Telangana High Court
M. Ravinder Reddy, Warangal Dist. vs The Dy. Commissioner Of Endowments And ... on 5 June, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
1
wp_24047_2009
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 24047 of 2009
Between:
M.Ravinder Reddy
... Petitioner
And
The Deputy Commissioner of Endowments and another
... Respondents
JUDGMENT PRONOUNCED ON: 05.06.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
_________________
SUREPALLI NANDA, J
2
wp_24047_2009
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 24047 of 2009
% 05.06.2023
Between:
# M.Ravinder Reddy
..... Petitioner
And
$ The Deputy Commissioner of Endowments and another
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr J.R.Manohar Rao
^ Counsel for the Respondent No.1: G.P. for Endowments
^ Standing counsel for R.2 : Mr Ch. Satish Kumar
? Cases Referred:
1. 2014 (9) SCJ 91
2. 1986 AIR 180
3. 2012 (3) SCC 178
3
wp_24047_2009
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 24047 of 2009
ORDER:
Heard Learned Counsel for the Petitioner and Learned Government Pleader for Endowments appearing for the respondents.
2. This Writ Petition is filed to issue a Writ of Mandamus, declaring the proceedings of the 2ndrespondent bearing Rc.No.SSD/Estt./2006, dated 27.01.2007 in which a punishment of removal was awarded against the petitioner and set aside the same and consequently, direct the 2nd respondent to reinstate the applicant into service as Junior Assistant under the control of the 2nd respondent temple with all consequential benefits.
3. The case of the Petitioner in brief, is as follows:
a) Petitioner had been appointed as Junior Assistant and was posted to Sri Kodanda Rama Swamy Devasthanam, Navabpet, Lingalaghanpur Mandal, Warangal District.
Subsequently, on 29.04.2006 the petitioner was transferred to the present place and joining report for the same has been 4 wp_24047_2009 SN,J submitted by the petitioner after transfer on 29.4.2006 F.N. and thereafter, the petitioner was permitted to join there.
b) The petitioner proceeded for leave on health condition from 19/06/2006 to 14/07/2006 and proceeded on Medical Leave from 20/07/2006 to 04/07/2007 since petitioner was suffering from Hypertension and Left sided Hemiplegia (Paralysis).
c) After petitioner's recovery, he submitted a joining report on 05/07/2007 but there is no response from the 2nd Respondent. Later on, he submitted another joining report on 08/07/2007 duly enclosing the medical certificates and also fitness certificate issued by Civil Surgeon, Govt. Hospital, Jangaon, Warangal District. Even though, the petitioner has submitted his joining report, the 2nd Respondent has not permitted the petitioner to join duty. The petitioner has also submitted repeated representation not only to the 2nd Respondent but also to the 1st Respondent requesting them to permit the petitioner to join duty.
d) Instead of allowing the petitioner to join service, the 2nd Respondent on 28.07.2006 issued a show cause notice for 5 wp_24047_2009 SN,J removal from service. The said notice was issued without holding any enquiry and without giving any opportunity to the respondent.
e) Consequently, on 07.08.2006, the petitioner has submitted an explanation denying all the allegations. However, no action has been taken by the respondents and no permission was granted to the petitioner to join the duty in spite of repeated representation and there is no response from the respondents till date.
f) delay in not permitting the petitioner to join duty is the fault of the 2nd Respondent and as such the period from the date of reporting to till permitting the petitioner to join duty is to be treated as compulsory wait and hence the petitioner is entitled to full salary and allowances etc. The period of Medical Leave is also not regulated by the 2nd Respondent and the petitioner was not paid any salary from the date of joining i.e., 29/04/2006.
4. The Counter Affidavit filed on behalf of the 2nd respondent, in brief, is as follows:
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a) The petitioner had been appointed as Junior Assistant in Sri Kondanda Rama Swamy Temple on 01/01/1992 as per his service Register on consolidated salary of Rs. 300/- P.M. Subsequently he was placed under suspension on 04/04/1995, in view of his involvement in offence counter feting currency notes (Crime No. 57/1995 of P.s. Jangaom, U/sec. 489/A of I.P.C). Thereafter he was reinstated into service on 05/10/2001 as the case was dismissed on the ground that the prosecution failed to prove the guilt beyond reasonable doubt.
b) The petitioner was again placed under suspension on 10.6.2005 on the ground of absconding from duties from 28.05.2005 to 24.07.2005 and as many as 5 charges were framed against the petitioner. Subsequently, the petitioner was reinstated into service on 01.02.2006. The 1st Respondent vide R.C.No. A3/1313/2005 dated 29/03/2006, directed the 2nd Respondent to treat the period of suspension as "no work no pay" (EOL) as the petitioner had escaped from punishment on technicalities only and the percentage of establishment has also exceeded 48% of assessable income, whereas the statutory notices only 30%. Therefore, on 7 wp_24047_2009 SN,J 15.11.2006, 2nd respondent issued a notice to petitioner asking the petitioner why the period of suspension cannot be converted from duty period to EOL/No Work No Pay and the same is pending for reply from the petitioner. Also, the petitioner is still absconding from duties in Siddeshwaraswamy Temple, Kodavaturu (V) since 28/05/2006 and his whereabouts are not known till to date.
c) A show-cause notice was issued on 28/07/2006, which is show cause for removal from service and on 22/12/2006 the 2nd Respondent in his R.C.No. SSSD/Est/2006 passed suspension order on ground of 5 charges and asked the petitioner for submitting his explanation. The suspension order dated 22/12/2006 was sent to the petitioner through a Registered Post along with the Acknowledgment Due.
d) However, the same was returned undelivered as the addressee was not found to serve the letter. Accordingly, a notification was issued in Andhra Bhoomi Telugu Daily (Warangal Edition) on 15/01/2007 calling upon the petitioner to explain his reasons for absconding from the duties within 7 days from the date of notification. But the petitioner failed to 8 wp_24047_2009 SN,J explain reasons as to why the petitioner should not be removed from service.
e) Even after the publication of the News Item, the petitioner had failed to submit any explanation. As a result, the 2nd Respondent passed removal orders in his RC. No. SSSD/Estt/2006 dated 27/01/2007, as per the powers vested under the provisions of A.P.CH.R.I. & Endowments Office Holders and Servants Service Rules/2000 and the Endowments Act 30 of 1987.
f) Suppressing these facts, the petitioner filed the writ petition and misrepresented the Court with unclean hands. Hence the Writ Petition is liable to be dismissed.
5. The Counter Affidavit filed on behalf of the 1st respondent, in brief, is as follows:
a) The Petitioner is not entitled for any monetary benefits, as the period of suspension is neither regularized by the competent authority nor the removal order was set aside by the higher authority and no establishment charges were approved for taking necessary action in the matter in view of the pendency from the petitioner who had been absconding 9 wp_24047_2009 SN,J from the duties from 28.05.2006. Petitioner did not submit explanation about abscondence from duties and other irregularities.
b) The Petitioner has to submit his explanation or file an appeal before the Appropriate Authority under the provisions of Endowments Act 30 of 87 but the petitioner had approached this court with unclean hands. Hence the Writ Petition is liable to be dismissed as there are no merits in the case.
6. PERUSED THE RECORD :
a. Order impugned in Rc.No.SSSD/Estt./2006, dated 27.01.2007 issued by the office of the 2nd respondent reads as under :
"Sri M. Ravinder Reddy, Jr. Asst. of the subject temple was guilty of absconding to his duties since 28-5-2006, failed to discharge his legitimate duties as Jr. Asst., of the subject temple Further he did not obtain permission to leave head quarters and caused severe inconvenience to the administration of the temple. As such he had been placed under suspension pending enquiry and as many as 5 charges were framed against him vide reference 1" cited. But the orders in the reference 1" cited were returned undelivered as 10 wp_24047_2009 SN,J the addressee was not found to serve the letter. Accordingly, a notification was issued in Andhra Bhoomi Telugu daily (Warangal Edition) on 15-1- 2007 calling upon him in to explain his reasons for absconding within (7) days from the date of notification. But the individual failed to explain reasons as to why he should not be removed from services.
On perusal of records and on the strength of material evidence available, the punishment of removal from services is hereby awarded to Sri M. Ravinder Reddy, Jr. Asst, of the subject temple with immediate effect."
b. Counter affidavit filed by Respondent No.1, in particular, Para 7 reads as under:
"Para 7. I humbly submit that the petitioner is not entitled for any monetary benefit as the period of suspension is neither regularized by the competent authority nor the removal order was set-aside by the higher authority, no establishment charges are approved by the authority for taking necessary action in the matter in view of pendency of reply notice from the petitioner who is absconding from the duties from 28.05.2006 and his whereabouts are not known till today. The petitioner did not choose to submit explanation on his part about his absconding from duties and in other irregularities as alleged in the 11 wp_24047_2009 SN,J notices given to the petitioner on 22.12.2006 and 27.01.2007. The Petitioner should have to submit explanation or to file appeal before the appropriate authority as per provisions of the Endowments Act 30/87 but he did not choose to do so and directly approached this Hon'ble Court with un-cleaned hands."
c. Counter affidavit filed by Respondent No.2, in particular, Paras 5 and 6 read as under :
"5. It is submitted that the petitioner was again placed under suspension on 10-6-2005 on the ground of absconding from duties from 28-5-2005 to 24-7-2005. As many as 5 charges were framed against him. Subsequently he was reinstated into service on 1-2- 2006. The 1" Respondent in his R.C. No. A3/1313/2005 dated 29-3-2006, directed the 2nd Respondent to treat the period of suspension as "no work no pay" (EOL) as the petitioner had escaped from punishment on technicalities only and the percentage of establishment has also exceeded 48% of assessable income, whereas the statutory notices only 30%. This respondent on 15- 11-2006 had notice to the petitioner asking the petitioner why the period of suspension cannot be converted from duty period to EOL/No Work No Pay and it is pending as such for the reply of the petitioner. The petitioner is still absconding from duties in Siddeshwaraswamy Temple, Kodavaturu (V) since 28-5- 2006 and his whereabouts are not known 12 wp_24047_2009 SN,J till to date. A Xerox copy of the attendance register is hereby enclosed for kind perusal.
6. It is also pertinent to submit here that a show-cause notice was issued on 28-7-2006, show cause for removal from service. Subsequently on 22- 12-2006 the 2nd Respondent in his R.C.No. SSSD/Estt/2006, passed suspension order on ground of 5 charges and asked the petitioner to submit his explanation. The suspension order dated 22-12-2006 was sent to the petitioner on Registered Post With a Acknowledgment Due. The same was returned un delivered as the addressee was not found to serve the letter. Accordingly a notification was issued in Andhra Bhoomi Telugu Daily (Warangal Edition) on 15-1-2007 calling upon him to explain his reasons for absconding from the duties within 7 days from the date of notification. But the petitioner failed to explain reasons as to why he should not be removed from service. Even after the publication of the News Item the petitioner is not turned up to submit his explanation. As a result the 2nd Respondent passed removal orders in his RC.No. SSSD/Estt/2006 dated 27- 1-2007 vested the powers on him by the provisions of A.P.C.H.R.I. & Endowments Office Holders and Servants Service Rules/2000 and the Endowments Act 30 of 1987. Any grievance is there the petitioner can question that order in any forum. Suppressing these facts the petitioner 13 wp_24047_2009 SN,J filed the writ petition and misrepresented the Court with unclean hands. The suspension order dated 22-12-2006 the Andhra Bhoomi Publication on 15-1-2007 and the removal order dated 27-1-2007 is filed in the material papers for ready reference of the Hon'ble Court."
d. Para 4 of the Reply affidavit filed by the Petitioner reads as under :
"Para 4. With regard to Para 5 and 6 of the Counter Affidavit it is submitted that the petitioner was placed under Suspension on 10.06.2005 for absconding from duties for 2 months. As a matter of fact the petitioner proceeded on leave by submitting leave application and he never absconded from duty. However the petitioner was reinstated into service on 01.02.2006. It is necessary to state here that though the petitioner was placed under suspension no subsistence allowance was paid during that period, the petitioner was forced to approach the Hon'ble Tribunal for claiming salaries and subsistence allowance in O.A.No.4959 of 2006. The Hon'ble Tribunal was pleased to order for payment of subsistence allowance. On filing the C.A.No.777 of 2006 in O.A.NO.4959 of 2006, before the erstwhile tribunal, the respondents have paid the subsistence allowance for Rs.14,850/-. The petitioner has not absconded from duty since 28.05.2006 as stated by the respondents. As a matter of fact the petitioner is continuously making representations to the respondents requesting to permit 14 wp_24047_2009 SN,J to join duty. It is also necessary to state here that the petitioner was transferred to Sri Siddeshwara Swamy Temple, Kodavaturu, Warangal District on 16.05.2006 and he joined in the said post. The petitioner proceeded on medical leave from 17.05.2006 to 25.05.2006 and thereafter he continued under medical leave on 28.11.2006 thereafter he has submitted his joining report along with medical certificate on 30.11.2006. Thereafter the respondent No.2 has not permitted the petitioner to continue in service for the reasons best known to him. On the other hand the 2nd respondent without serving the copy of the suspension order to the petitioner placed the petitioner under suspension on 22.12.2006. No show cause notice for removal from service was issued to the petitioner on 28.07.2006 as stated by the respondents. It is necessary to state here that the 1st respondent appeared before the Hon'ble Tribunal in C.A.No.777 of 2006 in O.A.NO.4959 of 2006 on 03.01.2007 for non implementation of the interim orders passed by the Hon'ble Tribunal. Thus it is clear that notification calling for explanation for absconding from duties from the petitioner published in Andhra Bhoomi Telugu Daily Warangal Edition on 15.01.2007 only to harass the petitioner to take vengeance against the petitioner as the 1st respondent appeared in person before the Hon'ble Tribunal in Contempt Application. The removal order said to have been issued by the 2nd respondent 15 wp_24047_2009 SN,J dated 27.01.2007 was not communicated to the petitioner till date and the same was prepared as on after thought by the respondent after filing the writ petition. Be that as it may, the reason for removal is only that of unauthorized absence for 2 months. In any such case the punishment of removal cannot be imposed without following the procedure as contemplated under Rule 20 of A.P.C.S. (CC&A) Rules. Admittedly no enquiry was held regarding unauthorized absence of the petitioner for 2 months and none were examined. But the 2nd respondent passed the removal order dated 27.01.2007 which is not communicated to the petitioner till date and the same is void and illegal, contrary to the A.P.C.S. (CC&A) Rules."
7. DISCUSSION AND CONCLUSION :
i. A bare perusal of the relevant paragraphs of the counter affidavit filed by the 1st and 2nd Respondent (referred to and extracted above) clearly indicates that the suspension order dt. 22.12.2006, sent to the Petitioner by Registered Post Acknowledgement Due is returned undelivered as the addressee was not found to serve the letter and thereafter a Notification was issued in Andhra Bhoomi Telugu Daily (Warangal Edition) on 15.01.2007 calling upon the Petitioner to 16 wp_24047_2009 SN,J explain his reasons for absconding from the duties within 7 days from the date of Notification. But the Petitioner had not turned up and submitted his explanation, therefore the 2nd Respondent passed the removal orders dt. 27.01.2007.
ii. A bare perusal of para 4 of reply affidavit filed by the Petitioner (referred to and extracted above) indicates that the version of the Petitioner contrary to the pleas raised by the Respondents No.1 and 2 in their counter affidavits and the Petitioner contends that the Petitioner proceeded on medical leave from 17.05.2006 to 25.05.2006 and thereafter the Petitioner continued under medical leave till 28.11.2006 and the Petitioner submitted joining report along with medical certificate on 30.11.2006, but however, the 2nd Respondent did not permit the Petitioner to continue in service.
iii. A bare perusal of the material documents filed along with the reply affidavit filed by the Petitioner indicate that the Petitioner represented to the Respondents herein through various representations dt. 17.05.2006, 01.06.2006, 21.06.2006, 07.08.2006, 29.03.2007, 25.05.2007, 17 wp_24047_2009 SN,J 01.02.2008, 03.04.2008, 15.11.2010, 07.04.2011, 30.06.2015, 07.09.2015, 09.03.2021, 12.04.2021, 20.11.2021, 14.03.2022 and the record further reveals many of the said representations of the Petitioner having been acknowledged by the Respondents herein.
iv. In the present case there is no finding by the Respondents herein on the point whether the Petitioner absconded from duties since 28.05.2006 willfully or because of compelling circumstances.There has been no enquiry conducted at all in this regard and the Petitioner had been removed from service unilaterally vide 2nd Respondent's proceedings dt. 27.01.2007. The judgment of the Apex Court reported in 2014(9) SCJ page 91 between Raghubir Singh v General Manager, Haryana Roadways, Hissar. Para 35 reads as under:
"35. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the Rule of the 'Doctrine of Proportionality' in ensuring preservation of the rights of the workman. The principle of 'Doctrine of Proportionality' is a well recognized one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The 18 wp_24047_2009 SN,J above said important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/ workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.
v. This Court in a judgment reported in Raghubir Singh V. General Manager, Harayana Roadways, Hissar at paras 30 in Civil Appeal No.8434/2014, observed as follows :
"30. The appellant workman is a conductor in the respondent-statutory body which is an undertaking under the State Government of Haryana thus it is a potential employment. Therefore, his services could not have been dispensed with by passing an order of termination on the alleged ground of unauthorised absence without considering the leave at his credit and further examining whether he is entitled for either leave without wages or extraordinary leave. Therefore, the order of termination passed is against the fundamental rights guaranteed to the workman under Articles 14, 16, 19 and 21 of the Constitution of India and against the statutory rights conferred upon him under the Act as well as against the law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below.19
wp_24047_2009 SN,J Therefore, the impugned award of the Labour Court and the judgment & order of the High Court are liable to be set aside.
vi. In the present case, the leave of the Petitioner at his credit nor Petitioner's entitlement for either leave without wages or extraordinary leave was considered by the Respondent Authority prior to the passing of the impugned order.
vii. The Apex Court in its judgment reported in Olga Tellis & Others vs. Bombay Municipal Corporation at para 32 reported in 1986 AIR 180 observed as under :
"32.....The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its 20 wp_24047_2009 SN,J effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life....."
viii. The judgment of the Apex Court reported in (2012) 3 SCC 178 between Krushnakant B.Parmar v Union of India and another. Paras 16, 19 and 25 reads as under:
"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
19. In a Departmental proceeding, if allegation of un-authorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.21
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25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.
ix. In the present case there has been no finding by the Respondent Authority that the Petitioner's absence from duties since 28.05.2006 had been willful or because of compelling circumstances in view of the fact that there had been no enquiry conducted at all by the Respondent Authority. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior 22 wp_24047_2009 SN,J permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his/her control like illness, accident, hospitalization etc., but in such a case the employee cannot be held guilty of failure of devoting to duty or behavior unbecoming of a Government servant. But in the present case the Petitioner's absence is willful or because of compelling circumstances had not been decided on merits".
8. This Court opines that the order impugned in Rc.No.SSSD/Estt./2006, dated 27.01.2007, that is the punishment of removal from services awarded to the Petitioner who is working as Junior Assistant of the 2nd Respondent Temple admittedly as borne on record is an order passed without notice to the Petitioner, without holding any enquiry regarding the unauthorized absence alleged against the Petitioner. This Court opines whether the Petitioner had been absconding his duties since 28.05.2006 willfully had not been established against the Petitioner by the 2nd 23 wp_24047_2009 SN,J Respondent Authority by conducting an enquiry in accordance to law in conformity with principles of natural justice.
9. Taking into consideration the above referred facts and circumstances of the case and the law laid down by the Apex Court in the judgment of the Apex Court reported in 2014(9) SCJ page 91 between Raghubir Singh v General Manager, Haryana Roadways, Hissar, judgment reported in Olga Tellis & Others vs. Bombay Municipal Corporation reported in 1986 AIR 180, and also the judgment of the Apex Court reported in (2012) 3 SCC 178 between Krushnakant B.Parmar v Union of India and another (referred to and extracted above) and further taking into consideration para 4 of the reply affidavit filed by the Petitioner (referred to and extracted above) and all the representations dt. 17.05.2006, 01.06.2006, 21.06.2006, 07.08.2006, 29.03.2007, 25.05.2007, 01.02.2008, 03.04.2008, 15.11.2010, 07.04.2011, 30.06.2015, 07.09.2015, 09.03.2021, 12.04.2021, 20.11.2021, 14.03.2022 brought on record by the petitioner along with the reply affidavit addressed to the Respondents herein, this 24 wp_24047_2009 SN,J Court opines that the Petitioner is entitled for the relief prayed for herein and the order impugned of the 2nd Respondent bearing Rc.No.SSD/Estt./2006, dated 27.01.2007 is set aside and the Respondents are directed to reinstate the Petitioner into service as Junior Assistant under the control of the 2nd Respondent Temple with all consequential benefits. It is however made clear that it is open to the Respondents to initiate appropriate action against the Petitioner if they so desire, but in accordance with law and in conformity with principles of natural justice and accordingly, the writ petition is allowed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stands closed.
_________________ SUREPALLI NANDA, J Date: 05.06.2023 Note: L.R. copy to be marked b/o kvrm