Telangana High Court
T.Ranjeeth Singh vs Government Of Telangana And 3 Others on 13 February, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.35142 OF 2022
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus to declare the impugned order passed by respondent No.2 in his proceedings File No.CTE-EST-1/SMAO/24/2019/ESTABLISHMENT- 1 CTE dt.26.08.2020 awarding penalty of reduction of pay by 3 increments with cumulative effect and also treating the unauthorized absence from 01.06.2019 to 26.06.2019 as dies-non with break in service, as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and consequently to direct the respondents to release all monetary benefits that otherwise accrue to the petitioner with attendant benefits and to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was working as Administrative Officer at S.S. Government Polytechnic, Zaheerabad, Sanga Reddy District. On the basis of the complaint given by respondent No.4, the petitioner was placed under suspension by the order of respondent No.2 dt.19.07.2019. W.P.No.35142 of 2022 2 The petitioner was admittedly absent from duties from 01.06.2019 to 26.06.2019 and on receipt a message on WhatsApp from respondent No.4 directing the petitioner to join duty immediately, the petitioner appeared and applied for leave from 01.06.2019 to 26.06.2019, however, the same was not considered and a Charge Memo dt.19.07.2019 was issued, to which, the petitioner submitted his statement of defence on 23.07.2019 explaining the compelling reasons for his absence. The petitioner had explained that his aunt, i.e., his father's younger brother's wife, who has reared him during his childhood, passed away and he was engaged in fulfilling the rituals. However, his explanation was not considered. He also submitted that the suspension beyond six months is required to be reviewed under FR 53 of the A.P. Fundamental Rules which was not done in his case, but subsequently, an enquiry was conducted on 25.02.2020 by issuing a questionnaire and the enquiry officer had given findings on the basis of the replies furnished by the petitioner to the questionnaire. The enquiry report was supplied to the petitioner and challenging the same, the petitioner filed W.P.No.5961 of 2017. It is submitted that by order dt.08.03.2017, the enquiry report was held to be not sustainable in law. Thereafter, the enquiry was again conducted and the impugned order W.P.No.35142 of 2022 3 dt.26.08.2020 was passed imposing the penalty of reduction of pay by three increments with cumulative effect and also by treating the period of unauthorized absence, i.e., 26 days as dies-non with break in service.
3. Learned counsel for the petitioner submitted that the punishment imposed by respondent No.2 is nothing but double jeopardy because it not only imposed the punishment of withholding of 3 increments with cumulative effect but also treated the period of 26 days of alleged unauthorized absence as dies-non with break in service, which has severe adverse effect on his pensionary benefits. It is thus submitted that the above punishments imposed on the petitioner are disproportionate to the charge of unauthorized absence of 26 days and the authority has failed to consider the reasons given by the petitioner for the alleged unauthorized absence.
4. The learned counsel for the petitioner further submitted that though there is an appeal provision against the order of punishment, the petitioner could not file it within time due to his ill-health and other domestic problems and that there is no provision in the Service Rules to condone the delay in filing the appeal under the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, W.P.No.35142 of 2022 4 'the CCA Rules, 1991') and therefore, the present Writ Petition has been filed challenging the punishment order.
5. The learned counsel for the petitioner, while reiterating the above submissions has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another 1, wherein it was held that absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful and if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. In view of the above judgment of the Hon'ble Apex Court, the learned counsel for the petitioner prayed for setting aside the impugned order.
6. Learned Government Pleader for Services-I, however, supported the impugned order and also relied upon the averments made in the counter affidavit justifying the action taken by the respondents.
7. Having regard to the rival contentions and the material on record, this Court finds that the only allegation against the petitioner in 1 Civil Appeal No.2106 of 2012 dt.15.02.2012 W.P.No.35142 of 2022 5 the Charge Memo is that the petitioner was negligent to his duties and he was unauthorisedly absent from duty from 01.06.2019 to 26.06.2019 and that he has not applied for any kind of leave and not taken prior permission for leave from higher authorities and therefore, it constitutes misconduct of failure to maintain absolute integrity and devotion to duty and commission of an act unbecoming a Government servant in violation of Sub-Rules (1) and (2) of Rule 3 of the Telangana Civil Services (Conduct) Rules, 1964.
8. Initially, an enquiry was conducted by the enquiry officer who, on the basis of the replies given by the petitioner to the questionnaire issued by him, has submitted the enquiry report by holding the charges as proved. When the petitioner challenged the same in W.P.No.5961 of 2017, this Court, vide orders dt.08.03.2017, has set aside the same with liberty to follow the procedure laid down under Rule 20 of the CCA Rules, 1991. Thereafter, the enquiry officer again furnished the enquiry report dt.03.06.2020 by holding the charges as proved. On the basis of the said enquiry report, a show-cause notice was given to the petitioner calling for the explanation of the petitioner on the enquiry report. The petitioner submitted his written representations and thereafter, another W.P.No.35142 of 2022 6 show-cause notice dt.06.08.2020 was issued to the petitioner seeking his explanation as to why the unauthorized absence period, i.e., from 01.06.2019 to 26.09.2019 should not be treated as dies-non with break in service apart from appropriate penalty under Rule 9 of the CCA Rules, 1991. The petitioner has again submitted his explanation and thereafter, the impugned order has been passed.
9. After going through the enquiry report dt.03.06.2020, it is noticed that the said enquiry report refers to the earlier periods of unauthorized absence of the petitioner and thereafter, the period of unauthorized absence mentioned in the Charge Memo. There is no reference to any documents which have been marked or any of the witnesses who have been examined. The enquiry report seems to be only on the basis of the Charge memo issued to the petitioner and the explanation submitted by the petitioner and therefore, it clearly is not in accordance with Rule 20 of the CCA Rules, 1991 and any punishment imposed on the basis of such an enquiry report cannot be sustained.
10. Further, the punishment of reduction of pay by three increments with cumulative effect is highly disproportionate to the charge of unauthorized absence of 26 days even if it were to be presumed that the W.P.No.35142 of 2022 7 period of 26 days was willful unauthorized absence. The Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another (1 supra) has held that only willful absence from duty would attract the charge of misconduct. For the purpose of ready reference, the relevant paragraphs of the said judgment are reproduced hereunder:
"15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
16. The question whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful.
18. 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 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.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to W.P.No.35142 of 2022 8 prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. 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."
11. Thus, as per the above precedent, to attract the provisions of misconduct, the act of unauthorized absence has to be proved to be willful. In the case before this Court, the petitioner has stated that due to death of a close relative, i.e., his aunt who had reared him during his childhood, he could not attend to his duties. Such reason given by the petitioner has not been found to be incorrect and neither the enquiry report nor respondent No.2 in the impugned order has given any finding that the unauthorized absence of 26 days is willful to attract the provisions of misconduct. Therefore, the charge of misconduct itself will not get attracted.
12. Further, the unauthorized period has been treated as dies-non with break in service by respondent No.2. As per Note 1 under Rule 5- A of the A.P. Leave Rules, 1933, only willful absence can be treated as dies-non for all purposes including increment, leave and pension. Since W.P.No.35142 of 2022 9 there is no finding of willful absence by the petitioner in the impugned order, respondent No.2 could not have treated the period as dies-non with break in service.
13. In view of the above, the impugned order of punishment is not sustainable and it is accordingly set aside. The petitioner is eligible for all consequential benefits. Respondent No.2 is directed to reconsider sanctioning the leave for the period from 01.06.2019 to 26.06.2019.
14. With the above directions, the Writ Petition is allowed. No order as to costs.
15. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 13.02.2024 Svv