Mir Rifaquat Ali vs The State Of Telangana

Telangana High Court

Mir Rifaquat Ali vs The State Of Telangana on 3 May, 2024

            THE HON'BLE SRI JUSTICE PULLA KARTHIK

                   WRIT PETITION No.39940 of 2022
ORDER:

This Writ Petition is filed seeking the following relief:

"... to call for the connected records relating to issuance of Memo No.38331/CT.I/2017 dated 01/09/2022 of the 1st respondent, declare the same as illegal, arbitrary and the one passed without examining the issue in proper perspective further also contrary to the decision of the Hon'ble Apex Curt followed in catena of cases of this Hon'ble Court, set aside the same as such including the removal proceedings Rc. No.AM/76/2012 dated 24/10/2018 of the 3rd respondent and consequently direct the respondents to pass appropriate proceedings reinstating the petitioner into service with effect from his joining report dated 11/06/2015 submitted, with all consequential benefits treating the absence period as leave as applicable ..."

2) Heard Sri K. Ram Reddy, learned counsel for the petitioner, and learned Government Pleader for Services appearing for the respondents.

3) According to the petitioner, while he was working as Junior Assistant in the Office of the Commercial Tax Officer, Narayanaguda Circle, due to ill-health, he was constrained to apply leave, initially for a period of two months on 01.03.2012 and subsequently extended the leave from time to time and after complete recovery when he reported to duty on 14.06.2015, he was not permitted to join the duty vide rejection endorsement dated 20.06.2015. Against the said rejection, the petitioner has preferred an appeal before the second respondent on 09.08.2017 and the -2- same was rejected on 31.08.2017 reiterating the reasons stated in the earlier rejection endorsement dated 20.06.2015. Challenging the order dated 31.08.2017, the petitioner has approached this Court by filing W.P. No.30960 of 2017 wherein this Court has granted interim orders on 14.11.2017 directing the respondents to allow the petitioner to join, subject to his fitness, and made it clear that the said interim order will not prevent the respondents from taking appropriate departmental action against the petitioner, if the petitioner has committed any misconduct. In pursuance thereof, no further action was taken against the petitioner. Thereafter, this Court has allowed the said writ petition vide order 06.07.2018 by setting aside the rejection proceedings dated 31.08.2017 and leaving it open to the disciplinary authority to act as abide by law from the stage of receiving report of Enquiry Officer and by observing the procedure contemplated by the CCA Rules. Without complying with the above orders and without reinstating the petitioner into service, a show cause notice was issued to the petitioner. Challenging the same, the petitioner has filed another writ petition being W.P. No.30220 of 2018 wherein this Court has granted interim orders on 27.08.2018 directing the respondents to treat the petitioner as under suspension and directing the petitioner to submit his explanation to the notice within a period of one week thereof. Finally, the said writ petition was dismissed by -3- this Court on 08.03.2019 on the ground that the respondents have already passed the removal order dated 24.10.2018. As such, the petitioner has questioned the removal order dated 24.10.2018, before the Second respondent by way of an appeal and vide order dated 07.11.2019 the said appeal was rejected without considering the specific plea taken by the petitioner in the appeal that unauthorized absence of the petitioner was not willful and there was no finding in the enquiry to that effect and in contravention of the law laid down by the Hon'ble Apex Court in Krushnakant B. Parmar v. Union of India 1 and followed by this Court in W.P. No.28057 of 2015, dated 28.01.2016 wherein it was held that the Disciplinary Authority is required to prove that the unauthorized absence is willful. In the absence of any such findings, the absence will not amount to misconduct. Learned counsel has contended that without considering the above settled principle of law, the appellate authority has rejected the appeal in an arbitrary manner. Aggrieved by the same, the petitioner has filed revision before the first respondent on 29.11.2019 and the same was also rejected vide Memo No.38331/CT.I/2017, dated 01.09.2022, in a mechanical manner and without considering the material on record and the legal position. Therefore, the action of the respondents in imposing the punishment of removal and 1 2012 (3) SCC 178 -4- dismissing/rejecting the appeal and revision except reiterating the facts, cannot be sustained as there was no independent application of mind by the respondent authorities in dealing with the specific urge of the petitioner. Thus, it is contended that the impugned removal order dated 24.10.2018 passed by the disciplinary authority, the subsequent rejection orders in appeal and revision are liable to be set aside, as the impugned removal proceedings are highly disproportionate to the misconduct committed by the petitioner. Therefore, it is prayed to allow the Writ Petition.

4) Per contra, the learned Government Pleader submits that while the petitioner was working in the office of Commercial Tax Office, Narayanaguda division, Hyderabad, he has applied for extraordinary leave from 01.03.2012 to 30.04.2012 initially for a period of two months on medical grounds on the plea that he was suffering from severe upper respiratory infection, cough and breathlessness. Thereafter, the petitioner has filed applications for extension of leave up to 03.07.2012 only. After the said period, he did not file any application for extension of leave. It is further submitted that basing on the reports of the Commercial Tax Officer, Narayanaguda Circle, the charge memo dated 02.11.2012 was issued to the petitioner and an Enquiry Officer was appointed to enquire into the matter. The Enquiry Officer has conducted enquiry and submitted his report on 12.02.2016 holding that the -5- charge of unauthorized absence was proved. Thereafter, a show cause notice dated 18.02.2016 was issued, for which, the petitioner has submitted his explanation and requested for personal hearing and the same was considered. Thereafter, the Deputy Commissioner has issued orders that the petitioner is deemed to be resigned from government service vide Ref.No.AM/76/2012, dated 10.02.2017, against which, the petitioner has preferred an appeal to the Commissioner (Commercial Taxes) and the same was rejected vide endorsement in Ref.No.TS/C/E/1012/2015, dated 31.08.2017. Aggrieved by the same, the petitioner has filed W.P. No.30960 of 2017 before this Court and the same was allowed on 06.07.2018 by setting aside impugned order therein with liberty to the disciplinary authority to act as warranted by law from the stage of report of the Enquiry Officer and by observing the procedure contemplated under the CCA Rules. In compliance of the said order, dated 06.07.2018, show-cause notices were issued to the petitioner on 31.07.2018 and 02.08.2018. Thereafter, a final notice dated 24.08.2018 was issued directing the petitioner to file reply before 29.08.2018 and also to appear for personal hearing on 30.08.2018. In pursuance to the same, the petitioner has attended for personal hearing on 30.08.2018 before the Joint Commissioner (ST), FAC, Secunderabad, and submitted a copy of the order of this Court in -6- I.A. No.1 of 2018 in W.P. No.30220 of 2018 dated 27.08.2018 wherein this Court has directed to grant one week time from that date to the petitioner to file explanation and if such explanation is filed within the time granted, the competent authority shall consider the same on its own merits and pass appropriate orders by assigning due reasons in support of the decision. In pursuance thereof, after providing an opportunity of personal hearing to the petitioner, a penalty of removal from service was imposed against the petitioner vide proceedings No.AM/76/2012, dated 24.10.2018. Further, as per the orders of this Court in I.A. No.1 of 2018 in W.P. No.30960 of 2017, dated 24.05.2018, the petitioner was deemed to have been placed under suspension as per Rule 8 of TSCS (CCA) Rules, 1991, from 27.08.2018 to 24.10.2018 (59 days). It is further submitted that aggrieved by the punishment of removal imposed vide proceedings dated 24.10.2018, the petitioner has preferred appeal to the second respondent and the same was considered by giving an opportunity of personal hearing and rejected on 07.11.2019. Thereafter, the petitioner has preferred a revision petition to the first respondent and the same was rejected on 29.11.2019. Therefore, the respondents are justified in imposing the punishment of removal for the proven charge and the same is proportionate to the proven charge. Therefore, it is prayed to dismiss the writ Petition.

5) This Court has taken note of the submissions made by the respective parties and perused the record.

6) A perusal of the record discloses that, admittedly, the petitioner while working in Narayanaguda Circle has applied for extraordinary leave, initially, for a period of two months i.e. from 01.03.2012 to 30.04.2012 on medical grounds on the plea that he was suffering from severe upper respiratory infection, cough and breathlessness and the same was forwarded for consideration of the Deputy Commissioner of Commercial Taxes, Abids Division, who in turn, has forwarded the medical reports to the Superintendent, Osmania General Hospital, for verification and genuineness of his ill-health. In turn, the Superintendent, Medical Board, has given a call notice to the petitioner to appear on 15.06.2012 before the Superintendent, Osmania General Hospital, but the petitioner did not appear before the Medical Board and the Board has communicated that the Medical Board will meet on 30.06.2012 and on that date also the petitioner has failed to appear either before the Board or the Commercial Tax Officer, Narayanguda Circle. Further, according to the respondents, the petitioner has applied for leave up to 31.07.2012 only. Thereafter, no application was made for extension of his leave from 01.08.2012 till he reported to duty on 14.06.2015. Therefore, the third respondent has initiated disciplinary proceedings vide -8- Rc.No.AM/76/2012, dated 02.11.2012, framing the charge that the petitioner was unauthorizedly absent for duty from 01.08.2012 and the charge memo was sent to the individual's residential address by Registered Post and the same was returned with the endorsement of the postal authorities as 'not claimed returned to sender'. Hence, the charge memo was published in AP Gazette No.3, dated 16.01.2014. Even then the petitioner has failed to respond to the notification. As such, the disciplinary authority has appointed an Enquiry Officer to conduct an enquiry. The Inquiring Authority has conducted enquiry on 14.12.2015, 29.12.2015 and 31.12.2015 and on all those dates of hearing, the petitioner was present before the Inquiring Authority. The Enquiry Officer has submitted his report holding that the charge against the petitioner was proved. Further, admittedly, the petitioner has not submitted any leave application seeking extension of his leave from 01.08.2012 till he reported to duty on 14.06.2015. Further, basing on the Enquiry Report, the third respondent has imposed the punishment of 'deemed to have been resigned from services w.e.f.01.08.2012' upon the petitioner on 10.02.2017 by invoking FR 18-A and Rule 5(b) of Leave Rules. Challenging the same, the petitioner has approached this Court and filed W.P. No.30960 of 2017 and the same was allowed on 06.07.2018 by setting aside the punishment order dated 10.02.2017 on the ground that the Rule 9 -9- of CCA Rules does not prescribe the punishment of 'deemed to have been resigned from service' and further holding that F.R.18-A and Rule 5-B of Leave Rules could not have been invoked in the case of the petitioner, however, liberty was granted to the disciplinary authority to act as warranted by law from the stage of receiving of report of enquiry officer and by observing the procedure contemplated by the CCA Rules, 1991. Thereafter, in compliance of the above order of this Court, the third respondent has issued show cause notices to the petitioner on 31.07.2018 and 02.08.2018, to which, the petitioner has submitted his explanation and after affording the opportunity of personal hearing, the punishment of removal from service was imposed against the petitioner under Rule 9 (9) of TSCS CCA Rules, 1991, and the same was confirmed in appeal and revision by the second and first respondents.

7) Further, it is also an admitted fact that in spite of affording an opportunity, the petitioner has failed to appear before the Medical Board on 15.06.2012 and 30.06.2012, by which, an adverse inference can be drawn against the petitioner. Further, vide memo in USR No.27668 of 2023, dated 13.03.2013, the petitioner has filed certified copies of following medical reports to substantiate his sickness:

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      1)    Out Patient Card dated 27.02.2012
      2)    Pharmacy Bill dated 27.02.2012
      3)    (9) Test Reports dated 29.02.2012 and 08.03.2012

All the above documents show the medical history of the petitioner prior to his leave period from 01.03.2012 to 31.07.2012 only. As the said reports do not pertain to the absence period of the petitioner, the same cannot be looked into and are of no avail to the petitioner. Hence, it cannot be said that the absence of the petitioner is not a willful one. In that view of the matter the judgment relied by the learned counsel for the petitioner in Krushnakant's case (referred supra) is not applicable to the facts of the present case, for the aforementioned reasons and the absence of the petitioner cannot be said to be unintentional.

8) In view of the above, this Court is of the view that the punishment of removal from service imposed on the petitioner is proportionate to the proven charge. The Writ Petition is devoid of merits and therefore liable to be dismissed.

9) Accordingly, the Writ Petition is dismissed.

Miscellaneous petitions pending, if any, shall stand closed. No costs.

____________________ PULLA KARTHIK, J Date : 03 - 05 - 2024 sur