Telangana High Court
Dharavath Valiya vs The State Of Telangana on 5 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) NO.4844 OF 2017
ORDER:
The present writ petition has been filed seeking the following relief:
"...... to set aside the order of the 2nd respondent bearing L.Dis.No.I3I/AP/PR/20I5, Z.O.O.No.45/2015, dated 13.03.2015 in confirming the punishment of removal from service awarded by the 4th respondent in his proceeding bearing C.No.04/PR/A6/ 2014 (D.O.No.1858/2014) dated 30.10.2014 and confirmed by the order of the 3rd respondent bearing C.No.76/APP/2014 (RO.No. 15/2015) dated 06.01.2015, as illegal and untenable in law and consequently, direct the 4th respondent to reinstate the applicant into service with all consequential benefits ...."
2. The brief facts leading to filing of present writ petition are as under:
2.1. Petitioner was appointed as Police Constable in Khammam District Armed Reserve in the year 1984. While so, on 29.07.2013, petitioner along with others were deputed for Grampanchayat Election duty to Paloncha. While he was being sent for the said duty, petitioner had requested that he had suffered fracture due to an accident and was unable to walk and stand for long hours and therefore, requested the Reserve Inspector, Armed Reserve, Khammam not to depute him for election duty as he was not well.
Despite, the Reserve Inspector, had sent him to election bandobust duty under the charge of Sri K.Srinivasulu, ARSI, DAR, Khammam. Accordingly, petitioner reported before the CI of Police, Paloncha.
LNA,J WP(TR) No.4844 of 2017 2 The Police party was accommodated in a Kalyana Mandapam at Paloncha for taking rest so that they put beyond duty the next day i.e., 30.07.2013.
2.2. As petitioner was not in a healthy condition, had gone to his daughter's house, who lives in the very same village. There, the petitioner had been effected with loose motions and vomitings and he went to the local doctor, who had given some immediate treatment. After taking treatment, petitioner went back to duty and on 30.07.2013 the AR SI asked the petitioner to report before the CI of Police, Paloncha and did not take him for election duty. Petitioner had no one to ask permission for his ill-health, he went back to Khammam to his house and had gone for treatment for his ill-health to the Government Hospital, Khammam. After treatment, he had reported back duty on 04.08.2013 along with medical certificate. The Superintendent of Police, Khammam (4th respondent), had taken him to duty. Thereafter, on a report by the AR SI, Kothagudem, petitioner was placed under suspension on 09.12.2013. Subsequently, suspension orders were revoked vide order dated 24.01.2014 and the petitioner reported for duty on 13.02.2014.
2.3. On 03.01.2014, the 4th respondent had issued a charge memo, which read as under:
LNA,J WP(TR) No.4844 of 2017 3 "Sri D.Valiya, AR PC No.907 (U/S) of DAR Khammam has exhibited gross neglect of duty in absenting himself from the Grampanchayat Election duty on 29.07.2013 from 1630 hours to 2200 hours along with Arm and Ammunition allotted to him, returned to 2200 hours and again absented from 30.07.2013 at 0500 hours to 04.08.2013 without leave or prior permission and thereby, violated Rule 3 of APCS Conduct Rules, 1964."
2.4. Petitioner submitted his written statement saying that he had not absented himself and that he was not allowed to the election duty because of his ill-health and was asked to go to CI of Police, Paloncha and due to ill-health, he had returned to Khammam for treatment. He also submitted that despite his physical condition, he was allotted election duty though he was not physically fit for the same.
2.5. Petitioner submitted that despite explaining the reasons, the 4th respondent had initiated enquiry against him and the SPDO, Manuguru was appointed as Enquiry Officer. The SPDO, after conducting the departmental enquiry, submitted his report to the 4th respondent. Petitioner submitted that during enquiry, he was not given an opportunity to get his defence documents, which were submitted to the 4th respondent earlier. On receipt of enquiry report, the 4th respondent issued proceedings vide C.No.04/PR/ A6/2014, dated 30.10.2014 removing the petitioner from service.
2.6. Aggrieved by the removal orders, petitioner had preferred appeal to the Deputy Superintendent of Police, Warangal Range, Warangal (3rd respondent). However, the 3rd respondent, without LNA,J WP(TR) No.4844 of 2017 4 considering any plea of the petitioner, by a cryptic order, rejected the appeal vide his proceedings dated 06.01.2015. Aggrieved thereby, petitioner had preferred a revision before the Inspector General of Police, North Zone, Hyderabad (2nd respondent), who had also rejected the same by the order dated 13.03.2015, impugned herein. Aggrieved by the order dated 13.03.2015 of the 2nd respondent, petitioner filed present writ petition.
3. Respondents filed counter and it is contended that the Reserve Inspector of Police, District Armed Reserve, Khammam submitted a report dated 02.08.2013 stating that on 29.07.2013 petitioner was deputed to Kothagudem for Gram Panchayat election bandobust duty under the charge of Sri K.Srinivasulu, ARSI, DAR, Khammam; that ARSI reported before the CI of Police along with petitioner, who instructed them to attend at 1630 hours and the ARSI found the petitioner absent along with the arm and ammunition without any leave or prior permission; that when the petitioner turned up at 2200 hours at the accommodation, the AR SI took the arm and ammunition from the petitioner; that petitioner went away at 0530 hours on 30.07.2013 without any information and thereby, became absent to the duty unauthorizedly from 30.07.2013 to 04.08.2013. Thus, petitioner had not attended the Gram Panchayat election bandubust duty.
LNA,J WP(TR) No.4844 of 2017 5 3.1. It is contended that petitioner was placed under suspension vide proceedings dated 19.11.2013 and subsequently, suspension orders were revoked on 24.01.2014 and petitioner reported for duty on 13.02.2014. An article of charge had been initiated against the petitioner and the enquiry officer was appointed. On submission of enquiry report, the petitioner was awarded with the punishment of removal from service vide proceedings dated 30.10.2014 duly treating the absence period as leave without pay and suspension period as not on duty.
3.2. The petitioner submitted written statement of defence; that he admitted in his written statement of defence as well as in his further representation that he became absent from duty along with arm and ammunition, proceeded to his daughter's house at Paloncha. Thus, the petitioner exhibited gross neglect of duty in absenting himself from duty along with the arm and ammunition allotted to him.
3.3. The appeal and revision preferred by the petitioner were also rejected by the respondent authorities.
3.4. It is further contended that petitioner had submitted medical certificate issued by Dr. Shaik Babujan, Dy.Civil Surgeon, District Hospital, Khammam, in which it was certified that medical officer LNA,J WP(TR) No.4844 of 2017 6 advised rest from 29.07.2013 to 04.08.2013, which clearly shows that the medical certificate itself is not genuine one since petitioner was very much present at Paloncha on the entire day of 29.07.2013. Thus, the medical certificate submitted by petitioner does not have any credence. It is further contended that during the service of petitioner, he had absented to duty for several times whenever duty allotted to him and for his lapses, he was awarded with punishments of 12 censures, 20 postponement of increments and one reduction time scale of pay, which all shows the lethargic attitude of the petitioner towards his legitimate duty. Finally, it is prayed that the writ petition is liable to be dismissed.
4. Heard learned counsel Sri K.Anantha Rao for the petitioner and learned Special Government Pleader Sri M.V.Rama Rao for respondents.
5. During the course of hearing of the present writ petition, learned counsel for petitioner submitted that on 29.07.2013 at about 4.00 p.m., while the petitioner was on election bandobust duty, as he fell in sick he went to his daughters' house for taking rest, there he suffered with motions and vomtings; that after consulting the Doctor, he came back to duty at 10.00 p.m., and the ARSI asked him to sleep in the accommodation provided, and on 30.07.2013 the ARSI asked him to report before the CI of Police, LNA,J WP(TR) No.4844 of 2017 7 Paloncha and did not take him for election duty; that due to ill- health, petitioner went to Khammam and had taken treatment and reported back to duty on 04.08.2013 along with medical treatment. 5.1. Learned counsel for petitioner submitted that explanation for the charge memo submitted by the petitioner was not considered and the enquiry officer held that the charge proved only on the fact that petitioner was absent from duty. On the basis of which, punishment of removal from service was awarded by the 4th respondent, which is illegal and untenable in law. He submitted that mere absence from service, not being a grave office, for which extreme punishment of removal from service could not be awarded. He further submitted that action of 4th respondent in taking previous minor punishments for imposing the extreme punishment of removal from service without putting the petitioner under notice is wholly illegal and untenable in law and finally, prayed to set aside the impugned order.
5.2. In support of his contention, he placed reliance on the following decisions:
i) R.Mohan v. Regional Manager, APSRTC, Khammam Region, Khammam District 1;
ii) V. Balaswamy vs Government of India and others 2 1 2005 SCC Online AP 986 2 2022 SCC Online TS 2638: (2023) 1 ALD 401 LNA,J WP(TR) No.4844 of 2017 8
6. The learned Special Government Pleader contended that petitioner had absented from Grampanchayat election duty with arm and ammunition allotted to him without leave or prior permission from the competent authority and thereby violated the APCS Conduct Rules, 1964 and on enquiry, petitioner was rightly awarded punishment of removal from service after giving due opportunity to the petitioner.
6.1. He further submitted that petitioner himself admitted in his written statement that he became absent from the duty along with arm and ammunition allotted to him and failed to submit any medical evidence to show that he suffered ill health. Further, earlier petitioner was awarded punishments for his absent on several occasions, which shows the attitude of the petitioner towards his legitimate duty.
6.2. He further submitted that the area of Paloncha, Khammam district is highly extremist effected area and the act of petitioner shows that he exhibited gross negligent of duty by absenting himself with the arm and ammunition. He further submitted as held by the Hon'ble Apex Court, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, LNA,J WP(TR) No.4844 of 2017 9 the court cannot interfere with the same and finally, prayed to dismiss the writ petition.
6.3. The learned Special Government Pleader relied on the following decisions:
i) State of U.P. and others vs. Ashok Kumar Singh and another 3;
ii) Mithilesh Singh vs. Union of India and others 4;
iii) Decision of Hon'ble Apex Court in Union of India and others vs. Bishamber Das Dogra (Civil Appeal No.7087 of 2002 dated 26.04.2009) Consideration:
7. Petitioner was not on duty from 30.07.2013 at 0500 hours to 04.08.2013. Petitioner contended that despite his ill-health, he was deputed to Gram Panchayat election bandobust duty at Paloncha; that he along with ARSI and others went to Kothagudem and reported to CI of Police Paloncha on 29.07.2013 at 1600 hours and while waiting for instructions, on invitation, he went to his daughter's house with the arm and ammunition allotted to him, where he suffered ill health and taken treatment, reported back duty and the ARSI asked him to report before the CI of Police and thus, he could not attend the election bandobust duty, and returned back to Khammam and took treatment and reported duty on 04.08.2013.
3 (1996) 1 SCC 302 4 (2003) 3 SCC 309 LNA,J WP(TR) No.4844 of 2017 10
8. Perusal of impugned order would show that after framing charge against the petitioner, an enquiry officer was appointed, who conducted enquiry and submitted his findings holding that charge is proved against the charged officer. Further, the said finding of the enquiry officer was communicated to the petitioner calling for his further representation and he submitted the representation. The 4th respondent, after going through the representation of the petitioner, findings of the E.O., awarded the punishment of removal from service. Aggrieved by the same, the appeal and revision preferred by the petitioner were rejected.
9. On analysis of facts and material placed on record, what emerges is that admittedly, the petitioner was absent from duty and an enquiry was conducted and the charge was proved. The petitioner failed to explain the reasons for his absent with cogent evidence i.e., medical evidence. Further, Paloncha town, where the petitioner was deputed to election bandobust duty, is highly extremist effected area and being a member of disciplined force, he could not move single with arms and ammunition. However, petitioner in his written statement himself admitted that he became absent from duty along with arm and ammunition, proceeded to his daughter's house, which is gross negligence of duty and is contrary to Rule 3 of APCS Conduct Rules, 1964.
LNA,J WP(TR) No.4844 of 2017 11
10. In R.Mohan (supra), the learned single Judge of erstwhile High Court of Andhra Pradesh, held as under:
"6. It is always the prerogative of an employer to regulate the conduct of the employees and to impose punishment wherever it becomes necessary. But, mere existence of power does not justify the exercise of it. Absence for one day in an organization like APSRTC, by no stretch of imagination can result in the imposition of punishment of removal from service.
7. In the order of removal, the respondent has referred to earlier instances of absence of the petitioner. Here it is to be noticed that in disciplinary proceedings, the past conduct of an employee is taken into account, to examine whether there exist any extenuating circumstances in the matter of imposition of punishment. In other words, where the outcome of the enquiry warrants imposition of a particular punishment, the past conduct can be referred, to see whether the proposed punishment, can be reduced in any manner. Such conduct is never taken into account, to enhance a punishment, which is warranted as a result of the enquiry. In such an event, it becomes an aggravating and an extenuating factor. If the charges proved against an employee, warrant not so severe a punishment, the past conduct cannot be a factor to enhance the same. Viewed from this angle, the approach of the Depot Manager, the 2nd respondent herein, cannot be sustained."
11. In Ashok Kumar Singh (supra), the Hon'ble Apex Court held as under:
"7. Strangely, the High Court interfered with the punishment of removal, while concurring with the findings rendered against the first respondent on the charges levelled against him, by observing as follows:
"The Presiding Officer of the Tribunal has passed a very detailed order in which he enumerated the circumstances under which the inquiry was conducted. The enquiry officer found the petitioner to have absented from duty on several occasions, totalling 251 days during the year 1981- 82 while posted at Police Station Ram Sanehi Ghat, 93 days in 1982 while posted at Police Station Safdarganj and from 28-2-1984 onwards on being subsequently posted at Police Station Ram Sanehi Ghat. The petitioner has submitted before the Tribunal as well as here that during all along this period he had fallen ill and he sent regular applications for grant to leave along with the medical certification. No such proof was ever filed by the petitioner before the Tribunal.
LNA,J WP(TR) No.4844 of 2017 12 *** In the present case the only charge against the petitioner was that he absented himself from duty for long periods although it was his case that he applied for grant of leave. Even if it is assumed that the petitioner, against whom there appears to be no charge of misconduct of grave nature, has proved his absence from duty would not amount to such a grave charge for which the extreme penalty of dismissal may be imposed. In view of the fact that the petitioner has offered/not to claim arrears of salary as well as he assurance (sic) this Court that he would discharge his duties faithfully and sincerely this Court is of the view that extreme penalty imposed against the petitioner does not commensurate with the gravity of the charge, hence this writ petition deserves to succeed on this point. However, it will be open for the opposite parties to impose any minor punishment against the petitioner.
In view of what has been indicated hereinabove the writ petition succeeds. The order of dismissal passed against the petitioner contained in Annexure 3 is quashed. The opposite parties will reinstate the petitioner on duty. However, it will be open for the opposite parties to impose any minor punishment upon the petitioner considering the charges. It is made clear that the petitioner will be entitled only to the extent of one fourth of the amount as back wages."
8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge"
especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."
12. In Mithilesh Singh (supra), the Hon'ble Apex Court held as under:
"8. Rule 147(vi) deals with the case of absence without proper intimation. A mere application for grant of leave cannot be construed to be a proper intimation for absence. Rule 104 LNA,J WP(TR) No.4844 of 2017 13 indicates various modalities governing grant of leave. There is prohibition on any member of the Force to leave station even on holidays without specific permission of the authority empowered to grant casual leave. These modalities having been enumerated in Rule 104 clearly bring out the essence of discipline, which is required to be observed. Absence from duty without proper intimation is indicated to be a grave offence warranting removal from service. Therefore, mere making an application for leave cannot be construed to be of any consequence in the background of the strict requirement of giving proper intimation. Even if it is accepted that there was intimation, that by no such imagination can be construed to be a proper intimation for diluting the requirement of obtaining permission before absenting from duty. Stress is on the expression "proper". It means appropriate, in the required manner, fit, suitable, apt. The mere making of a request of leave, which has not been accepted is not a proper intimation. It cannot be said that the said word is a surplusage. The intention of the legislature is primarily to be gathered from the language used, and as a consequence a construction which results in rejection of words as meaningless has to be avoided. It is not a sound principle of construction to brush aside word(s) in a statute as being inapposite surplusage; if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain. The authorities were, therefore, justified in holding that he was guilty of the offence of absence from duty without proper intimation.
9. The only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the court cannot interfere with the same. Reference may be made to a few of them. (See : B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] , State of U.P. v. Ashok Kumar Singh [(1996) 1 SCC 302 : 1996 SCC (L&S) 304 : (1996) 32 ATC 239] , Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] , Union of India v. J.R. Dhiman [(1999) 6 SCC 403 : 1999 SCC (L&S) 1183] and Om Kumar v. Union of India [(2001) 2 SCC 386 :
2001 SCC (L&S) 1039]).
10. We find from the factual position, which is undisputed that the appellant was posted at Taran Taran in Punjab, a terrorist-
affected area and was, at the relevant time, working in the Railway Protection Special Force. Any act of indiscipline of such an employee cannot be lightly taken. In Ashok Kumar Singh case [(1996) 1 SCC 302 : 1996 SCC (L&S) 304 : (1996) 32 ATC 239] the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly.
LNA,J WP(TR) No.4844 of 2017 14 As noted by the Division Bench of the High Court, penalty of removal from service is statutorily prescribed. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. No mitigating circumstance has been placed by the appellant to show as to how the punishment could be characterized as disproportionate and/or shocking. On the contrary as established in the disciplinary proceedings, the appellant left the arms and ammunition unguarded and not in any proper custody. This aggravated the aberrations. Therefore, the order of removal from service cannot be faulted. There is no reason to interfere with the orders of the Division Bench of the High Court."
13. In Bishamber Das Dogra (supra), the Hon'ble Apex Court held as under:
"In view of the above, it is evident that it is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or discipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require."
14. From the above decisions, the Hon'ble Apex Court observed that the scope of interference by this Court with the punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the Court cannot interfere with the same and penalty of removal from service is statutorily prescribed. Further, as established in the disciplinary proceedings, the petitioner in the present case had absented from Grampanchayat election bandobust duty with arms and ammunition without prior permission or leave. The medical certificate issued by Dr.Shaik Babujan, Dy.Civil Surgeon, District Hospital, Khammam, by which, the medical officer advised rest LNA,J WP(TR) No.4844 of 2017 15 from 29.07.2013 to 04.08.2013, is disputed by the respondent on the ground that the petitioner was very much present at Paloncha on the entire day of 29.07.2013. Further, the petitioner failed to produce any material to substantiate his contention that he fell in sick and had taken treatment at Khammam from 30.07.2013 to 04.08.2013. Therefore, the order of removal from service cannot be faulted.
15. The facts in V.Balaswamy (supra) relied upon by the learned counsel for petitioner are distinguishable to the facts in the present case and therefore, the said decision does not come to the aid of the petitioner.
16. In considered opinion of this Court, Writ Petition is devoid of merits and petitioner failed to make out any case to substantiate his contentions, warranting interference by this Court with the impugned order. Thus, Writ Petition fails and accordingly, dismissed. There shall be no order as to costs.
17. Pending miscellaneous applications, if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date:05.01.2024 kkm LNA,J WP(TR) No.4844 of 2017 16 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION (TR) NO.4844 OF 2017 Date: 05.01.2024 kkm