Telangana High Court
P. Satyanarayana vs The Principal Secretary on 20 August, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).NO. 2113 of 2017
ORDER:
In this writ petition, the petitioner is challenging the impugned proceedings dated 07.12.2013 passed by the respondent No.3 in removing the petitioner from service as Office Subordinate at District Insurance Office, Medak at Sangareddy, as illegal, arbitrary and prayed for setting aside of the same and consequently to direct the respondents to continue the petitioner to discharge his duties as Office Subordinate and pay the salary with effect from 10.07.2012 and also to treat the absence period on medical leave and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as an Office Subordinate under the control of respondent No.3 in the year 1991. Since the date of his appointment, the petitioner was discharging his duties as Office Subordinate and it is claimed that he fell ill and was admitted to the hospital in the year 2008 and therefore, he had applied for medical leave with effect from 22.12.2008. Since the petitioner was not able to recover from 2 TMD,J W.P(Tr).No. 2113 of 2017 his illness, he was extending the leave from time to time on medical grounds and after recovery from illness, he submitted his joining report on 30.06.2011 requesting the respondent No.3 to permit him to join duty. The petitioner claims to have submitted all the relevant medical certificates along with the said joining report. However, the respondent No.3 did not permit the petitioner to join his duty and subsequently, on submitting further joining report, the respondent No.3 permitted the petitioner to join duty with effect from 10.07.2012. The petitioner claims that the respondent No.3, however, failed to pay any salary for the said working period and instead, a show cause notice dated 25.05.2012 was issued by the respondent No.3 calling for his explanation as to why his services should not be terminated in terms of G.O.Ms.No.128, Finance (FR-I) Department, dated 01.06.2007. When there was no response from the petitioner, the respondent No.3 issued a Charge Memo No.05/Admn/DIO-Medak/2012-13, dated 11.02.2013, was issued for unauthorized absence from duty with effect from 22.12.2008 to 09.07.2012. The petitioner has submitted his explanation on 16.02.2013 denying the charges and requesting to drop all further proceedings and also to pay the salary for the period for which he discharged his duties after joining the duty 3 TMD,J W.P(Tr).No. 2113 of 2017 with effect from 10.07.2012. It is submitted that the respondent No.3 did not consider the same, but appointed an Enquiry Officer to conduct enquiry against the charge of unauthorized absence to duty with effect from 22.12.2008 to 09.07.2012 and the petitioner claims to have submitted his explanation along with the relevant documents i.e., including the relevant medical evidence for his unauthorized absence from 22.12.2008. It is claimed that the Enquiry Officer without conducting proper enquiry, submitted his report holding the charges against the petitioner as proved and upon receipt of the enquiry report, the respondent No.3 issued a show cause notice proposing the punishment of removal from service and required the petitioner to submit his explanation against the said proposed major punishment. The petitioner submitted his explanation and requested the respondent No.3 to take a lenient view and continue him as Office Subordinate. However, the respondent No.3 issued the impugned order removing the petitioner from service. Aggrieved thereby, the petitioner filed O.A.No.3077 of 2014 before the Andhra Pradesh Administrative Tribunal and no interim order was passed in the same. Subsequently, on abolition of the Tribunal, the case has been transferred to the 4 TMD,J W.P(Tr).No. 2113 of 2017 High Court and re-numbered as W.P(Tr).No.2113 of 2017, i.e., the present Writ Petition.
3. Learned counsel for the petitioner submitted that the respondent No.3 himself accepted the joining report of the petitioner and permitted him to join duty with effect from 10.07.2012 after availing of medical leave by the petitioner and therefore, he could not have initiated the departmental proceedings against the petitioner alleging unauthorized absence particularly when all the relevant substantiating documents to prove that due to health problems only the petitioner could not attend the office from 22.12.2008 have been furnished by the petitioner. It is submitted that the enquiry conducted by the Enquiry Officer is bad in law as no witnesses were examined by the Enquiry Officer. It is submitted that though the petitioner has denied the charges, the Enquiry Officer has observed that the petitioner accepted his guilt and therefore, no further enquiry was necessary.
4. Learned counsel for the petitioner relied upon the following judgments in support of his contentions: 5
TMD,J W.P(Tr).No. 2113 of 2017 (1) Kulwant Singh Gill Vs. State of Punjab 1; (2) Roop Singh Negi Vs. Punjab National Bank and Others 2;
(3) Kuldeep Singh Vs. The Commissioner of Police and Others 3;
(4) Syed Zaheer Hussain Vs. Union of India and Others 4;
(5) Union of India Vs. H.C.Goel 5; (6) Krushnakant B.Parmar Vs. Union of India and Another 6;
(7) K.Muralidhar, Hyderabad Vs. Addl.Industrial Tribunal-cum-Addl.Labour Court, Hyderabd 7.
5. It is stated that the petitioner has submitted the medical reports in support of his contentions that he was ill and that he was taking medical treatment and the respondents have called for the report from the Gandhi Medical Hospital Superintendent, were only reported that the certificate could not have been given by a Forensic Expert as he is not the competent 1 1990 Scale (2) 597 2 Civil Appeal No.7431 of 2008, dt.19.12.2008. 3 AIR 1999 SC 677 4 AIR 1999 SC 3367 5 1964 AIR 364 6 Civil Appeal No.2106 of 2012, dt.15.02.2012. 7 W.P.No. 14417 of 2002, dt.24.11.2021 6
TMD,J W.P(Tr).No. 2113 of 2017 authority but has not held the certificate to be not a genuine one and that the respondents ought to have accepted the same or should have called for a report from medical officer who has issued the certificate to examine the authenticity of the same. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. H.C.Goel (cited supra) for the proposition that mere suspension should not be allowed to take the place of proof even in domestic enquiries. He further submitted that unless and until the absence period is willful and deliberate, the same cannot be treated as unauthorized absence. He placed reliance upon the judgment of the Hon'ble Supreme Court in the case Krushnakant B.Parmar (cited supra) on the principle that the punishment of removal from service is disproportionately high as against the alleged misconduct and that the order of punishment can be modified by the Court or can be directed to be modified by the Court. He placed reliance upon the decision of this Court in W.P.No.14417 of 2002, dated 24.11.2021 and prayed that the impugned order be set aside and the respondents be directed to permit the petitioner to join the service with all consequential benefits. Learned counsel for the petitioner further submitted that the petitioner had initially requested to allow him to resign from the 7 TMD,J W.P(Tr).No. 2113 of 2017 job but the alleged resignation was not accepted and the petitioner allowed to join duty in the year 2012 and though the petitioner has rendered services thereafter till the impugned order dated 07.12.2013 was passed, he was not paid salary for nearly seven months. He therefore prayed that the respondents be directed to pay salary for those seven months.
6. Learned Government Pleader for the respondents, on the other hand, relied upon the averments made in the counter affidavit and submitted that under Rule 18(a) of Fundamental Rules and Subsidiary Rules, when a person is continuously absent for more than a year, he shall be deemed to have resigned from service. He has drawn the attention of this Court to the letter addressed by the petitioner to the respondent No.3 on 23.07.2007, submitting that he was not able to attend the duties due to financial and family disputes and therefore, he intended to tender his resignation and had requested for his eligible claims to be settled on such resignation.
7. Learned Government pleader placed reliance upon the judgments of the Hon'ble Supreme Court in the case of Gujarat Electricity Board and Another Vs. Atmaram 8 TMD,J W.P(Tr).No. 2113 of 2017 Sungomal Poshani 8, and also the decision of this Court in the case W.P.No.39940 of 2022 wherein the order of removal from service on account of unauthorized absence period exceeding one year have been upheld.
8. Having regard to the rival contentions and the material on record, this Court finds that the petitioner claims to have applied for leave on medical grounds with effect from 22.12.2008 and has been extending the leave from time to time. However, it is an admitted fact that he did not join duty till 09.07.2012. In the common counter affidavit filed by the respondents on 27.02.2024, it is stated that the petitioner was unauthorizedly absent from 22.12.2008 without any prior intimation or prior sanction of leave. The petitioner has also not enclosed any documents to show that he had applied for medical leave from 22.12.2008. Therefore, the presumption to be drawn is that the petitioner had not applied for medical leave at the time of going on leave. Further, it is noticed that after a period of three years, the petitioner submitted an application on 30.06.2011 to permit him to resume duties, but did not bother to attend the office. Further, again on 10.07.2012, the petitioner 8 1989 AIR 1433 9 TMD,J W.P(Tr).No. 2113 of 2017 furnished the joining report along with medical certificates issued by the Assistant Professor (Forensic), Gandhi Medical College, Hyderabad, that he was suffering from "lower back pain sciatica" and requested the respondent No.3 to permit him to join duty. It is also noticed that the petitioner had submitted his resignation letters on 23.07.2007, 02.04.2008 and 09.12.2009 mentioning his personal and financial problems as reasons for the said request and had stated therein that he could not attend duty to the above reasons and that he decided to resign from duty and had requested the respondent No.3 to settle all his claims as per his entitlement. However, it is also noteworthy to observe that the said resignation letters are not stated to have been accepted by the respondents in their counter affidavit. Neither is the case of the respondents that any order of removal from service was passed during the interregnum period. Therefore, it is presumed that the petitioner was in service during the relevant period. It is also noteworthy that on submission of his joining report on 10.07.2012, the petitioner was permitted to join duty and an enquiry was directed to be conducted and after due enquiry, the petitioner was removed from service. The copy of notice dated 25.05.2012 has not been furnished either by the petitioner or by the respondents. 10
TMD,J W.P(Tr).No. 2113 of 2017 Therefore, this Court is of the opinion that the show cause notice may be dated 25.05.2013 and not 25.05.2012 as the petitioner has submitted his explanation on 08.06.2013 requesting to drop further proceedings against him and to pay the salary from 10.07.2012. Further, the show cause notice could not have been received during the period of absence. The Enquiry Officer's report is filed along with the counter affidavit and it is noticed therefrom, that two articles of charges were framed against the petitioner and the petitioner had accepted the documents produced by the presenting officer which were shown to him and he accepted the relevancy of articles of charges framed against him. The Enquiry Officer, however, has observed that the charged officer has accepted the charges against him and therefore, the question of conducting enquiry or examination of witnesses or cross examination of defence witness does not arise and he therefore dispensed with the said requirement. The Enquiry Officer has also observed that the petitioner had requested to give him an opportunity to make the good deficiency in the medical certificate submitted by him and in spite of the same, the disciplinary authority did not permit the charged officer to obtain counter signature of the competent medical authority/medical officer, as offered by him through his 11 TMD,J W.P(Tr).No. 2113 of 2017 letter dated 16.02.2013. He observed that the proposed penalty on the delinquent government servant appears to be unfair and unjust and in not allowing the charged officer to make good, the deficiency in the medical certificate cited amounted to denial of opportunity. This Court finds that the disciplinary authority has not taken note of any of this finding of Enquiry Officer, but has proceeded to impose the punishment of removal from service. This Court is of the opinion that unless and until, the medical certificate submitted by the petitioner is held to be not genuine and is held to be only irregular, the punishment of removal from service should not have been imposed by disbelieving such medical reports. The disciplinary authority ought to have given the petitioner an opportunity to get the said deficiency rectified or could have made further inquiries from the concerned doctor about the genuineness of his petitioner's claim of illness and thereafter, proceeded in accordance with law. Since the petitioner has denied the charges of unauthorized absence from the beginning, the finding of the Enquiry Officer that he has accepted the charges is also not correct.
9. In view of the same, this Court is of the opinion that the enquiry has not been properly conducted in this case of the 12 TMD,J W.P(Tr).No. 2113 of 2017 petitioner. Further, the Hon'ble Supreme Court in the case of Krushnakant B.Parmar (cited supra), has clearly held that unless until the absence is treated as willful and deliberate, even the authorized absence cannot be treated as a major misconduct for imposition of penalty of removal from service. In the case of Kulwant Singh Gill (cited supra), the Hon'ble Supreme Court has held that before imposing a major punishment, the regular enquiry has to be conducted. In the case of Roop Singh Negi (cited supra), the Hon'ble Supreme Court has held that if an Enquiry Officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis on self-same evidence should not have been taken into consideration and the material brought on record pointing the guilt are required to be proved. In the case of Kuldeep Singh (cited supra) on the principles of natural justice, it was held that one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross examine them. In the case of Syed Zaheer Hussain (cited supra), it was held that the punishment from dismissal from service for unauthorized absence of six days (in that case) was too harsh. 13
TMD,J W.P(Tr).No. 2113 of 2017 In the case of H.C.Goel (cited supra), it was held that technical rules which governed criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty, scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiry held under statutory rules.
10. By applying the above principles to the case on hand, this Court finds that the disciplinary authority has misplaced its reliance upon the admission of the petitioner to the relevancy of the documents to the articles of charges as admission of guilt and has proceeded to hold the charges as proved. Therefore, the enquiry cannot be said to have been properly conducted and any order of punishment passed on the basis of such enquiry report cannot be sustained. Further, as seen from the record, the medical certificates submitted by the petitioner have not been held to be not genuine and the petitioner ought to have been given an opportunity to rectify the defects of those medical certificates.
11. As regards the ground taken that Fundamental Rules and Subsidiary Rules 18(a) would apply to this case, this 14 TMD,J W.P(Tr).No. 2113 of 2017 Court observes that the respondents have not initiated action under the said provision and therefore, the respondent cannot be take shelter of that provision at this stage and that too only while filing the counter affidavit.
12. The respondents submitted that the petitioner has not availed the remedy of appeal, but has approached the High Court directly. This Court finds that the petitioner is challenging the procedure followed in the enquiry and that it is against the principles of natural justice. This Court finds that the contention of the petitioner is correct and therefore, the petitioner can approach the High Court under Article 226 of Constitution of India directly. Therefore, this objection of the respondent is rejected.
13. In view of the same, this Court is inclined to set aside the impugned punishment order and directs the respondents to re-instate the petitioner into service without any backwages except for the salary for the period from 10.07.2012 till the date of his removal from service i.e., 07.12.2013. The respondents are however, directed to re-consider the application of the petitioner for medical leave on the basis of the medical certificates submitted by him and are at liberty to proceed 15 TMD,J W.P(Tr).No. 2113 of 2017 against the petitioner if the said certificates are found to be not genuine. The respondents shall take a decision about his medical leave and also as to his eligibility for consequential benefits of medical leave, if the medical leave is granted. Further, if the petitioner's medical leave is not granted for any reason, since admittedly, the petitioner has put in service from 1991 to 2013, the respondents shall consider acceptance of the application of the petitioner for resignation as voluntary or compulsory retirement and grant him the pensionary benefits for the relevant period by considering the relevant period of service.
14. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
15. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 20.08.2024 bak