HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.16228 OF 2019
ORDER:
Heard the learned counsel for the petitioner and learned Government Pleader for Services.
2 This writ petition is filed to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the highhanded action of respondent No.4, in removing the petitioner from his duties without issuing prior notice and appointing respondent No.6, on petitioner's duties as illegal, arbitrary and against the principles of natural justice.
3. The case of the petitioner, in brief, is as follows:
a) The petitioner is resident of Narsinghbhatla Village of Nalgonda Mandal and District and completed M.A. English, B.Ed in the year 2006. The 2nd respondent issued notification for contract junior lecturer at Government Junior Colleges on BC-B Roaster category. The petitioner applied for the same.
b) The petitioner was appointed as contract Junior lecturer for English subject at Government Junior College at Mothukur, Nalgonda District and now presently Yadadri-Bhongir District under BC-B Roaster category. The College Development Committee made a agreement with the petitioner. 2
c) During the employment, on 13.10.2009, the petitioner suffered with heavy stomach pain and joined in the hospital for kidney operation and applied leave.
d) The petitioner went to the college on 02.11.2009, he found that the 6th respondent is attending to his post. On enquiry, the 5th respondent informed that the 4th respondent appointed the 6th respondent, and further without notice, the petitioner was removed from service.
e) On various representations, the 4th and 5th respondents did not look after the explanations of the petitioner. Hence, this writ petition.
4. The 1st to 5th respondents filed counter, in brief, is as follows:
a) The petitioner was absent from duties unauthorisedly from 13.10.2009 without intimation or any prior permission from the authorities concerned. The petitioner did not submit any leave application. On 02.11.2009, the petitioner approached the 5th respondent to admit him to duty, but the 5th respondent denied the same on the ground that the 4th respondent has dis-engaged his services due to his unauthorized absence.
b) On, 12.03.2019, after lapse of more than 10 years, the petitioner made a representation to the Member Secretary, Telangana State Commission for Backward Classes, Hyderabad 3 requesting to re-engage his services. The Member Secretary in his letter dated 12.03.2019, while enclosing the said representation has requested to furnish a detailed report. Upon receipt of the notice, the 4th respondent was directed to furnish a detailed report. Accordingly, the 5th respondent has submitted a report on 01.06.2019.
c) The report of the 5th respondent, in brief, is as follows:
i) the petitioner was absent to his duties un-authorisedly from 13.10.2009.
ii) no prior intimation was given by the petitioner about his illness nor his absence.
iii) the academic instructions of the college was disturbed due to his absence.
iv) due to the absence of the petitioner and also loss of academic instruction the 4th respondent herein has engaged another person viz Smt D.Manjula (6th respondent) as Contract Faculty in English in place of petitioner.
d) Engaging of contract faculty in Government Junior Colleges is purely a temporary measure on consolidated remuneration and does not confer any rights what so ever and their services can be terminated at any time without assigning any reason. The petitioner has approached the Court of law and filed this writ petition after lapse of more than 10 years of his termination/dis-engagement which is not justifiable by any stretch of logic. Therefore, the writ petition is liable to be dismissed.
5. PERUSED THE RECORD
6. DISCUSSION AND CONCLUSION 4
7. As borne on record vide various representations dated 09.11.2009, 10.11.2009, 21.01.2015, 13.03.2018 and 20.06.2019, of the petitioner addressed to the respondents herein the petitioner herein had represented that the petitioner is working as a Contract Junior Lecturer in Government Junior College, Mothkur since 2009 and thereafter, as the petitioner was attacked with Health issues, the petitioner was admitted in the Hospital for Kidney operation and therefore, the petitioner could not attend to his duties since 13.10.2009 to 31.10.2009 and in the meantime, the petitioner was removed from the service for his absence and when the petitioner reported to duty on 02.11.2009 the petitioner was shocked to know that the petitioner's was removed by respondent No.4 due to petitioner's absence and further the 4th respondent had even appointed the 6th respondent. No notice or opportunity was given to the petitioner prior to removing the petitioner from employment illegally and the petitioner requested the respondents through the said various representations to permit the petitioner to attend to his duty.
8. It is further case of the petitioner that the petitioner had five casual leaves to his credit and had 16 days leave and that the petitioner is absent only for 11 days, however, the same was not considered by the respondents and the petitioner was 5 removed from the post of Junior Contract Lecturer unilaterally, arbitrarily and therefore, the petitioner addressed various representations to the respondents to permit him to attend his duties.
9. However, the grievance of the petitioner is that no action has been initiated in pursuance to the petitioner's various representations addressed to the respondents and in spite of the agreement of the contract of service entered into by and between the 5th respondent College i.e., Government Junior College, Muthkur, Yadadri-Bhongir District dated 25.08.2009 and the petitioner herein and the same constrained the petitioner to file the present writ petition.
10. Para 3 of the counter affidavit reads as under:
"3. It is submitted that, on 12/03/2019 (i.e) after a lapse of more than 10 years the Petitioner herein has made a representation to the Member Secretary, Telangana State Commission for Backward Classes, Hyderabad requesting to re-engage his services. The Member Secretary in his Letter Dated: 12/03/2019, while enclosing the said representation has requested to furnish a detailed report. Upon receipt of the notice, the Regional Joint Director of Intermediate Education [4th respondent herein] was directed to furnish a detailed report. In turn the Regional Joint Director of Intermediate Education [4th respondent herein] has requested the Principal, Government Junior College, Mothkur, Yadadri Bhongir District [5th respondent herein] to submit a detailed report. Accordingly, the 5th respondent herein has submitted a report on 01/06/2019."6
11. This Court opines that even as per para 3 of the counter affidavit, the representation of the petitioner, dated 12.03.2019 had been received by the respondent authority, and a report is called for in the matter, and the 5th respondent had even submitted a report on 01.06.2019 but however, no orders have been passed till as on date.
12. It is a settled law that an employee cannot be removed from employment on the ground of un- authorized absence unless there is a clear finding that the absence is willful and unless a detailed enquiry is conducted into the matter, in accordance to principles of natural justice, giving reasonable opportunity to the petitioner to explain the reasons for his absence.
13. The Apex Court in a judgment reported in (2012) 3 SCC 178 in Krushnakath B. Parmar v. Union of India & Another1 - observed at Para 17, 18, 19, 20, 21 and 25 as follows :
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. 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 which an employee may abstain from duty, including compelling circumstances 1 (2012) 3 SCC 178 7 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.
18. 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.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
" 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 8 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.
25. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.
14. Admittedly, in the present case the petitioner has placed on record copy of agreement of contract for service dated 25.08.2009 which evidences the fact that the petitioner is a contract employee working in the respondent College from 25.08.2009. The petitioner ought to be put on notice prior to removing the petitioner though the contract stipulates that the College Development Committee can terminate the services of the petitioner at any time during the contract period. This Court opines that the representations of the petitioner should be considered in accordance to law and appropriate orders be passed in the interest of justice.
15. Taking into consideration all the above referred facts and circumstances and the law laid down by the Apex Court referred to and discussed above, the Writ Petition is disposed of directing the respondents to consider the representations of the 9 petitioner dated 30.10.2018, 09.11.2009, 10.11.2009, 21.01.2015, 13.03.2018, 12.03.2019 and 20.06.2019, in accordance to law and pass appropriate orders, within the period of three (03) weeks from the date of receipt of the copy of this order, duly communicating the said decision to the petitioner. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
_____________________________ MRS JUSTICE SUREPALLI NANDA 01.12.2022 VSU/KGK