Telangana High Court
Sujatha Singh vs Union Of India on 3 June, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 7675 of 2021
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus to call for the records relating to the impugned final order No.V-15014/Disc/Maj-03/SS/(HPCL-V)/GHH/2020- 1562, dated 25.03.2020 imposing the major penalty of removal from service on the ground of unauthorized absence without giving reasonable opportunity of hearing, and the order dated 25.08.2020 rejecting the appeal petition of the petitioner, as illegal, arbitrary, unconstitutional and consequently to set aside the same and direct the respondents to reinstate the petitioner into service as Constable with all consequential benefits 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 a Constable in the year 2007 and she was posted in various units of CISF and rendered more than twelve years of service in the department. While working as such, the petitioner was served with a charge memo on 16.10.2009 framing the following two charges against her: (i) the petitioner failed to join duty on 14.03.2019 after Over 2 TMD,J W.P.No. 7675 of 2021 Staying Leave (OSL) for 173 days from 14.03.2018 to 02.09.2018 and exhibited gross misconduct; and (ii) the petitioner was awarded four penalties in the past, out of which two major penalties were for OSL and one minor penalty was for unauthorized absence.
3. An addendum to charge was also issued for deciding the quantum of penalty, if current charges are found to be proved.
4. The petitioner submitted a detailed explanation on 31.10.2019 denying the charges by duly enclosing the relevant supporting documents and requested to drop further action against her. The petitioner has explained that her absence was on account of compelling circumstances to take care of her ailing son and that she repeatedly sent requests for sanctioning of leave, which remained pending with concerned authorities and therefore, it does not amount to Over Staying of Leave. It is alleged that without considering the explanation of the petitioner, the respondent authorities appointed Presenting Officer and the Enquiry Officer to inquire into the charges framed against the petitioner under Rule 36 of CISF Rules, 2001 vide orders dated 16.10.2009. It is submitted that the Enquiry 3 TMD,J W.P.No. 7675 of 2021 Officer, without following the prescribed Rules and the procedure thereunder, conducted an enquiry and submitted his report on 23.12.2019 holding the charges as proved against the petitioner. Thereafter, the disciplinary authority directed the petitioner to submit her explanation and the petitioner submitted her explanation on 26.02.2020 by reiterating her earlier stand. But the disciplinary authority has agreed with the findings of the Enquiry Officer and imposed the major penalty of removal from service on the ground of unauthorized absence. It is submitted that the petitioner was not given reasonable opportunity of hearing since there was a countrywide lockdown due to Covid-19 pandemic with effect from 25.03.2020 and the removal order was received by her on 05.05.2020. It is submitted that the punishment order was highly illegal, arbitrary, unconstitutional and also highly harsh and disproportionate to the alleged misconduct.
5. Learned counsel for the petitioner submitted that the petitioner has, thereafter preferred an appeal to the appellate authority through proper channel on 20.05.2020 reiterating her earlier stand and also that out of 173 days treated as OSL, 100 days were granted as leave by the higher 4 TMD,J W.P.No. 7675 of 2021 authorities and for the remaining days, the petitioner had requested the authorities to extend the leave and also placed several applications explaining the reasons for her leave and some of them are pending consideration with the authorities and the petitioner was under the bonafide impression that the authorities will sanction the leave by considering her personal problems and the family conditions. It is submitted that the appellate authority, however, rejected her appeal vide orders dated 25.08.2020 without giving any findings on the submissions of the petitioner and the merits of the grounds raised in the appeal.
6. Learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in the case of State of U.P. and Others Vs. Saroj Kumar Sinha 1 and also in the case of Krushnakant B.Parmar Vs. Union of India and Another 2. In view of the above judgments, the learned counsel for the petitioner submitted that the order of removal and the appellate order confirming the said order of removal have to be set aside. 1 (2010) 2 SCC 772 2 (2012) 3 SCC 178 5 TMD,J W.P.No. 7675 of 2021
7. Learned Deputy Solicitor General of India appearing for the respondents, have filed a detailed counter affidavit of the respondents and submitted that due opportunity of hearing was given to the petitioner and all the prescribed procedure has been followed by the respondents and therefore, there is no cause for interference in this matter. The respondents have further taken a preliminary objection about the maintainability of the writ petition on the ground that the petitioner has not yet availed the departmental remedy in the form of submitting a revision petition before the revisional authority.
8. Learned counsel for the petitioner, on the other hand, submitted that the revision is not a statutory remedy and the petitioner has availed the statutory remedy of appeal, since the appeal of the petitioner was rejected, he filed the present writ petition.
9. Having regard to the rival contentions and the material on record, this Court finds that the main charge against the petitioner was that she has Over Stayed her Leave for 173 days from 14.03.2018 to 02.09.2018 and the second charge is that if the first charge is proved and as she has been punished on the earlier occasions for the very same reasons, the 6 TMD,J W.P.No. 7675 of 2021 same would be considered for awarding the quantum of punishment. It is noticed that the petitioner has submitted her explanation to the charge memo stating that she was under the bonafide impression that once she submitted her application to her immediate superiors, that would be the final and that the leave would be granted and had sought pardon for the same. However, the disciplinary authority was not satisfied with the said explanation and has appointed an Enquiry Officer as well as a Presenting Officer. Having gone through the enquiry report, this Court finds that sufficient opportunity was given to the petitioner for participating in the enquiry and the petitioner had also submitted her defence statement. The petitioner has never raised any objection with regard to the procedure or conduct of enquiry. Except for the merits of the case, the petitioner has not been able to bring out any irregularity or illegality in the conduct of enquiry. Even the order of appellate authority is a speaking order. The appellate authority has considered each of the grounds raised by the petitioner and has dealt with the same in detail. In such circumstances, this Court, under Article 226 of the Constitution of India, cannot interfere with the order of punishment.
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10. The judgments relied upon by the learned counsel for the petitioner are distinguishable on facts. In the case of Krushnakant B.Parmar (cited supra), the Hon'ble Supreme Court has held that the absence from duty should be willful and deliberate to invite the harsh punishment of removal from service. The Jharkhand High Court in the case of Namita Singh Vs. CISF and Others, has also considered the said judgment only to consider the quantum of punishment as to whether it was appropriate or proportionate to the alleged misconduct. In the case before this Court, both the disciplinary authority as well as the appellate authority have brought out the clear instances where the petitioner has failed to correct herself in spite of several opportunities granted earlier and in spite of penalties being imposed on her. Therefore, there is no case for consideration even on merits by this Court. However, the quantum of punishment of removal from service definitely appears to be excessive for the alleged misconduct of Over Staying of Leave. Therefore, this Court deems it fit and proper to permit the petitioner to submit a revision petition before the revisional authority, who shall consider the revision petition and also the quantum of punishment to be imposed on the 8 TMD,J W.P.No. 7675 of 2021 petitioner, without being influenced by any of the above observations of this Court.
11. With these directions, the writ petition is disposed of. There shall be no order as to costs.
12. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 03.06.2024 bak