Telangana High Court
B Manogilal Naik, Khammam Dist vs Divl Forest Offr, Khammam Dist And 4 ... on 7 July, 2023
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE PULLA KARTHIK
W.P No.3694 of 2013
ORDER:(Per the Hon'ble Sri Justice Pulla Karthik) Aggrieved by the order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, "the Tribunal") in O.A.No.3906 of 2009, which was passed along with O.A.No.3984 of 2009, dated 04.06.2012, the present writ petition is filed.
2. The brief facts of the case are as under:
The petitioner, while working as Forest Section Officer in Adlapalli Section, was issued a charge memo, vide Proc.RC.No.195/2004/K2, dated 10.03.2005, on the ground that he had drawn study scholarship of Rs.28000/- from Project Officer, ITDA being a Government employee and also continuing as General Secretary to a private organisation i.e. Santhivanam Educational and Social Development Society at Hyderabad vide Regd.No.3704/96, AKSJ & PKJ WP.No.3694 of 2013 2 dated 24.09.2001 and called for his explanation. He was placed under suspension by the second respondent on 13.04.2005, on the ground that a criminal case was filed against him in Cr.No.50 of 2004 under section 420 of IPC on the file of Bhadrachalam town Police Station.
3. Subsequently, a second charge memo was issued on 18.05.2007 to the petitioner, alleging that he was gross negligent towards his duty by absconding from 01.03.2005 and called for his explanation to the charge memo. The petitioner submitted his explanation to the charge memos stating that he never absconded from duty and he had applied for sanction of five days of casual leave from 01.03.2005 on genuine grounds i.e. for attending written test for the post of Forest Range Officer. However, the petitioner intended to join duty on 07.03.2005, but in the meanwhile, he noticed that the police authorities of Bhadrachalam were searching for him in connection with the alleged complaint made by ITDA for drawing scholarship. The petitioner was arrested by police on AKSJ & PKJ WP.No.3694 of 2013 3 10.03.2005 and released on 15.03.2005. After release on bail, when he approached the Division, he was informed that he was placed under suspension by the second respondent vide proceedings RC.No.195/2004/K2, dated 13.4.2005. Therefore, the charge against the petitioner that he was absconding from duty does not arise and is far from truth. Subsequently, the petitioner was removed from service vide proceedings Rc.No.708/2008/P4, dated 25.02.2009. Questioning the said proceedings, the petitioner filed O.A.No.3906 of 2009.
4. The Tribunal on hearing both sides and on consideration of the material on record dismissed the said O.A. vide order dated 04.06.2012 along with O.A.No.3984 of 2009. Questioning the order passed in O.A.No.3906 of 2009, the present writ petition is filed.
5. Heard both sides and perused the record.
6. Learned counsel appearing for the petitioner submitted that the petitioner was issued a charge memo on 10.03.2005 on two charges and in pursuance of the said AKSJ & PKJ WP.No.3694 of 2013 4 allegations, he was suspended from service on 13.4.2005. Therefore, it is an obligation on the part of the respondents to conduct enquiry, if they choose so, within reasonable time and finalise the issue. He also contended that the Tribunal failed to appreciate that the very issuance of the second charge memo dated 18.05.2007 on the allegation of so-called absconding of duty by the petitioner from 01.03.2005 was a clear case of misconception and misdirected action and the issuance of second charge memo was unwarranted and impermissible. It is further contended that neither an enquiry officer nor a presenting officer was appointed and neither witnesses were examined nor documents were marked.
7. Learned counsel further submitted that a reading of the enquiry report would show that there are no findings with regard to the first two allegations pertaining to the first charge memo, dated 10.3.2005, and the very issuance of second charge memo is baseless. Learned counsel for the petitioner further contended that the reading of enquiry AKSJ & PKJ WP.No.3694 of 2013 5 report would show that the enquiry was conducted belatedly, which vitiates the entire proceedings.
8. Learned Government Pleader appearing for the respondents submitted that an Article of charge with two charges was issued by the first respondent vide Procs.Rc.No.195/2004/K2, dated 10.03.2005 against the petitioner and he was placed under suspension by the second respondent vide Proc.Rc.No.195/2004/K2, dated 13.04.2005 due to involvement in a criminal case, which were communicated to him by way of registered post to his house address directing him to report duty within seven days from the date of receipt of the order. But, neither the petitioner approached the second respondent nor submitted any application.
9. Learned Government Pleader further submitted that since the petitioner was continuously absent from duty for more than one year, another Article of charge was issued vide Rc.No.195/2004/K2, dated 18.05.2007 by the Divisional Forest Officer, Wild Life Management, Palvoncha AKSJ & PKJ WP.No.3694 of 2013 6 i.e. second respondent and sent through Forest Range Officer, Chatakonda for service. Since the petitioner was not available at his house, the Article of charge was handed over to his parents under the cover of panchanama before VAO, Thavurya Thanda.
10. It is further submitted that an oral enquiry under Rule 20 (5) (a) of Andhra Pradesh Civil Services (Classification, conduct and Appeal) Rules, 1991 (hereafter "CCA Rules, 1991) was conducted on 7.8.2007, for which the petitioner attended and gave a statement before the second respondent stating that he was absconding duty from 01.03.2005 and he was informed about his suspension by his parents.
11. Learned Government Pleader further submitted that the petitioner applied for C.L. from 01.02.2004 to 05.02.2004 but did not join duty till 25.04.2004 and again absented from 02.11.2004 to 30.11.2004 and again absented from 01.03.2005 till the date of suspension i.e. on 13.04.2005. He also contended that it is borne out from AKSJ & PKJ WP.No.3694 of 2013 7 the records that the petitioner absconded from duty earlier also and therefore, he was habituated in absconding from duty. It is further submitted that though it is categorically mentioned in the suspension order that the petitioner should not leave the head quarters without obtaining prior permission of the second respondent, but his whereabouts were not known. As such, the respondent could not serve the Article of charge issued in Proc.Rc.No.195/2004/K2, dated 10.03.2005, and the suspension order issued vide proceedings in Rc.No.195/2004/K2, dated 13.4.2005. As there is no other option to the second respondent, he gave a press notification to the daily newspapers on 17.01.2007, directing the petitioner to report within seven days, but he did not report till 20.06.2007 and only on 21.06.2007 he appeared before the respondent. Thus, the whereabouts of the petitioner were not known till 20.6.2007 and he did not cooperate the enquiry officer to complete the enquiry with regard to the allegation of charges framed against him.
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12. Learned Government Pleader further submitted that the second respondent is having the disciplinary power and as such, he has issued Article of charge and after obtaining defence statement from the petitioner, he conducted an enquiry (Personal hearing) and the charges levelled against him were proved, drawn findings and thereafter, the said findings were sent to Divisional Forest Officer (D.F.O.), Palvancha.
13. The findings were sent to the petitioner directing him to submit further explanation if any, within seven days. But, the petitioner has not submitted his explanation on the said findings till 23.3.2008. Therefore, the findings were sent to DFO (T) Palvancha on 24.3.2008. It is further submitted that respondent No.1 had issued letter in reference No. 708/P4, dated 20.9.2008, directing the petitioner to submit reasons, as to why action should not be taken against him for not attending duty from 01.03.2005, for which he did not give any proper explanation. Therefore, the order of the first respondent vide Procs.No.708/08/P4, dated 25.02.2009 removing the AKSJ & PKJ WP.No.3694 of 2013 9 petitioner from service was based on the continuous absence from duty for a period of more than one year and is proper and the said order was issued as per Government order vide G.O.Ms.No.260 GAD(SCRC) Department, as per procedure laid down in CCA Rules, 1991 and as per FR-18 Rule 5-A of AP Leave Rules, 1937.
14. Learned Government Pleader submitted that the Tribunal was justified in dismissing the O.A. and hence, prays to dismiss the writ petition.
15. This court has taken note of the submissions made by the respective Counsel.
16. A perusal of the record discloses that the removal order was issued for unauthorised absence of the petitioner from 01.03.2005 to 02.06.2007. An Article of charge was framed against the petitioner vide Proceedings in Rc.No.195/2004/K2, dated 18.5.2007, wherein it was stated that he submitted an application for sanction of casual leave from 01.03.2005 to 05.03.2005 for attending the Forest Range Officer's written examination and his AKSJ & PKJ WP.No.3694 of 2013 10 whereabouts were not known since 01.03.2005. It is manifest from the record that the petitioner was not attending his legitimate duties and not evincing interest in execution of works i.e. collection of fee and protection of forests and he was in the habit of absconding from duty. He applied for casual leave from 01.02.2004 to 05.02.2004 but did not join duty till 25.4.2004 and again absented from 02.11.2004 to 30.11.2004 and again absented from 01.03.2005 till the date of suspension i.e. 13.04.2005. The Article of charge and suspension order could not be served on the petitioner, as his whereabouts were not known. It was also found that an Article of charge was issued to him in another case for cheating the Government by declaring as un-employee, though he was a Government employee as already noted. In the enquiry report, it was stated that the Article of charge framed against him could not be served, as he was not found present. As such, it was handed over to his parents under the cover of panchanama on 20.6.2007.
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17. The enquiry report of the D.F.O., Wild Life Management was communicated to the petitioner on 20.09.2008 for submission of the written statement and was also directed to appear before the D.F.O., Palvoncha for personal hearing. The disciplinary authority came to conclusion that the petitioner was continuously absconding from duty. Hence he was removed from services as per GO.Ms.No.260 G.A.(Ser.A) Department, dated 04.09.2003. As the petitioner was working under the control of the D.F.O. (Wild Life Management), the enquiry was conducted by him and he submitted the enquiry report to the D.F.O. (T), Palvoncha, who, in turn, communicated the enquiry report to the petitioner and on receipt of his explanation, the impugned order was passed.
18. Having regard to the aforesaid discussion, we are of the considered opinion that the respondents complied with the provisions of the CCA Rules, 1991 and there are no compelling reasons for us to find fault with the order, dated 25.02.2009, passed by the first respondent removing the petitioner from the services.
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19. In view of the above, this Court does not find any merits in the writ petition warranting interference. Hence writ petition is liable to be dismissed.
20. Accordingly, the writ petition is dismissed as devoid of merits. There is no order as to costs.
Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
________________________________ ABHINAND KUMAR SHAVILI, J _____________________ PULLA KARTHIK, J 07-07-2023 BV