THE HON'BLE SRI JUSTICE K.SARATH
WRIT PETITION No.16113 of 2020
ORDER:
This Writ petition is filed under Article 226 of Constitution of India seeking the following relief:
"....to issue a writ, order or direction, more in nature of Writ Mandamus (a) declaring the action of the respondents, more particularly, the action of the 1st respondent in issuing the impugned Proc.No.1165/SERP/HR.II/Addl.DRDO /Vkbd/2020 dated 27.08.2020 (served on the petitioner on 01.09.2020) wherein alleging certain alleged allegations that he was absconded to duties without prior permission for a period 45 days is erroneous, contrary to record and contrary to the factual position for that imposing a major punishment of removal from service even without complying the principles of natural justice, without enquiry is highly, illegal, illegal, arbitrary, unjust, improper, colorable exercise of power, vindictive attitude, stigmatic in nature and violative of Article 14,16 and 311 of Constitution of India and set-aside or quash the same, and
(b) consequently direct the respondents to reinduct the services of the petitioner forthwith as Additional D.R.D.O, D.R.D.A, Vikarabad with all consequential benefits...."2
SK,J W.P.No.16113 of 2020
2. Heard Sri S. Sathyanaraya Rao, Learned Counsel appearing for the petitioner and Sri Rupender Mahendra, Learned Counsel appearing for respondent No.1
3. The Learned Counsel for the petitioner submits that the petitioner was initially appointed as District Project Manager in Society for Elimination of Rural Poverty (SERP) on 23.10.2003. Subsequently basing on his work experience and qualifications he was posted as Area Coordinator during the year 2005 and further promoted as Project Manager during the year 2010 and posted as Additional District Rural Development Officer during the year 2018 and posted at Vikarabad District till serving of impugned order of removal from service dated 27.08.2020. 3
SK,J W.P.No.16113 of 2020
4. The learned Counsel for the petitioner submits that the family members of the petitioner are residing at Guntur for study purpose, as such on the evening of 21.03.2020 after completing his duty the petitioner went to Guntur by sending a message to his immediate superior i.e. respondent No.4. On the subsequent day i.e. on 22.03.2023 Janatha Curfew was observed due to Covid-19. Thereafter the Government of India declared complete lock down for 21 days due to Carona pandemic, as such no transportation facilities were available. On 26.03.2020 the petitioner requested the respondent No.4 through whatsApp to allow him to work from home, but the respondent No.4 replied that the petitioner is not an I.T employee to be permitted to work from home. As there was no alternative the petitioner requested the respondent No.4 for grant of leave to that extent and also 4 SK,J W.P.No.16113 of 2020 submitted a letter on 26.03.2020 through whatsApp requesting the respondent No.4 to exempt him from attending office physically due to Carona pandemic as well as lock down conditions. Due to domestic reasons the petitioner requested leave up to 29.05.2020 and finally the petitioner attended the office on 30.05.2020 and worked continuously up to 01.09.2020. However, without conducting any enquiry or without issuing any notice respondents served on him 01.09.2020 removing from service.
5. The Learned Counsel for the petitioner submits that as per the Terms and Conditions for Control and Appeal of SERP employees, there is a procedure contemplated under Terms and Condition No.8.5 i.e. procedure for imposing penalties. Therefore for imposing major penalty prior enquiry is required and 5 SK,J W.P.No.16113 of 2020 the respondents have to conduct a detailed enquiry before imposing the penalty of removal.
6. The Learned Counsel for the petitioner further submitted that in the instant case the respondents imposed major penalty of removal from service without holding enquiry and without following procedure prescribed under its regulations and the same is against the principles of natural justice.
7. The Learned Counsel further submitted that the Hon'ble Apex Court categorically held that even in the case of terminating services of temporary employee without conducting regular enquiry is bad in law and requested to set-aside the impugned termination orders.
8. The learned Counsel for the petitioner in support of his contention relied on the following judgments: 6
SK,J W.P.No.16113 of 2020 (1) A.P.Ahuja Vs. State of Punjab and others1 (2) Jawanth Singh Prathap Singh Jadega Vs. Rajita Municipal Corporation and another2
9. Sri Rupendra Mahendra, Learned Counsel appearing for respondent No.1. Basing on the counter submitted that the petitioner had absented from duty without prior permission from the higher authorities and the action was initiated against the petitioner and the petitioner was removed from service in pursuance of the Terms and conditions of SERP, HR Policy, 2009. The petitioner had willfully left the headquarters without prior permission on 21.3.2020 and he was unauthorizedly absent from duties for more than 68 days.
1. AIR 2000 SC 1080
2. 2009(1) SCC 49 7 SK,J W.P.No.16113 of 2020
10. The Learned Counsel for the respondent No.1. further submits that as per the letters of the petitioner dated 26.3.2020, 13.4.2020 and 17.6.2020 shows that the same were written from Vikarabad and he had stated that he may be permitted to work from home by showing his station at Viakrabad, which clearly goes to show that the petitioner mislead the office and requested for permission to work from home. In the writ affidavit, the petitioner stated that he was struck up in Guntur and could not attend to his duty due to lack of transportation and also declaration of lockdown which is totally incorrect. The unauthorized absence of the petitioner had hampered paddy procurement, SHC, Bank Linkage in particular and did not maintain the decorum of the office. As per terms and conditions of SERP, HR Policy (condition No.6.6), if a person, who abstains himself from duty without 8 SK,J W.P.No.16113 of 2020 prior permission from higher authorities for more than 45 days, no notice as such is required and in view of the same there are no merits in the writ petition and requested to dismiss the petition.
11. After hearing both sides, and after perusing the record, this Court is of the considered view that the petitioner was worked in SERP from 2003 onwards in various capacities and he was absent from duty from 21.03.2020 to 29.05.2020 during the Covid Pandemic period. The petitioner submitted leave letters on various grounds and the respondent authorities have rejected the same. Further, the request of the petitioner to work from home was also rejected and was directed his physical presence, but the petitioner failed to attend the office physically up to 30.05.2020. Admittedly, the respondent authorities, without 9 SK,J W.P.No.16113 of 2020 conducting any enquiry, or without issuing any notice to the petitioner passed impugned orders on 27.08.2020 and served on the petitioner on 01.09.2020. In the impugned Order it is mentioned that the petitioner being a responsible District Officer has violated the terms and Conditions of SERP, 2009 HR policy.
12. The condition No.6.6 of SERP, reads follows:
- Any employee who remains absent from duty for more than 12 months, shall automatically cease to be employee of The SERP. In all such cases a separate notice of the emploeye is not specifically required. However, this regulation does not preclude the competent authority to take disciplinary action against the employee if he is absent from duty without leave as per Terms and Conidtions for Control and Appeal of SEP Employees.10
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13. As per the Terms and Condition of 6.6 of SERP, if any employee who remains absent from duty for more than for 12 months, shall automatically cease to be employee of SERP and in all such cases a separate notice to the employee is not specifically required. In the instant case the petitioner was absent from duty only for 68 days.
14. The Terms and Condition No.8.5 of SERP clearly shows that for imposing major penalties procedure prescribed. Admittedly, in the instant case, the respondent authorities without following the terms and conditions of SERP, imposed major penalty of removal of service and the judgments relied on by the the learnd Counsel for the petitioner squarely apply to the present case.
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SK,J W.P.No.16113 of 2020
15. In view of the same, the impinged order passed by the respondent No.1 in Proc.No.1165/SERP/ HR.II/ Addl.DRDO/ Vkbd/2020 dated 27.08.2020 is liable be set aside and accordingly set aside. However, it is left open to the respondents to follow the procedure for imposing appropriate punishment for his absence duty from 21.03.2020 to 29.05.2020 in accordance with law.
16. Accordingly, with the above direction this writ petition is allowed.
17. Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ JUSTICE K.SARATH Date: 08.02.2023 trr