Telangana High Court
V. Srinivas, Karimnagar District vs The Commandant, Srinagar 2 Others on 5 January, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.16323 OF 2004
ORDER
This is a Writ Petition filed by the petitioner under Article 226 of the Constitution of India seeking a Writ of Mandamus declaring the issue of Proceedings No.Estt/Dismiss.THQ/83/99/6257-70 dt.21.06.1999 by the 1st respondent and as confirmed by the 3rd respondent vide Proceedings No.Estt/Re-Inst/PB/2004/9896-900 dt.05.05.2004 as arbitrary and illegal and pass such other order or orders as this Court may deem fit and proper.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner was appointed as a Constable in the respondent organisation in the year 1988. In the year 1998, the petitioner had applied for earned leave with effect from 15.05.1998 to 13.07.1998, i.e., 60 days which was sanctioned to him. Thereafter, though he was supposed to join duty on 14.07.1998, he did not do so. Instead, he sought for extension of leave due to sickness. The petitioner was directed to submit medical documents in support of his sickness, but since he failed to submit the same, the leave was not granted. Thereafter letters were sent to the petitioner directing him to rejoin the duty. But since he failed to rejoin, for overstayal of leave or unauthorised absence, proceedings were initiated and after an ex parte enquiry, the petitioner was removed from service. Against the removal order, the petitioner W.P.No.16323 of 2004 2 filed W.P.No.7619 of 2000 in this High Court and the same was disposed of vide order dt.03.02.2004 directing the petitioner to avail the alternative remedy by approaching the appellate authority. Accordingly, the petitioner approached the appellate authority who confirmed the punishment order and challenging the same, the petitioner has filed this Writ Petition.
3. Learned counsel for the petitioner, Sri B. Sree Rama Krishna, submitted that it is not a case of unauthorised absence but it is a case of overstayal of earned leave and the respondents ought to have seen the reasonableness of the petitioner's explanation for the overstayal of the leave and ought not to have removed him from service. He submitted that the petitioner had sent telegrams and applications for extension of leave to the concerned authorities, but he was never intimated about rejection or otherwise of the said applications. He submitted that no notice was given to the petitioner even after appointment of the enquiry officer and nor was any show-cause notice given to him before passing the removal order. Therefore, according to him, the entire procedure is in violation of the principles of natural justice and therefore, the removal order should be set aside and the petitioner should be directed to be reinstated into service with all consequential benefits. In support of his contentions that principles of natural justice were not followed, he relied upon an e-mail communication from the Commandant of the respondent organization to the counsel for the respondents, wherein it was stated that the W.P.No.16323 of 2004 3 enquiry was conducted ex parte the petitioner without even issuing any notice to the petitioner. He also placed reliance upon a decision of the Hon'ble Supreme Court in Union of India and others Vs. Ram Bahadur Yadav1 for the proposition that in lieu of reinstatement with back wages, the Court may grant at least 50% of the back wages to the petitioner.
4. Learned counsel for the respondents, Smt. S. Siva Kumari representing the learned Assistant Solicitor General appearing for the respondents, on the other hand, relied upon the averments in the counter affidavit filed by the respondents and submitted that the petitioner never communicated about his ill-health or any other reasonable cause to the respondent organization and though he has claimed to be sick, he never produced any medical evidence in support of the same. Therefore, according to her, removal from service was a just punishment imposed by the respondents.
5. Having regard to the rival contentions and the material on record, this Court finds that the petitioner has overstayed his leave period and had been making applications to the respondent organization for extension of leave. This was acknowledged by the respondents in the order of removal. Therefore, it cannot be said that it is totally a case of unauthorised absence. It is a case where the question of reasonable explanation is to be considered. It is also stated by the petitioner that he reported for duty after overstayal, but he was 1 Civil Appeal No.9334 of 2010 dt.26.11.2021 W.P.No.16323 of 2004 4 not permitted to join on the ground that enquiry proceedings had been initiated against him. This contention of the petitioner has not been rebutted by the respondents in their counter affidavit. Further, though the claim of sickness has not been proved by the petitioner, the petitioner's overstayal of leave also cannot be said to be intentional and not without any reasonable cause. Therefore, this Court is satisfied that the punishment imposed, i.e., removal from service, was disproportionate to the gravity of the misconduct.
6. The Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another2 has considered similar circumstances. In that case also, the petitioner had been making specific requests for extension of leave and therefore it was held that it cannot be said that his absence was wilful. The Hon'ble Supreme Court at paras 16 to 19 has explained the term 'unauthorised absence' 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 wilful or because of compelling circumstances.
17. If the absence if the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to 2 AIR 2021 SC (Supp) 42 W.P.No.16323 of 2004 5 which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
7. In the case before this Court, by applying the above rationale, it can be clearly said that the absence of the petitioner cannot be termed as wilful absence. For this reason also the writ petition has to succeed.
8. Therefore, the Writ Petition is allowed and the petitioner is ordered to be reinstated into service without back wages but with notional continuity of service only for the purpose of retirement benefits. No order as to costs.
9. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 05.01.2022 Svv