Telangana High Court
Immadwar Srinivas, vs The Director General on 12 August, 2024
THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION No.4546 of 2021
ORDER:
In this Writ Petition, the petitioner is seeking a Writ of Mandamus declaring the order No.1/ITBP/SHQ(BBSR)/E-2/Disp(CT/GD Immadwar Srinivas)/2020-187-94, dated 09.08.2020, confirming the punishment order of removal from service as illegal, arbitrary and unconstitutional and consequently to set aside the same and to direct the respondents to re-instate the petitioner in ITBP Force with all consequential benefits and to pass such other order or orders.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was working as a Constable (GD) with the 3rd respondent. The petitioner had proceeded to his village on sanctioned leave of 30 days from 28.05.2019 to 26.06.2019. According to the 2 petitioner, his wife was in need of medical assistance and therefore, he has proceeded on leave and he was forced to over stay, due to ill- health of his wife and subsequently due to the ill- health of his father. The petitioner claims to have sought extension of 15 days of leave, but the petitioner was not intimated about non-granting of leave and the petitioner continued to take care of his father. It is submitted that the respondents in the meantime have passed the impugned order and have removed the petitioner from service. The appeal filed by the petitioner has also been rejected. Challenging the same, the present writ petition has been filed.
3. Learned counsel for the petitioner submitted that the absence of the petitioner from his duties/non reporting for duty after the lapse of sanctioned leave period was not wilful or deliberate, but was due to the reasons mentioned 3 in the writ affidavit i.e. initially due to the delivery of his wife and subsequently, due to the ill-health of his father. He relied upon the Judgment of the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and Another 1 for the proposition that where there is no wilful default on the part of the petitioner in attending to his duties, the punishment of removal/dismissal from service is highly excessive and should not be imposed.
4. Learned Standing counsel for the respondents, however, relied upon the averments made in the counter affidavit and submittesd that the petitioner has not shown any intention to join the service after lapse of 30 days of sanctioned leave or even after 15 days of leave, for which he sought extension, though it was rejected. He submitted that, at the request of the respondents, 1 (2012) 3 SCC 178 4 the duty officers of the local police station have personally visited the local residence of the petitioner and have informed his wife about the direction to report for duty, but the petitioner failed to do so. It is submitted that the respondents have therefore initiated disciplinary proceedings and the respondent organisation being a disciplined force, insubordination or negligence in performance of duty will not be tolerated and hence, when the petitioner failed to submit any explanation to the Show Cause Notice, the order of dismissal from service was necessarily imposed. It is submitted that the Appellate Authority however has also considered the contentions of the petitioner in his appeal, but has taken a decision to confirm the order of removal. He therefore sought dismissal of the writ petition.
5. Having regard to the rival contentions and the material on record, this Court finds that the 5 only reason for removal from service is unauthorized absence from duty. Admittedly, the petitioner has proceeded to his home town on sanction of 30 days leave and subsequently, has also sought for extension of leave for 15 days, which was rejected by the respondents. The reason given by the petitioner for his absence from duty, cannot be said to be totally without any basis. However, it has been pointed out by the learned Standing counsel that the petitioner has not submitted any documents or medical reports in support of his contentions about the ill-health of his father or his wife and that the petitioner has not given any reason for not communicating the same with his officers on duty.
6. However, taking a sympathetic view and following the decision of the Apex Court in the case of Krushnakant B. Parmar (cited supra), this Court is of the opinion that the punishment of 6 removal from service is too harsh for the allegations of unauthorized absence which is not wilful or deliberate. In view of the same, this Court deems it fit and proper to permit the petitioner to make a fresh representation along with the medical reports to the 3rd respondent, who shall reconsider the case of the petitioner and take a decision in accordance with law. In case the respondents are inclined to accept the explanation of the petitioner for his unauthorized absence, he may be reconsidered for resumption of duty subject to his physical fitness. Thereafter, the consequential benefits of the continuation of duty shall be considered by the respondents. The decision on the representation of the petitioner shall be taken by respondent No.3 within a period of three (03) months from the date of receipt of the representation of the petitioner.
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7. Accordingly, this writ petition is disposed of. There shall be no order as to costs.
Miscellaneous applications, if any pending, shall also stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date:12.08.2024 Note: Furnish C.C. by tomorrow.
TU