Telangana High Court
B.Saidulu vs The State Of Telangana on 13 June, 2023
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.4599 OF 2023
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus declaring the proceedings of respondent No.3 dt.08.03.2021 confirming the orders of respondent No.4 vide orders dt.07.08.2020 who, in turn, has confirmed the orders of respondent No.5 dt.28.05.2020 removing the petitioner from his service as P.C.90, Nakrekal Police Station, Nalgonda District, as illegal, arbitrary and contrary to law and in violation of the Police Manual and consequently to set aside the same and to reinstate him into service as Police Constable with all attendant and consequential benefits and to pass such other order or orders as deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was appointed as a Civil Police Constable on 14.12.1984. The petitioner claims to have been discharging his duties without any complaint. It is submitted that on 04.02.2016 the petitioner was pass-ported at 12-00 hours with instructions to report before Reserve Inspector of Police, AR Nalgonda for medical examination to W.P.No.4599 of 2023 2 undergo three (3) months pre-promotional training course of PCs fit to act as HC (civil) at PTC, Mamnoor, Warangal District while he was working as P.C. at Chundoor P.S., Nalgonda District. It is submitted that in accordance with the said instructions, the petitioner proceeded to Nalgonda headquarters from his station, i.e., Miryalaguda where his family was residing in a bus to attend for the medical examination and all of a sudden, he developed chest pain and fell down in the bus and thereafter, his family members took him to Kamineni hospital for medical treatment where he underwent treatment for a period of three (3) months and thereafter, as per the doctor's advice, he stayed at home for bed rest. It is submitted that due to these reasons, neither the petitioner nor his family members could inform his higher officers about the reasons for his absence. It is submitted that the petitioner had no intention of absenting from his duties except for the serious heart disease. It is submitted that after his health was cured and after obtaining fitness certificate, he reported for duty before the Superintendent of Police, Nalgonda on 18.06.2018. It is submitted that the medical certificate issued by the Civil Assistant Surgeon, Osmania General Hospital, Hyderabad for the period 05.02.2016 to 15.06.2018 was filed along with the joining report and the petitioner requested the authorities W.P.No.4599 of 2023 3 to take him into duty. The petitioner was accordingly taken into duty vide letter dt.18.06.2018 and he joined in the said duty and worked till his removal from service on 28.05.2020.
3. It is submitted that when the petitioner did not report for duty on 05.02.2016, respondent No.5 police issued orders declaring the petitioner as a deserter vide proceedings dt.06.04.2016 and charges were also framed against the petitioner for unauthorized absence, i.e., without leave or permission from 05.02.2016. It was stated that since the unauthorized absence exceeded 21 days by 25.02.2016, orders were issued on 06.04.2016 declaring him as a deserter with effect from 05.02.2016. Basing on the articles of charge dt.10.05.2016, after the petitioner joined the duty on 18.06.2018, respondent No.5 issued proceedings dt.06.07.2018 for oral enquiry against the petitioner by appointing an Enquiry Officer, i.e., the Circle Inspector of Police, Nagarjuna Sagar, Nalgonda and it was clearly mentioned in the proceedings that the Enquiry Officer should complete the enquiry within a period of three (3) months and submit his enquiry report in the prescribed format. According to the learned counsel for the petitioner, the enquiry officer conducted the oral enquiry on 11.05.2020, i.e., after W.P.No.4599 of 2023 4 lapse of the tenure of the proceedings of the oral enquiry. The petitioner also attended before the Enquiry Officer and submitted his written statement. Thereafter, the Enquiry Officer prepared the minutes of the oral enquiry and submitted the same to respondent No.5 on 18.05.2020, i.e., after completion of two years of appointment of the Enquiry Officer. Therefore, according to the learned counsel for the petitioner, such oral enquiry report is illegal and contrary to law and against the principles of natural justice and basing on the said enquiry report, respondent No.5 has issued proceedings in Memorandum C.No.10/A6- 2/0E/2016 dt.21.05.2020 directing the petitioner to submit his written statement of defence, if any, within ten (10) days from the date of receipt of the Memo and subsequently, final orders dt.28.05.2020 were passed removing the petitioner from service. Challenging the same, the petitioner filed an Appeal which was also dismissed and his Revision Petition was also dismissed. Therefore, the present Writ Petition has been filed.
4. Learned counsel for the petitioner reiterated the above contentions and submitted that the petitioner had fallen sick during the course of his employment and therefore, was immediately rushed to the W.P.No.4599 of 2023 5 hospital and had to take bed rest for a period of two (2) years and on being declared fit only, he has reported for duty and was also taken into duty. He submitted that the action of the respondents in not considering the explanation of the petitioner about his ill-health and in rejecting the same and in removing the petitioner from service is not only unsustainable, but is also highly excessive and is not commensurate with the nature of the alleged misconduct. He further submitted that the Enquiry Officer was appointed with a direction to conduct the enquiry within a period of three (3) months and to submit the report, whereas the Enquiry Officer has conducted the enquiry and submitted the report after lapse of two (2) years and therefore, such an enquiry report has no legs to stand. Even with regard to the merits of the removal order, the petitioner relied upon the orders of the authorities below. The learned counsel for the petitioner further submitted that the petitioner was removed from service just three (3) days prior to his retirement and the entire unblemished service of 30 years put in by him has been set at naught by the order of removal from service.
5. Learned Special Government Pleader representing the respondents, however, submitted that in the disciplined force such as W.P.No.4599 of 2023 6 Police Department, unauthorized absence is viewed as a serious misconduct and strict action has to be taken. It is submitted that though the petitioner has taken a stand that he was suffering from heart disease and has taken treatment in Kamineni Hospital, Hyderabad and subsequently, in Osmania General Hospital, Hyderabad, he has failed to file any medical certificate in support of such a contention. He submitted that the medical certificates filed by him also speak only about knee and joint pains and not heart disease as claimed by him and therefore, the petitioner has not only taken the ground of ill-health but has filed fabricated documents to support his contention and therefore, his contentions could not be considered. As regards the punishment being incommensurate with the nature of alleged offence committed by the petitioner, the learned Special Government Pleader relied upon the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan and another Vs. Mohd. Ayub Naz1.
6. Having regard to the rival contentions and the material on record, this Court finds that the unauthorized absence from duty by the petitioner is not in dispute. The petitioner admitted the fact that he has failed to inform the officials of the respondent authorities about his 1 (2006) 1 SCC 589 W.P.No.4599 of 2023 7 illness and has not taken permission for remaining absent for a long period of two (2) years. Being a public servant and particularly in the police department, it is the duty of the petitioner to inform his higher- ups about the reasons for his absence and seek their permission for such absence. Though the learned counsel for the petitioner argued that the absence was not intentional but was due to the reasons beyond the control of the petitioner, this Court is unable to accept that he was not in a position to approach his higher officials with a representation for permission to remain absent from discharging his duties due to the health condition as stated by him. Therefore, the misconduct has been proved. However, whether the removal from service for such misconduct is commensurate with the nature of the offence is the question before this Court. This Court is of the opinion that when a major punishment of removal from service is to be imposed, a proper departmental enquiry ought to have been conducted. As pointed out by the learned counsel for the petitioner, the enquiry was conducted orally and no witnesses or documents were examined before holding the petitioner as guilty of the charges. Therefore, the punishment of removal from service is excessive and arbitrary.
W.P.No.4599 of 20238
7. The normal course of action in such circumstances would be to remand the matter to the authorities to reconsider the quantum of punishment imposed on the petitioner. Since the petitioner has retired from service and taking into consideration the long service of 30 years put in by the petitioner, this Court deems it fit and proper to set aside the punishment order of removal from service and remand the case to the respondents for reconsideration of the issue including the quantum of punishment.
8. The Writ Petition is accordingly allowed. No order as to costs.
9. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 13.06.2023 Svv