THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 35118 OF 2016
ORDER:
This Writ Petition is filed by the petitioner challenging the impugned order dated 23.11.2009, terminating the services of the petitioner and the rejection orders passed by the appellant Revisional authority, dated 05.05.2010 and 14.05.2012 respectively and consequently to hold that the petitioner is entitled to reinstatement into service with all consequential benefits duly treating the period of 'absence' and 'suspension' as 'on duty' for all purposes and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. The brief facts leading to the filing of the present writ petition are that the petitioner was working as Armed Reserve Police Constable (ARPC) at District Armed Reserve, Khammam. Reportedly, during the period 25.05.2006 to 05.06.2006, he fell sick and reported sick as per the required procedure for the above period of 25.05.2006 to 2 PMD,J W.P.No.35118 of 2016 05.06.2006 and the petitioner was granted permission. It is submitted that thereafter also, due to his continuous sickness and also due to the disturbances in his family after the death of his brother, he could not report to duty immediately. The respondent No.4 after waiting for 21 days after sanction of leave and the petitioner continued to remain absent, declared the petitioner as a deserter with effect from 06.06.2006 by proceedings dated 04.07.2006. It is alleged that the desertion order was served on the petitioner only on 22.07.2006. Thereafter, enquiry proceedings were initiated after framing charges vide memorandum in C.No.13/A12/PR/2006, dated 12.10.2006 alleging that the petitioner had reported sick from 25.05.2006 to 05.06.2006 but did not report for duty from 06.06.2006 and completed 21 days of absence period by 26.06.2006 and consequently, he was declared as a deserter, but even thereafter he failed to report for duty. However, upon the petitioner reporting to duty on 19.02.208, he was taken into duty and was placed under suspension with effect from 01.03.2008. On the petitioner's 3 PMD,J W.P.No.35118 of 2016 request dated 10.03.2009 to take him back into duty, the SP, Khammam revoked the suspension order vide orders dated 18.03.2009 and the petitioner reported for duty on 28.03.2009. Thereafter, the disciplinary proceedings were concluded vide proceedings dated 22.11.2009 awarding punishment of removal from service since the unauthorized absence period is more than one year. The absence period from 06.06.2006 to 26.03.2008 was treated as 'leave without pay' and the suspension period from 11.03.2008 to 28.03.2009 was treated as 'not on duty'. Both the appeal as well as the revision filed by the petitioner were rejected, and challenging the order of removal and also the orders of appellate as well as the revisional authorities, this writ petition is filed.
3. It is alleged that an ex-party enquiry was conducted by the respondents into the allegations levelled against the petitioner and the enquiry officer has submitted a report holding the charges as proved. It is submitted that though the enquiry report was communicated to the petitioner, but due to his sickness and disturbances in family, he could 4 PMD,J W.P.No.35118 of 2016 not submit his further representation and that none of the authorities have considered the extenuate conditions which caused the delay in the submissions of the petitioner.
4. The learned counsel for the petitioner argued that no reasons were given either by the appellate authority or revision authority for rejecting of appeal/revision respectively and therefore, the order suffers from being non-speaking as well as being passed without application of mind. It is submitted that the petitioner has rendered 16 years of service and therefore, the punishment of removal from service for unauthorized absence initially for a period of 21 days i.e., from 06.06.2006 to 26.06.2006 and thereafter from 27.06.2006 to 28.03.2009, in spite of treating the said period as 'not on duty' and 'leave without pay' is highly excessive and therefore, the petitioner should be directed to be reinstated into service with all consequential benefits.
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5. Learned Standing counsel for the respondents has filed a counter affidavit stating that the petitioner has not given any reasonable cause for being absent from duty from 06.06.2006 to 26.03.2008 and in a disciplined force like that of the respondents, it cannot be tolerated. Therefore, the learned Standing counsel justified the punishment of removal.
6. Learned counsel for the petitioner however, submitted that the petitioner had subsequently reported for duty and petitioner was allowed to perform duty from 19.02.2008 to 01.03.2008 and thereafter, again he was placed under suspension on 27.03.2008 to 28.02.2009. It is submitted that once the petitioner has been allowed to work, the absence period from 28.03.2008 to 27.03.2009 cannot be treated as leave without pay. Therefore, he sought setting aside of the punishment order.
7. Having regard to the rival contentions and material on record and also the judgments relied upon by the 6 PMD,J W.P.No.35118 of 2016 learned counsel for the petitioner in the case of Prameela and Others Vs. APSRTC, Hyderabad and Others1 and in the case of M.Rajesham Vs. A.P.Transco and Others in Writ Petition No.3018 of 1999, this Court is of the opinion that unauthorized absence of the period as stated above cannot be treated as grave mis-conduct and hence the punishment of removal from service is shockingly excessive. The Hon'ble Supreme Court in the case of Krushnakant B.Parmer Vs. Union of India and Another in Civil Appeal No.2106 of 2012 has held that 'unauthorized absence' cannot be treated as a grave mis- conduct, warranting the punishment for removal from service.
8. Respectfully following the same, this Court deems it fit and proper to direct the respondents to reinstate the petitioner into services. However, the petitioner shall be eligible only for 20% of the back wages, and the absence period shall be taken into consideration as continuity of 1 2011 (3) ALD 641 7 PMD,J W.P.No.35118 of 2016 service for the purposes of terminal/retirement benefits only.
9. Accordingly, this writ petition is partly allowed. There shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Dated: 23.08.2022 bak 8 PMD,J W.P.No.35118 of 2016 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P.No. 35118 OF 2016 Dated: 23.08.2022 bak