Telangana High Court
M. Jayasri, Khammam vs Principal District And Session Judge, ... on 12 August, 2024
* THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR
RAO
+WRIT PETITION No.31787 OF 2014
% 12-08-2024
# Smt. M. Jayasri
....Petitioner
Vs.
The Principal District & Sessions Judge, Khammam and others.
.... Respondents
!Counsel for the Petitioner : Sri W.B. Srinivas, learned Senior
Counsel, representing Ms. K.
Kavya Sree Lalitha, learned
counsel for the petitioner
Counsel for respondents : Sri Bathula Raj Kiran, learned
Standing Counsel appearing for
respondent Nos.1 and 2
<Gist :
>Head Note:
? Cases referred:
1. (2009) 13 SCC 600
2. (1984) 3 SCC 316
3. (1984) 1 SCC 1
4. (1985) 2 SCC 35
5. AIR 1991 SC 2010
6. (2013)10 SCC 324
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT PETITION No.31787 OF 2014
Between:
Smt. M. Jayasri
....Petitioner
Vs.
The Principal District & Sessions Judge, Khammam and others.
.... Respondents
ORDER PRONOUNCED ON: 12.08.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.31787 of 2014
ORDER (per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
The present Writ petition is filed for the following relief:
".......Issue a writ, order or direction and more particularly one in the nature of Writ of Mandamus declaring 1st respondent's Proc. Order C.Dis.No.62/ADM/DCK, dated 11.08.2014 as illegal, arbitrary, contrary to evidence on record, unjust, null and void and consequently set aside the same with all consequential benefits and pass....".
2. Heard Sri W.B. Srinivas, learned Senior Counsel, representing Ms. K. Kavya Sree Lalitha, learned counsel for the petitioner, Sri Bathula Raj Kiran, learned Standing Counsel appearing for respondent Nos.1 and 2.
3. Learned counsel for the petitioner submits that the petitioner's marriage was performed with Sri MVPN Balaji on 29.04.1998 at Veerabhadra Swami Temple, Kuravi village, Warangal District and the same was an arranged marriage. Prior to the marriage of petitioner with Sri MVPN Balaji, he married one Janaki, but the said marriage was dissolved by the Court of Senior Civil Judge, Khammam, in O.P.No.39 of 1997, dated 14.11.1997. The petitioner, after her marriage, started living with her husband MVPN Balaji and settled in Khammam. While so, the petitioner's 4 husband was transferred to Madira. While working there, the petitioner's husband was murdered by the extremists on the intervening night of 24/25.01.1999. Later, the petitioner submitted an application to the 1st respondent for issuance of a service certificate, payment of ex-gratia amount, and to provide employment to the petitioner on compassionate grounds. Pursuant to the said application, the 1st respondent appointed Sri P. Gureppa, Junior Civil Judge, Madhira, to enquire into the matter with regard to genuineness of petitioner's marriage with the deceased Balaji.
4. Learned counsel for the petitioner further submits that after completion of the enquiry, the Enquiry Officer, Junior Civil Judge, Madhira, submitted a detailed enquiry report on 28.10.1999. During the enquiry, the Enquiry Officer examined the petitioner, her parents, respondent No.3 and the deceased's father, and respondent No.3 filed written arguments denying all the exhibits filed by the petitioner. A finding in the said enquiry report is:
"It clearly made out that those are marriage photos between Balaji and Janaki and the documents Ex.P1 to P3, P5, P7 to P13 show that marriage was performed between the petitioner herein and the deceased Balaji."
A perusal of the enquiry report further reveals that, after examining respondent No.3 and her husband, the Enquiry Officer 5 observed that Balaji resided separately at Khammam after marriage with his first wife, Janaki, and after divorce also, the deceased Balaji resided separately and attended his duties. The Enquiry Officer also held that the contents of Ex.P5 filed therein (Ex.P7) are relevant. The deceased Balaji categorically stated that he married the present petitioner, Jayasree. Finally, the Enquiry Officer held that the marriage between the petitioner, Smt. Jayasree and Sri Balaji is genuine.
5. Learned counsel for the petitioner further submits that after declaring the genuineness of the marriage of the petitioner, the 1st respondent issued proceedings in Dis.No.6948/PR No.68/99/ADM/DCK, dated 21.12.1999 appointing the petitioner as Process Server on compassionate ground and posted her at Munsif Magistrate's Court at Madhira. As such, the petitioner joined the duty. While she was working as Process Server in Madhira, the 3rd respondent lodged a complaint against the petitioner to the 1st respondent stating that the petitioner is not a legally wedded wife of her son, Balaji and that her son Balaji has not married for the second time after divorcing his first wife, Janaki. Subsequently, while the complaint was pending, the 3rd respondent filed a suit in O.S.No.1108 of 1999 on the file of Principal Junior Civil Judge Court at Khammam, for a declaration that she is the sole heir of the deceased Sri Balaji and for a 6 consequential injunction. The said suit was decreed holding that the plaintiff is entitled for declaration as sole surviving legal heir of the deceased Balaji and also for relief of injunction as prayed by her. It is the contention of the petitioner that her advocate withdrew without informing her and she could not engage another advocate, resulting in ex-parte judgment in the above suit. As such, she filed an application to get the suit re-opened, but failed. After that, she filed revision and CMA No.385 of 2012. This Court allowed the C.M.A. on 04.12.2023 by setting aside the Order dt.15.12.2011 in I.A.No.2225 of 2011 in I.A.No.2258 of 2009 in A.S.S.R. No.7716 of 2009 on the file of the learned I Additional District Judge at Khammam and thereby the petition vide I.A. No.2225 of 2011 in I.A.No.2258 of 2009 in A.S.S.R. No.7716 of 2009 is allowed. Accordingly, I.A.No.2258 of 2009 in A.S.S.R. No.7716 of 2009 shall be restored to its original number. The learned trial Court Judge shall dispose of I.A. No.2258 of 2009 in A.S.S.R. No.7716 of 2009 as expeditiously as possible preferably within one (01) month from the date of receipt of copy of this order. The said A.S.S.R. No.7716 of 2009 is pending as on today.
6. Learned counsel for the petitioner further submits that based on the ex-parte judgment and decree dated 06.05.2005 passed in O.S.No.1108 of 1999, and the complaint of the respondent No.3, dated 30.10.2006, the Disciplinary Authority-cum-Principal 7 District & Sessions Judge/respondent No.1 has issued a show- cause notice to the petitioner as to why she should not be terminated from the service. Subsequently, the Enquiry Officer- cum-Senior Civil Judge, Khammam, was appointed to conduct the enquiry. The operative portion of the enquiry report is as follows:
"I am of the opinion that the complainant has established that in view of the decree dt.06.05.2005 passed by Civil Court in O.S. No.1108 of 1999 declaring PW.1 as the sole surviving legal heir of the deceased employee and that the charged employee is not the legally wedded wife of deceased Balaji, the acts of charged employee in submitting representations while getting appointment as Attender in Judicial Department, Khammam District, on compassionate grounds, amount to mischief and misconduct within the meaning of Rule 3 of the A.P. Civil Services (Conduct) Rules, 1964, and the charged employee is, therefore, liable for departmental action. Accordingly, I hold on the point that the article of charge framed against the charged employee is proved and the charged employee is, therefore, liable for departmental action as per C.C.A. Rules."
On the report of the above said Enquiry Officer, the respondent No.1 District Judge, Khammam, issued a final show cause notice in Proc. Order Dis.No.1201/ADM/DCK, informing the petitioner as to why she should not be terminated from services as per the Enquiry Report of the Enquiry Officer. The Article of charge proved by the Enquiry Officer is as follows:
Article of charge:
"That the Principal Junior Civil Judge, Khammam, has passed a judgment and Decree in O.S.No.1108 of 1999 on 06.05.2005 declaring that; you, Smt. M. Jayasri is not the legally wedded wife of the 8 deceased employee, M.V.P.N. Balaji. In view of death of the deceased employee, formerly Process Server in Junior Civil Judge's Court, Madhira, who died in harness, you have been appointed as attender on compassionate grounds. Therefore, your acts amounts to misconduct and mischief and hence, you are liable for Departmental action."
It further said as follows:
"In view of the above said reasons and circumstances, while enclosing the copy of the Enquiry Officer's report herewith, Smt. M. Jayasri, Process Server, Prl. Senior Civil Judge's Court, Kothagudem, is called upon to show cause within (15) days from the date of receipt of this notice, as to why she should not be terminated from services, failing which, the matter will be proceeded in accordance with CCA Rules."
Against the said final show-cause notice, the petitioner has given her explanation through proper channel as under:
"Decree did not direct your honour (District Court, Khammam) to implement the direction by the same time there are no such directions in the decree, as such, in absence of any directions though the (PW-1) decree-holder had a right to execute the decree instead of that, approaching your honour (District Court, Khammam), requesting to implement the directions of the decree though there no such directions is against the execution proceedings. It is submitted that as there are no such directions, the PW.1 (decree-holder) approached the Hon'ble District Court, Khamma, for implementation of decree and the action of the Hon'ble District Court in initiation of the enquiry proceedings are against the principles of natural justice and equity and C.P.C. (execution proceedings) thereby the Hon'ble District Court chosen to misuse its power. It is submitted that in such a case, there is every possibility to approach the District Court for recovery of money decrees passed against the judicial employees by way of representation by decree-holders."9
Accordingly, she requested the concerned authorities to take into account her length of service, i.e. from 1989 and to drop further proceedings in the interest of justice and equity.
7. Learned counsel for the petitioner further submits that the first respondent, being not satisfied with the explanation submitted by the petitioner, has passed the impugned proceedings Order C.DIS.No.62/ADM/DCK/Dt.11.08.2014 by observing as follows:
"In these circumstances, the contentions of the delinquent employee in the Written Statement will not hold the waters, more in particular, as referred by supra, even before issuing the Orders of appointment to delinquent, a Civil Suit is already filed and the District Judge, Khammam, who is figured as defendant No.3 has received the summons. Thus, even before giving the appointment orders, summons are also received by the District Court. The enquiry conducted by Junior Civil Judge, Madhira, will not give any right to the delinquent employee, because by that time, the mother of the deceased had no knowledge about application of delinquent. Further, no notice was issued to the mother of the deceased during the course of that enquiry by the learned Junior Civil Judge, Madhira, or, by the District Judge, Khammam, at that stage. It is not a fact finding enquiry; and that Enquiry will not give any legal status to the delinquent, more in particular, when there is a decree passed by the competent Civil Court. In these circumstances, certainly, the appointment orders, if any, issued are all subject to the result of Civil Suit, though, it is not specifically mentioned in the Appointment Order. In my humble opinion, there is no need of mentioning those aspects. Because, the delinquent employee is also one of the parties to the suit as defendant No.1, the District Judge, Khammam, is defendant No.3. So also, the contentions raised in the Written Statement will not hold any water. So, the fact remains, the act of mischief and misconduct on the part of Delinquent is 10 very much established and proved, in securing the job, on compassionate grounds. When the appointment of delinquent itself is not legal, certainly, she is not entitled to continue in the Service. It is nothing but depriving the rights of genuine legal heir and it in a way giving a helping hand to the delinquent to claim the death benefits of Mr.M.V.P.N.Balaji, depriving the genuine legal heirs. Thus, considering the facts and circumstances of the case, the delinquent is not entitled to continue in service. Hence, she is terminated from the service forthwith. Since the delinquent worked for a considerable period, I am not interested to order recovery of the salary and other benefits received by her during the period of her service. The other departmental enquiries any pending against the delinquent will be considered, on their own basis."
8. Questioning the same, the present Writ Petition is filed.
9. On 14.06.2022, learned counsel for respondent No.3 submitted that during pendency of the Writ Petition, the respondent No.3 died and family members have no interest to contest this matter.
10. The first respondent filed counter. Learned counsel for respondent No.1 brought to the notice of this Court that the suit in O.S.No.1108 of 1999 on the file of the Principal Junior Civil Judge, Madhira, was decreed ex-parte on 06.05.2005 with an observation as mentioned in para 9 of the petition and extract of the same is as under:
"....Plaintiff denies the marriage of her son Balaji with the first defendant. In this back drop the burden lies on first defendant Jayasri to prove her marriage with the deceased Balaji. Not a single piece of evidence is adduced to prove the marriage of first defendant with 11 deceased Balaji. There is no material on record to believe the first defendant Jayasri is legally wedded wife of Balaji, photographs and marriage certificate is necessary to prove the marriage of D.1. But, they were not filed...
I answer this issue in favour of the plaintiff."
11. Learned counsel for the respondent No.1 further contended that charges were also proved, and based on the enquiry report, the first respondent rightly passed the proceedings Order C.DIS.No.62/ADM/DCK dated 11.08.2014 and there is no illegality in the termination order. There are no merits in the contentions of the petitioner. All the procedural aspects have been complied with and cogent reasons support the order. As such, the Writ Petition is not maintainable and prayed to dismiss the same in the interest of justice.
12. Learned counsel for the petitioner submitted that when the application was made by the petitioner for compassionate appointment, forthwith enquiry was conducted by Junior Civil Judge, Madhira, about the genuineness of the marriage of the petitioner. The Enquiry Officer also held that the contents of Ex.P5, application dated 03.08.1998 submitted by late M.V.P.N. Balaji revealed that he divorced his first wife Janaki and requested to delete her name in the Service Register and subsequently, add the name of M. Jayasri. Upon receiving the same, on 31.08.1998, the Munsiff Magistrate, Madhira, endorsed as under: 12
"The individual is directed to submit at the time of whenever required."
13. Learned counsel for the petitioner further submitted that in the judgment and decree in O.S.No.1108 of 1999 dated 06.05.2005, nothing was mentioned with regard to appointment of the petitioner or legal heirs. The subject matter of said suit was only for declaration of respondent No.3 as sole surviving legal heir and no relief was sought for the declaration of the petitioner's marriage with the deceased Balaji as void, nor was any relief sought with regard to the status of the petitioner with the deceased Balaji. Therefore, the findings of the 1st respondent that the Civil Court held that the petitioner is not a legally wedded wife is incorrect and contrary to the evidence placed on record. The 1st respondent erroneously observed that even before giving the appointment order, the summons was received, and a suit was already filed. Since the petitioner made an application prior to the suit itself, the District Judge called for a report from the Junior Civil Judge, Madhira, regarding the genuineness of the marriage and for consideration of the petitioner on compassionate grounds.
14. Learned counsel for the petitioner further submitted that the Junior Civil Judge, Madhira, submitted a report on 28.10.1999 wherein all the parties were examined, including the petitioner and her parents, respondent No.3 and her husband. The same was 13 submitted prior to the filing of the said suit and the appointment order was given to the petitioner on 21.12.1999, prior to the receipt of summons in the suit. The legal heir certificate was obtained on 10.08.1999. Since the suit was filed on 14.12.1999, the question of receiving a summons prior to the appointment order, does not arise. Hence, this finding is also incorrect and baseless.
15. Learned counsel for the petitioner further contended that the Disciplinary authority's finding that no notice was issued to the respondent No.3 is totally incorrect since the fact remains that the respondent No.3 has participated in the enquiry caused by the Junior Civil Judge, which is evident from the report. Based on these findings, even without discussing the material document submitted by the petitioner and without even looking into the enquiry report dated 28.10.1999 wherein all the materials were placed, the impugned proceedings dated 11.08.2014 was issued. Hence, the same is wholly unsustainable for non-consideration of material on record and has been mechanically issued. Accordingly, prayed to set aside the proceeding dated 11.08.2014 and allow the Writ Petition.
16. This Court, having considered the rival submissions made by the learned counsel for the respective parties, is of the considered view, that as rightly contended by the learned Senior Counsel 14 appearing for the petitioner, the subject matter of O.S.No.1108 of 1999 was only for declaration of respondent No.3 as the sole surviving legal heir and for consequential injunction, which was decreed. The decree is certainly not a directive to the respondent authorities to interfere with the petitioner's compassionate employment, which was granted by following the due process and pursuant to the conduct of a detailed enquiry. There is no direction in the decree with regard to the implementation of the order of the Court, and there is no direction at all to the authorities concerned.
17. Surprisingly, based on the said judgment and decree in O.S.No.1108 of 1999, the Disciplinary authority has taken action against the petitioner even though a preliminary inquiry was conducted regarding the genuineness of the petitioner's marriage with the deceased Balaji. The preliminary inquiry sufficiently proved the genuineness of the petitioner's case. Thereafter, the respondent authorities appointed the petitioner on compassionate ground only based on the enquiry report. However, merely based on the judgment and decree in O.S. No.1108 of 1999, the Disciplinary authorities have taken a "U-Turn" and consequentially, issued the impugned Proceedings dated 11.08.2014.
15
18. The Hon'ble Supreme Court in State of Chhattisgarh and others Vs. Dhirjo Kumar Sengar 1, elaborately discussed on a similar issue, wherein it was held as under:
Para No.22:
"A succession certificate can be granted in favour of any person. It may be granted to an heir or a nominee. By reason of grant of such certificate, a person in whose favour succession certificate is granted becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representatives. He does not derive any right thereunder. The succession certificate merely enabled him to collect the dues of the deceased. No status was conferred on him thereby. It did not prove any relationship between the deceased and the applicant. Even otherwise, the respondent and his father were entitled to the said dues being his heirs and legal representatives."
The above judgment clearly emphasizes that the mere issue of a succession certificate does not confer any right or status to the applicant of such certificate, and neither does it prove any relationship between the applicant and the deceased.
19. In the present case, the suit was filed by the 3rd respondent for declaration of legal heir and for consequential injunction. To such extent, the suit was decreed and the 3rd respondent was declared as the legal heir of the deceased. Merely because of the declaration of the 3rd respondent as the legal heir, the same does not confer any right thereunder, as held in the judgment of the 1 (2009) 13 SCC 600 16 Hon'ble Apex Court cited above. The grant of a legal heir certificate to the 3rd respondent does not disentitle the petitioner from her rightful claim for compassionate appointment. No status was conferred on the 3rd respondent, and it did not prove any relationship between the deceased and the 3rd respondent.
20. It is also pertinent to observe that the petitioner was appointed on compassionate grounds on 21.12.1999. Consequently, after a lapse of several years, the 3rd respondent made a complaint. Knowing the facts, the 3rd respondent filed a suit to declare her as a legal heir of the deceased Balaji, which was decreed. Based on the said decree, the respondent authorities arrived at an erroneous assumption that the petitioner was not the legally wedded wife of the deceased Balaji, which was not even the subject matter of the decree. Moreover, such a relief was not sought for by the 3rd respondent in her suit. Despite the same, the respondent authorities arbitrarily terminated the petitioner from service. When the petitioner applied for compassionate appointment, an enquiry was conducted forthwith about the genuineness of the petitioner's case by the Junior Civil Judge, Madhira. The Enquiry Officer also held that the contents of Ex.P5, the application dated 03.08.1998 given by late M.V.P.N. Balaji reveal that he divorced his first wife Janaki and requested to delete her name in the Service Register and add the name of M.Jayasri, 17 and the same was endorsed by the Munsiff Magistrate, Madhira on 31.08.1998. This itself is enough to believe that the petitioner is the 2nd wife of the deceased Balaji, and that the petitioner has a genuine case.
21. It is also pertinent to mention that the petitioner, at the time of her appointment on compassionate grounds, produced the marriage declaration certificate from the concerned temple, apart from the marriage photographs. The genuineness of the marriage was the subject matter of a detailed enquiry, and the petitioner was appointed on compassionate grounds only based on the enquiry report. The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the breadwinner which has left the family in penury and without any means of livelihood. Hence, the petitioner cannot be deprived of her employment on compassionate grounds, when she has proved her case beyond all reasonable doubts. Therefore, the impugned proceedings dated 11.08.2014 is liable to be set-aside. The matter may be viewed from another angle. The Article of Charge against the petitioner reads thus:
"That the Principal Junior Civil Judge, Khammam has passed a Judgment and Decree in O.S.No.1108 of 1999 on 05.06.2005 18 declaring that; you Smt.M.Jayasri is not the legally wedded wife of the deceased employee M.V.P.N.Balaji. In view of death of the deceased, formerly Process Server in Junior Civil Judge's Court, Madhira, who died in harness, you have been appointed as attender on Compassionate Grounds. Therefore, your acts amounts to mis-conduct and mischief and hence, you are liable for Departmental action."
(Emphasis Supplied)
22. At the first place, the Charge framed is that in O.S.No.1108 of 1999, the Court 'declared' that petitioner is not the legally wedded wife of the deceased employee. In our view, the Court neither gave any such declaration nor it was within the province of the Court to confer any such status, while deciding the application under Section 372 of the Indian Succession Act, 1925. Secondly, an employee can be subjected to disciplinary proceeding, provided he has committed any mis-conduct. When petitioner preferred her application for compassionate appointment, the Department conducted enquiry, verified genuineness of the documents and after having satisfied about factum of marriage, appointed the petitioner. It is not the case of the disciplinary authority that petitioner procured employment by producing fabricated documents. Indeed, the finding of the preliminary enquiry on the strength of which, the petitioner was held to be married wife of the deceased shows that marriage was held to be genuine and proved. 19 Thus, very foundation on the strength of which edifice of Article of Charge aforesaid is framed collapses and cannot sustain judicial scrutiny. Apart from this, it is trite that 'misconduct' must be defined with accuracy and precision. It is profitable to consider the legal journey in this regard.
23. In A.L.Kaira v. Project & Equipment Corpn 2, the Hon'ble Supreme Court held as under:
"22. ...What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct..."
24. In Glaxo Laboratories (1) Ltd v. Presiding Officer, Labour Court, Meerut 3, it was held that everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short, it cannot be left to the vagaries of management to say ex post facto that some 2 (1984) 3 SCC 316 3 (1984)1 SCC 1 20 acts of omission or commission nowhere found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty.
25. In Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corpn. 4, the Hon'ble Supreme Court held as under:
"4. ...This proposition appears to us to starting because even though either under the Certified Standing Orders or Service regulations; it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfalls he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. The legal proposition as stated by the High Court would have necessitated in-depthexamination, but for a recent decision of this Court in Glaxo Laboratories v. Presiding Officer, Labour Court, Meerut [(1984) 1 SCC 1] in which this Court specifically repelled an identical contention advanced by Mr Shanti Bhushan, learned Counsel who appeared for the employer in that case observing as under:4
(1985)2 SCC 35 21 "...But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the workman to a penalty".
26. In the said judgment, it is also held as under:
"4.... It is thus well-settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconducts."
27. Common thread of principle flowing from these judgments is that a particular conduct must be prescribed as a 'mis-conduct'. The employer on his whims cannot treat any conduct as a 'mis- conduct'. In the departmental enquiry, it was neither the charge against the petitioner that she procured employment by fraud or fabrication of documents, nor any finding was given by learned Enquiry Officer that previous report of Senior Civil Judge giving stamp of approval to the genuineness of marriage is faulty. Thus, in our opinion, the Article of Charge so framed does not constitute 'mis-conduct'.
22
28. We wonder that in a matter of this nature, which deals with employee of a Court, the disciplinary authority a judicial officer has mechanically framed the Article of Charge which does not find support from judgment and decree in O.S.No.1108 of 1999. Lastly, it is worth remembering that the petitioner was appointed on 21.12.1999 and after considerable long time, the judgment and decree aforesaid was passed. Thus, there is neither misrepresentation on the part of the petitioner nor she committed any misconduct. For this reason also, she is entitled to get full back wages. The petitioner was all along willing to perform her duties, but, was deprived to do so for the reasons solely attributable to the Department. Thus, as per principle laid down in Union of India v. K.Janaki Raman 5, and in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya 6, wherein it was held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule, the petitioner deserves full back wages.
29. Accordingly, the Writ Petition is allowed by setting aside the proceedings of the 1st respondent in C.Dis.No.62/ADM/DCK, dated 11.08.2014 and the respondents are directed to re-instate the petitioner into service and pay all the back wages from the date of 5 AIR 1991 SC 2010 6 (2013)10 SCC 324 23 removal of the petitioner till the date of reinstatement, in accordance with law. No costs.
Interlocutory applications, if any pending, shall also stand closed.
_____________ Sujoy Paul, J _______________________________ Namavarapu Rajeshwar Rao, J Date: 12.08.2024 Bdr.