Telangana High Court
S. Manohar vs A.P. Social Welfare Residential ... on 31 December, 2021
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.3110 OF 2012
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ of Certiorari to call for the records and to quash or set aside the proceedings in Rc.No.Zone-V/Estt./1496/2010, dt.17.02.2011 issued by the 2nd respondent and Rc.No.Zone-V/Estt./1496/2010, dt.14.09.2011 issued by the 1st respondent, as bad, illegal, arbitrary, discriminatory, unconstitutional and violative of principles of natural justice and denial of reasonable opportunity and consequently, to direct the respondents to reinstate the petitioner forthwith with all consequential benefits such as treating the period during which the petitioner was kept out of service as on duty, payment of arrears, increments, pay fixation, etc.
2. Brief facts of the case as recited by the petitioner are that the petitioner had completed his M.Sc., B.Ed., and was selected and appointed as Post Graduate Teacher (Mathematics) on 03.08.1993 and was posted at Medipalli, Karimnagar District. Since his wife was working as Additional Village Development Officer at Huzurabad, Karimnagar District, at his request, he was transferred to a place close to his wife's working place on 16.07.1994. However, when he was transferred to Mudhole, Adilabad District vide proceedings W.P.No.3110 of 2012 2 dt.18.07.1995, he challenged the same in W.P.No.1784 of 1995 and obtained interim directions and continued at Karimnagar. However, after the vacation of the interim direction, the petitioner was directed to report at Mudhole, Adilabad District on 02.10.1997 and accordingly he joined at Mudhole and while working there, his health got deteriorated as the water at that place did not suit him and for this reason, he applied for medical leave now and then. Again he requested for transfer to Kirimnagar or Warangal District but the same was not granted. Though leave was granted intermittently, he was asked to report for duty vide memo dt.27.09.1998 and accordingly after he was found medically fit, the petitioner reported for duty on 09.10.1998 and worked there till 02.12.1998 and thereafter again sought for medical leave.
3. Thereafter, vide a show-cause notice dt.28.12.1999, the petitioner was asked to show cause as to why his services should not be terminated, for which, the petitioner submitted joining report on 13.01.1999 to the Principal, APSWR School / College, Mudhole, Adilabad District, but he was not allowed to join and was directed to see the 2nd respondent in this connection. Accordingly, the petitioner approached the 2nd respondent many times, but he was not allowed to join duty. Thereafter, the respondents insisted that the petitioner shall give an undertaking on a stamp paper that he would not seek medical leave again. However, as the said insistence was not in accordance W.P.No.3110 of 2012 3 with rules, the petitioner did not do so but gave an undertaking that he will try his best not to seek leave without justifiable reason.
4. However, a show-cause notice dt.28.02.1999 was issued to the petitioner, wherein it was alleged that the petitioner was absent for a continuous period of 248 days and that during the said period, he was working in a private college. The petitioner submitted his explanation denying the allegations. The petitioner received another show-cause notice dt.19.03.1999 stating that a panchanama was conducted in respect of the petitioner, wherein it was noted that the charges against the petitioner were established / proved and the petitioner was asked to submit his explanation for the proposed punishment of dismissal from service. The petitioner submitted his explanation on 02.04.1999. However, dismissal order was passed by the 2nd respondent on 12.04.1999 against which, the petitioner preferred an Appeal on 03.05.1999 but the same was also rejected on 07.06.1999. According to the petitioner, punishment of dismissal was imposed on the petitioner without conducting any enquiry / following due process of law. In view of the same, the petitioner filed W.P.No.12285 of 2000 challenging his dismissal from service.
5. The writ petition was disposed off on 30.09.2010, wherein this Court directed the respondents to conduct an enquiry within 3 months from the date of receipt of the said order. The Hon'ble Court also held that as the order of dismissal was quashed, the question of payment of W.P.No.3110 of 2012 4 back wages / arrears from the date of dismissal till the date of completion of enquiry shall also be considered by the disciplinary authority on completion of the departmental enquiry and depending on its outcome. In compliance with the said direction of the Hon'ble High Court, the 2nd respondent appointed an enquiry officer and presenting officer vide proceedings dt.08.12.2010. The petitioner was addressed a notice dt.10.12.2010 by the enquiry officer directing him to be present on 20.12.2010. Such notices were also issued to the witnesses who were the signatories to the alleged panchanama that was allegedly conducted earlier which was the basis for the earlier dismissal. The said notice dt.10.12.2010 was also published in the newspapers on 11.12.2010. The enquiry officer had fixed the date of enquiry as 20.12.2010 and articles of charge were issued to the petitioner vide memo dt.16.12.2010 which were served on the petitioner on 17.12.2010. As the articles of charges were communicated to the petitioner after appointment of the enquiry officer, the petitioner requested the authorities to postpone the enquiry from 20.12.2010 at least by two weeks so that the petitioner would be in a position to give his explanation. However, there was no communication to the petitioner about postponement of the enquiry and therefore the petitioner attended the enquiry on 20.12.2010 and submitted a representation to the enquiry officer stating that normally the enquiry will be conducted after receipt of the explanation of the delinquent employee to the charge memo. He also submitted that the W.P.No.3110 of 2012 5 documents relied upon for proving the charges have not been supplied to him and therefore he had no opportunity to submit his list of witnesses or to engage a lawyer for presenting his case.
6. The enquiry officer vide his memo dt.21.12.2010 furnished a list of documents and directed the petitioner to submit his defence witnesses within 3 days and declined the request of the petitioner to engage a lawyer. The petitioner submitted his explanation to the charge memo vide letter dt.24.12.2010 denying all the charges categorically. On the next date of the enquiry, i.e., on 04.01.2011, the petitioner's defence assistant could not be present and the prosecution witnesses were examined and the enquiry was conducted and concluded on the very same day. Vide proceedings dt.13.01.2011, the enquiry report was communicated to the petitioner on 19.01.2011 and the petitioner was directed to submit his representation within 10 days from the date of receipt of the memo. The petitioner submitted his objections to the enquiry report on 29.01.2011 demonstrating as to how the charges are not proved. However, the 2nd respondent, vide proceedings dt.17.02.2011 dismissed the petitioner from service, which was communicated to the petitioner on 08.03.2011. The petitioner preferred an Appeal to the 1st respondent on 30.05.2011 which was also rejected, against which, this Writ Petition is filed.
7. The grounds raised by the petitioner in this Writ Petition are on the following points:
W.P.No.3110 of 20126
(1) the charge memo dt.03.11.2010 was not served on the petitioner before appointing the enquiry officer on
08.12.2010 and it was served later on 17.12.2010 i.e., after the appointment of the enquiry officer and therefore, the whole procedure is contrary to CCA Rules and in violation of the principles of natural justice.
(2) the respondent society has not taken steps to serve the charge memo on the petitioner and therefore it is in violation of the principles of natural justice.
(3) the enquiry conducted by the enquiry officer in the absence of the defence assistant of the petitioner and concluding the same on the same day is also in utter violation of the principles of natural justice as a reasonable opportunity was denied to the petitioner. (4) the enquiry officer submitted his report on 13.01.2011 holding that the charges are proved and the disciplinary authority on the very same day i.e. on 13.01.2011 furnished a copy of the enquiry officer's report to the petitioner agreeing with the report and asking the petitioner to show cause as to why he should not be removed from service, which, according to the petitioner, is clearly perverse and without application of mind by the disciplinary authority.
W.P.No.3110 of 20127 (5) the respondent had filed a caveat before the High Court even before dismissal order was served on the petitioner. It shows that the disciplinary authority had predetermined mind to dismiss the petitioner from service which is clearly an unfair attitude and behaviour demonstrated by him.
(6) the appeal filed by the petitioner was dismissed in limine without any discussion on the grounds raised by the petitioner and therefore it shows no application of mind whatsoever by the appellate authority.
(7) the allegation against the petitioner that he worked in a private college has not been proved and that the alleged unauthorised absence was on account of his ill-health.
8. While the learned counsel for the petitioner, Sri J. Sudheer, reiterated the submissions made in the affidavit accompanying the writ petition, the learned counsel for the 2nd respondent, Sri N. Bhupal Reddy, relied upon the contentions raised in the counter affidavit.
9. In the counter affidavit, it is stated that the respondents have followed the due procedure laid down by law and have accordingly conducted the enquiry and all the charges were proved against the petitioner. It is submitted that by absenting himself, the petitioner has deprived quality education to the students and it is also proved that he W.P.No.3110 of 2012 8 was engaged in teaching in private colleges. Therefore, according to the averments in the counter affidavit, the punishment of removal from service is justified.
10. Having regard to the rival contentions and the material on record, I find that the issues before this Court are:
(i) Whether the enquiry was conducted in accordance with law?;
(ii) Whether the petitioner was guilty of unauthorised absence?;
(iii) Whether the petitioner worked in a private college during the period of absence?; and
(iv) Whether punishment of removal from service was disproportionate to the charges levelled against him?
Issue (i):
11. As regards the first issue about the validity of enquiry proceedings is concerned, this Court finds that against the earlier order of removal from service, the petitioner had filed a Writ Petition, whereby the removal order was set aside and the disciplinary authority was directed to conduct enquiry in accordance with law and thereafter proceed with the case. It is noticed that the enquiry officer was appointed vide orders dt.08.12.2010 and notices were given for the enquiry to the petitioner as well as the witnesses vide letters dt.10.12.2010. It is also noticed that the charge memo, which is dated 13.11.2010, was sent to the petitioner twice to the address given by him in the writ petition as directed by the Hon'ble Court and the same W.P.No.3110 of 2012 9 were returned unserved and therefore, the respondents had also taken out substituted service by publishing the same in the local newspaper. Therefore, it is a clear case of avoidance of the notices by the petitioner and there is no fault of the respondents in not being able to serve the charge memo on the petitioner as directed by the Hon'ble High Court before appointing the enquiry officer as alleged by the writ petitioner. The charge memo was issued prior to appointment of the enquiry officer and was served on the petitioner subsequently only due to the unavailability of the petitioner at the address given in the Writ Petition. Further, since the petitioner could not be served with the charge memo as well as the notice for hearing of the case, the respondents had to issue the notice through the local newspaper. Further, it is noticed that the petitioner has also participated in the enquiry proceedings and submitted his explanation. Therefore, I am of the view that the enquiry proceedings were conducted in accordance with law and Issue (i) is therefore answered against the petitioner. Issue (ii):
12. As regards the findings of the enquiry officer as to whether the petitioner was guilty of unauthorised absence of 248 days within a continuous period from 03.11.1997 to 29.01.1999 on the pretext of ill-
health as alleged in the charge sheet, it is noticed that the enquiry officer has examined the relevant persons during the course of enquiry and has arrived at the finding that the petitioner was absent unauthorisedly, i.e., without any sanction of leave. The enquiry officer W.P.No.3110 of 2012 10 examined the Principal of the college who deposed that he granted the petitioner all eligible casual leave, special casual leave and earned leave as per his request and after exhausting all leaves also, the petitioner did not attend and hence for such period, he was marked as unauthorisedly absent. The petitioner cross-examined the Principal. The attendance registers were also examined by the enquiry officer. Other witnesses examined by the enquiry officer also confirmed the above version of the Principal. The enquiry officer also examined the leave letters and found that the petitioner had mentioned medical grounds only in his leave application dt.29.12.1997 and also that the petitioner left the headquarters without taking prior permission of the Principal and much against the Leave Rules. Though the petitioner's counsel tried to rebut these findings of the enquiry officer, this Court finds that no evidence has been produced before this Court to prove otherwise. Thus, the finding of the enquiry officer that the petitioner was guilty of unauthorised absence is not interfered with. Thus, this issue is also answered against the petitioner.
Issue (iii)
13. As regards the finding of the enquiry officer that the petitioner has worked in a private college during the period of absence, though there is reference to the correspondence between the Regional Inspection Officer, Board of Intermediate Education, Karimnagar and Alphores Junior College (Girls), the private college in which the petitioner is alleged to have worked, this Court finds that there is no W.P.No.3110 of 2012 11 evidence forthcoming therefrom that the petitioner was working with the said college during the relevant period of unauthorised absence. The details given are of the members of the management committee of the said college and the name of the petitioner does not find place in any of the documents so filed. Therefore, the charge that the petitioner was working in a private college during the period of unauthorised absence is held as not proved. The findings are all on the basis of the statements given by the employees of the respondent college and there is no independent evidence in support of such findings. This issue is therefore answered in favour of the petitioner. Issue (iv):
14. As regards the issue as to whether the punishment of removal from service was disproportionate to the charges levelled against him, this Court finds that the petitioner was guilty of unauthorised absence and the respondent organisation, being an educational institution, has to work with disciplined staff and the petitioner was required to be residing in the town in which the college was located. By being absent from duties unauthorisedly for a period of 248 days continuously i.e., a period of nearly one academic year, the education of the students was getting affected and therefore he was guilty of misconduct. However, this Court is of the opinion that the punishment of removal from service is excessive. In such circumstances, the proper course of action would be to remand the issue for reconsideration of the authorities. But since nearly 20 years have lapsed since the date of W.P.No.3110 of 2012 12 removal, remanding the case would not be proper. Therefore, this Court deems it fit and proper to modify the order of removal from service to reinstatement into service without back wages. However, the period from the date of removal to the date of reinstatement shall be treated as continuity of service only for the purposes of retirement benefits.
15. The Writ Petition is accordingly partly allowed. No order as to costs.
16. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Dt. 31.12.2021 Svv