) Rules and to pass appropriate orders pursuant to the Charge Memo. Dated 05.02.2007.

As the applicant had reported for duty on 04.10.2006 and the respondents instead of issuing posting orders, issued the Charge Memo. Referring the matter to the higher authorities, and the impugned orders of removal have been passed, the period from reporting to duty i.e. 04.10.2006 till the date of removal shall be treated as compulsory wait and from the date of removal, till the date of reinstatement, shall be treated as on duty. The respondents are further directed to re-induct the applicant forthwith into service, pending finalisation of the disciplinary proceedings and to pay arrears from the date of reporting to duty on 04.10.2006, within a period of eight weeks from today. Accordingly, the O.A. is allowed.

It is relevant to extract, Rule 20 (5) (a) of the Rules, which reads as under:

(5) (a) On the date fixed for appearance, the Government Servant shall submit the written statement of his defence. The Disciplinary Authority shall ask the government servant whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Disciplinary Authority shall record the plea, sign the record and obtain the signature of the Government Servant thereon. The disciplinary authority shall record findings of guilty in respect of those articles of charge to which the Government servant pleads guilty. Where the Government servant admits all the articles of charge, the disciplinary authority shall record its findings on each article of charge after taking such evidence as it may think fit and shall and shall act in the manner laid down in Rule 21.

It is also relevant to extract Rule 8(4) of the Rules, which reads as under:

Rule. 8. Suspension

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a Court of law and the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.

Having heard the learned counsel for both the parties and perused the material on record and the provision of law, it is seen that since the procedure contemplated under the Rules was not followed while removing the first respondent from service, the Tribunal rightly set aside the removal order dated 31.10.2007 and remanded the matter to the disciplinary authority for conducting enquiry and that since the first respondent reported duty on 04.10.2006, the Tribunal correctly ordered to treat the period from 04.10.2006 till the date of removal i.e., 31.10.2007 as compulsory wait. Coming to the next part of the impugned order, it is pertinent to note that Rule 8(4) of the Rules contemplates that where a penalty of removal from service imposed on a Government servant - in this case the first respondent, was set aside, he shall be deemed to have been placed under suspension by the authority competent to impose suspension from the date of the original order of removal - in this case 31.10.2007 and shall continue to remain under suspension until further orders. In this view of the matter, the Tribunal erred in treating the period from the date of removal i.e., 31.10.2007 till the date of reinstatement as on duty and also ordering re-induction of the first respondent into service. Therefore, the order of the Tribunal dated 23.12.2009 passed in O.A.No.11663 of 2009 to the extent it reads - and from the date of removal, till the date of reinstatement, shall be treated as on duty. The respondents are further directed to re-induct the applicant forthwith into service, pending finalisation of the disciplinary proceedings and to pay arrears from the date of reporting to duty on 04.10.2006, within a period of eight weeks from today., which is contrary to Rule 8(4) of the Rules, cannot be sustained and the same is hereby set aside and the rest of the order shall remain as it is.

With the above observations and direction, the Writ Petition is disposed of. No costs.