Telangana High Court
Karamath Ali vs The State Of Telangana on 14 February, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 34586 of 2021
ORDER:
In this writ petition, the petitioner is seeking a writ of certiorari calling for the records in relation to the orders passed by the respondent No.2 in proceedings dated 03.12.2021 imposing punishment of removal from service and to declare the same, as illegal, arbitrary, unconstitutional and in violation of principles of natural justice and consequently to declare that the petitioner is entitled to continue in service without there being any break, treating the period from reporting to duty to issuing posting orders as compulsory waiting in service for all purposes with all consequential attendant benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as a permanent Mazdoor in the respondent No.2 establishment on 11.07.1986 on compassionate grounds in view of the death of his father. In the year 2008, the petitioner claims to have suffered from LBA Sciatic and back pain and absented from duty from 03.01.2008 to 30.12.2009 on the ground that the doctor advised him to take 2 TMD,J W.P.No. 34586 of 2021 full bed rest. The petitioner claims to have obtained fitness certificate issued by the Civil Surgeon, Osmania General Medical Hospital and submitted his joining report on 31.12.2009 with a request to permit the petitioner to join duty. However, on 02.01.2010, the petitioner was informed that the leave and joining report of the petitioner were not accepted and that they were forwarded to the Chief Engineer for necessary orders. On 19.01.2010, the Chief Engineer Officer asked the petitioner for explanation as to why he shall not be deemed to have resigned from service for unauthorized absence exceeding one year. On 27.08.2010, the petitioner submitted a reply explaining about his health conditions and requested to permit him to join duty. He also requested for sanction of leave for the period from 03.01.2008 till the date of his joining. Thereafter, there was no communication from the department and according to the petitioner, he made several attempts to join the duty, but he was not permitted.
3. It is submitted that on 15.04.2019, Articles of Charges were issued to the petitioner framing three charges and the letter dated 02.01.2010 of the Research Office was the basis for framing of charges. On 20.01.2020, Enquiry Officer was 3 TMD,J W.P.No. 34586 of 2021 appointed quoting gazette publication and thereafter, on 05.02.2020 Enquiry Officer instructed the petitioner to appear before him on 12.02.2020. It is submitted that the petitioner appeared on the said date, but on 02.03.2020 the Chief Engineer in his letter stated that the report of Enquiry Officer was not in a proper form and directed the Enquiry Officer to submit the Enquiry Report in proper form on or before 12.03.2020. Thereafter, the Enquiry Report was submitted on 01.06.2020 and the Joint Director asked the petitioner to submit his explanation against the findings of the Enquiry Officer dated 24.07.2020. However, it is stated that the report of the Enquiry Officer was not communicated to the petitioner along with the said memo. Therefore, the petitioner asked the office for the report, but it was stated that the report cannot be given and it was informed that it was sent to the higher authorities. It is submitted that on 20.10.2021, a show cause notice for removal from service was issued to the petitioner for submitting his reply within a period of fifteen days and accordingly, a reply dated 10.11.2021 was submitted. It is submitted that without considering any of the points submitted by the petitioner in his reply, the petitioner was removed from service vide proceedings dated 03.12.2021. Challenging the 4 TMD,J W.P.No. 34586 of 2021 same, the present writ petition has been filed by raising the following grounds on appeal:
i) The impugned orders are contrary to law and probabilities of the case.
ii) It is submitted that the respondents issued Articles of Charges on 15.4.2019 under Rule 20. In the subject itself it is mentioned that "penalty of removal from service". It is submitted that the question of mentioning about penalty in the Articles of Charges is unknown to law and contrary to Rule 20 of CCA Rules and in violation of Articles 14 and 311(2) of Constitution of India and principles of natural justice. On the said ground itself the charge memo and Impugned Orders are to be declared as illegal, void and arbitrary.
iii) 3 charges were framed in respect of unauthorized absence without obtaining permission from the Competent Authority. Annexure-3 provides list of documents. Letter dt.2.1.2010 of Research Officer is the basis. The said copy was not communicated to the petitioner. There are no witnesses cited. On 20.1.2020 Enquiry Officer was appointed and directed to submit report within one month. But it appears that from the impugned orders the E.O., submitted report on 24.7.2020.
Though it is stated in the impugned orders that copy is communicated along with memo dt.9.11.2020 in fact no such copy of the report was communicated. Even in the other notice dt.3.3.2021, no report was enclosed to the said notice to raise objections. Therefore, without communicating the report of Enquiry Officer the question of imposing punishment of removal 5 TMD,J W.P.No. 34586 of 2021 from service is contrary to the Constitutional Bench Judgment in Managing Director, ECIL Vs. B.Karunakar(1993 (4) SCC 727). Thereby the impugned orders are illegal and arbitrary.
iv) Charge itself is unauthorized absence. But the impugned order was passed taking into account of his past conduct and the earlier punishment imposed. It is settled principle of law that unless the charge is framed providing an opportunity to the Government servant to deny the same the question of imposing any punishment does not arise. In the instant case punishment was imposed based on past punishment (5) and there is no charge memo against 5 past instances. The question of taking the said punishment in to consideration for imposing penalty does not arise and thereby the entire punishment is illegal and arbitrary.
v) It is settled principle of law that Show Cause Notice is dispensed under 42nd Amendment to the Constitution. Contrary to the same on 20.10.2021 Show Cause Notice was issued proposing penalty of dismissal from service without even communicating the report of Enquiry Officer. Therefore, indication of punishment in Show Cause Notice before communicating the report violates Article 14, 16, 21 and 311(2) of Constitution of India and contrary to the Constitutional Bench Judgment referred above.
vi) Though there is clear evidence that the petitioner reported to duty on 31.12.2009 with an endorsement, the respondent illegally not permitted the petitioner to duty till 31.12.2020, thereby the said period cannot be treated as 6 TMD,J W.P.No. 34586 of 2021 unauthorized absence for the purpose of imposing penalty of removal from service. The period is to be treated as compulsory wait. Therefore, the impugned orders passed without any application of kind and accordingly the orders are illegal and arbitrary and contrary to the principles of natural justice.
vii) The respondent failed to conduct enquiry contemplated under Rule 20 R/w. 311(2) of Constitution of India. Though document dt.2.1.2010 of Research Officer was mentioned in the Annexure the same was not communicated and to prove the contents of the said documents the author of the said document was not examined. As per the law laid down by the Supreme Court the author of the document is to be examined to prove the contents or otherwise it can be treated that there is no evidence at all. Failure to consider the said issue renders the entire orders void and illegal.
viii) Except recording the statement by the Enquiry Officer no enquiry whatsoever under Rule 20, was conducted. No marking of documents. No examination of witnesses were taken place. In fact the disciplinary authority failed to prove the charge and thereby the question of imposing major penalty does not arise.
ix) Inspite of raising specific issues either on facts or of law the respondents while passing the impugned orders not considered any of the points raised and thereby the impugned orders are illegal and arbitrary. The period from reporting to duty till orders is to be treated as compulsory wait. 7
TMD,J W.P.No. 34586 of 2021
4. Learned counsel for the petitioner has relied upon the averments made in the writ affidavit and also the grounds raised therein and submitted that this is a case of clear violation of principles of natural justice. It is submitted that though the charge memo referred to the unauthorized absence to the duty from 03.01.2008 to the date of charge memo, it has to be seen that the petitioner was unauthorizedly absent to duty only from 03.01.2008 to 30.12.2009. It is submitted that the petitioner has applied for medical leave for the said period by enclosing the necessary medical certificates, but the same were not accepted by the authorities. It is submitted that the petitioner had filed joining report on the expiry of the leave period, but the same was not accepted and thereafter, again on 27.08.2010, the petitioner had further requested to permit him to join duty, but no decision was taken by the department and it was only in the year 2019, that the charge memo was issued for the unauthorized period. It is submitted that the period from 01.01.2010 cannot be considered as unauthorized absence because the petitioner was ready to join duty, but it was the respondent, who did not permit him to do so and treating the entire period from 03.01.2008 to 30.12.2020 as unauthorized absence is not correct and without any basis. It is further 8 TMD,J W.P.No. 34586 of 2021 submitted that though the official memo dated 09.11.2020 referred to in the letter of impugned proceedings dated 03.12.2021 mentions that the Enquiry Report is enclosed therewith, said Enquiry Report was never given to the petitioner. It is submitted that the petitioner, in his reply to the show cause notice for punishment, had clearly stated so but the respondents have not taken any corrective steps to furnish the Enquiry Report to him. Therefore, it is in clear violation of principles of natural justice.
5. It is further submitted that the Enquiry Report or order of the disciplinary authority must curtail itself to the charges framed in the charge memo and cannot travel beyond the same, whereas in this case, the Enquiry Report as well as the order of the disciplinary authority referred to the previous instances of absence and punishments imposed on the petitioner, which itself is in violation of the Service Rules. It is further submitted that the show cause notice itself indicated the punishment of removal to be imposed to the petitioner, which clearly shows the pre-determine mind of the respondents for removing the petitioner from service, even before affording him an opportunity of hearing. Therefore, as held by the Hon'ble 9 TMD,J W.P.No. 34586 of 2021 Supreme Court in the case of Oryx Fisheries Private Limited Vs. Union of India and Others 1, such a notice is not maintainable. It is also submitted that since the petitioner was a permanent employee, the provisions under Rule 20 of Service Rules were required to be followed and an inquiry was to be conducted by examining the witnesses and marking the documents on which the respondents have placed reliance upon. It is submitted that none of the documents have been marked nor any witnesses were examined and therefore, the report of such an inquiry, cannot be relied upon for imposition of any punishment much less the punishment of removal from service. It is submitted that an Enquiry Report is therefore, based on surmises and presumptions and cannot be relied upon.
6. Learned counsel for the petitioner also placed reliance upon the decision of the Hon'ble Supreme Court in the case of M.V.Bijlani Vs. Union of India and Others 2, in support of his contentions where an inquiry is not properly conducted, the punishment on the basis of such inquiry, is not sustainable. He therefore, prayed for setting aside of the order of removal 1 (2010) 13 SCC 427 2 (2006) 5 SCC 88 10 TMD,J W.P.No. 34586 of 2021 from service and reinstatement of the petitioner into service with all consequential benefits.
7. Learned Government Pleader for Services-II, however, supported the impugned order and also relied upon the averments made in the counter affidavit. It is stated that the petitioner was a habitual absconder and therefore, the earlier behavior of the petitioner was referred to only to demonstrate the conduct of the petitioner in discharge of his duties and it did not form the basis for imposition of the punishment of removal from service. It is submitted that even after the communication that his leave and joining report have not been accepted, the petitioner has not made any attempt to join the duties even till the date of issuance of charge memo. It is submitted that the respondents have permitted the petitioner to join duty on 31.12.2020 pending disciplinary proceedings and he continued to be in duty till the impugned order of removal has been passed on 03.12.2021. It is submitted that the petitioner has not exhibited devotion to duty and therefore, the respondents had no option, but to impose the punishment of removal from service. It is further submitted vide memo dated 09.11.2020, the Enquiry Report has been communicated to the petitioner and 11 TMD,J W.P.No. 34586 of 2021 the petitioner was not correct that in stating that he was not served with the Enquiry Report and therefore, according to him, there is no violation of principles of natural justice and he therefore sought confirmation of the order of removal.
8. Having regard to the rival contentions and the material on record, this Court finds that initially, petitioner was unauthorizedly absent for a period two years i.e., from 03.01.2008 to 30.12.2009. On 31.12.2009, when the petitioner requested to permit him to join duty along with the medical certificates in support of his contention about the ill-health, the petitioner was not allowed to join duty. He was informed that the leave application has not been accepted and that it has been forwarded to the Chief Engineer for further orders. It is also not in dispute that the petitioner made another representation on 27.08.2010 to permit him to join the duty. Thereafter, there was no communication whatsoever either from the side of petitioner or from the respondents. When the petitioner did not join the duty, the respondents could have taken action in accordance with law. After communicating that the leave letter and joining report are pending with the Chief Engineer for necessary orders, the petitioner should but wait for further orders for joining the 12 TMD,J W.P.No. 34586 of 2021 duty. Nothing prevented the respondents from taking further course of action. The further course of action of issuing the charge memo was given only in the year 2019, i.e.., after a lapse of nearly nine years. The petitioner seems to have submitted his explanations after receipt of notices and it has been the case of the petitioner from the inception that the Enquiry Report has not been communicated to him. Therefore, this Court finds that instead of taking remedial measures of supplying the copy of the Enquiry Report to the petitioner, the respondents have proceeded with taking a decision of imposing the punishment of removal from service. Even the show cause notice indicates the punishment proposed/intended to be imposed on the petitioner. As held by the Hon'ble Supreme Court in the case of Oryx Fisheries Private Limited (cited supra), when a show cause notice mentions the major punishment to be imposed on the petitioner, it demonstrate a totally closed mind at the stage of show cause notice itself and is liable to be quashed. Further, as rightly pointed out by the learned counsel for the petitioner, the Enquiry Report, on the basis of which the impugned order of punishment was passed, does not refer to any examination of witnesses or marking of documents for coming to the conclusion that the charges against the petitioner have been proved. 13
TMD,J W.P.No. 34586 of 2021 Therefore, the Enquiry Report cannot be relied upon for imposing the proposed punishment.
9. In view of all these facts and circumstances, the punishment of removal from service is not sustainable and accordingly it is set aside. However, it is also to be mentioned that the conduct of the petitioner was also wanting in showing or demonstrating his willingness to join the duty. After 27.08.2010, where he submitted his willingness to join duty, the petitioner has not shown to have approached the respondents for resuming his duty. Therefore, the petitioner cannot be said to be vigilant in his approach. In view of the same, though the order of removal from service is set aside, this Court is of the opinion that the petitioner shall not be eligible for any backwages for the period from 03.01.2008 to till the date of the removal order. However, the period from 01.01.2010 till the date of the removal order shall be treated as on duty for the purposes of pensionary benefits only. It is open to the Government to consider the appropriate punishment to be imposed on the petitioner for the unauthorized absence to duty from 03.01.2008 to 30.12.2009 after following due process of law. 14
TMD,J W.P.No. 34586 of 2021
10. Accordingly, this writ petition is disposed of. There shall be no order as to costs.
11. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 14.02.2024 bak