Telangana High Court
M.Srinu, Khammam Dist vs Prl Secy, Home Dept, Hyderabad 4 ... on 23 August, 2022
Bench: P.Madhavi Devi
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 35118 OF 2016
ORDER:
This Writ Petition is filed by the petitioner challenging
the impugned order dated 23.11.2009, terminating the
services of the petitioner and the rejection orders passed by
the appellant Revisional authority, dated 05.05.2010 and
14.05.2012 respectively and consequently to hold that the
petitioner is entitled to reinstatement into service with all
consequential benefits duly treating the period of 'absence'
and 'suspension' as 'on duty' for all purposes and to pass
such other order or orders as this Hon'ble Court may deem
fit and proper in the circumstances of the case.
2. The brief facts leading to the filing of the present writ
petition are that the petitioner was working as Armed
Reserve Police Constable (ARPC) at District Armed Reserve,
Khammam. Reportedly, during the period 25.05.2006 to
05.06.2006, he fell sick and reported sick as per the
required procedure for the above period of 25.05.2006 to
PMD,J
W.P.No.35118 of 2016
05.06.2006 and the petitioner was granted permission. It is
submitted that thereafter also, due to his continuous
sickness and also due to the disturbances in his family
after the death of his brother, he could not report to duty
immediately. The respondent No.4 after waiting for 21 days
after sanction of leave and the petitioner continued to
remain absent, declared the petitioner as a deserter with
effect from 06.06.2006 by proceedings dated 04.07.2006. It
is alleged that the desertion order was served on the
petitioner only on 22.07.2006. Thereafter, enquiry
proceedings were initiated after framing charges vide
memorandum in C.No.13/A12/PR/2006, dated
12.10.2006 alleging that the petitioner had reported sick
from 25.05.2006 to 05.06.2006 but did not report for duty
from 06.06.2006 and completed 21 days of absence period
by 26.06.2006 and consequently, he was declared as a
deserter, but even thereafter he failed to report for duty.
However, upon the petitioner reporting to duty on
19.02.208, he was taken into duty and was placed under
suspension with effect from 01.03.2008. On the petitioner's
PMD,J
W.P.No.35118 of 2016
request dated 10.03.2009 to take him back into duty, the
SP, Khammam revoked the suspension order vide orders
dated 18.03.2009 and the petitioner reported for duty on
28.03.2009. Thereafter, the disciplinary proceedings were
concluded vide proceedings dated 22.11.2009 awarding
punishment of removal from service since the unauthorized
absence period is more than one year. The absence period
from 06.06.2006 to 26.03.2008 was treated as 'leave
without pay' and the suspension period from 11.03.2008 to
28.03.2009 was treated as 'not on duty'. Both the appeal
as well as the revision filed by the petitioner were rejected,
and challenging the order of removal and also the orders of
appellate as well as the revisional authorities, this writ
petition is filed.
3. It is alleged that an ex-party enquiry was conducted
by the respondents into the allegations levelled against the
petitioner and the enquiry officer has submitted a report
holding the charges as proved. It is submitted that though
the enquiry report was communicated to the petitioner, but
due to his sickness and disturbances in family, he could
PMD,J
W.P.No.35118 of 2016
not submit his further representation and that none of the
authorities have considered the extenuate conditions which
caused the delay in the submissions of the petitioner.
4. The learned counsel for the petitioner argued that no
reasons were given either by the appellate authority or
revision authority for rejecting of appeal/revision
respectively and therefore, the order suffers from being
non-speaking as well as being passed without application
of mind. It is submitted that the petitioner has rendered 16
years of service and therefore, the punishment of removal
from service for unauthorized absence initially for a period
of 21 days i.e., from 06.06.2006 to 26.06.2006 and
thereafter from 27.06.2006 to 28.03.2009, in spite of
treating the said period as 'not on duty' and 'leave without
pay' is highly excessive and therefore, the petitioner should
be directed to be reinstated into service with all
consequential benefits.
PMD,J
W.P.No.35118 of 2016
5. Learned Standing counsel for the respondents has
filed a counter affidavit stating that the petitioner has not
given any reasonable cause for being absent from duty
from 06.06.2006 to 26.03.2008 and in a disciplined force
like that of the respondents, it cannot be tolerated.
Therefore, the learned Standing counsel justified the
punishment of removal.
6. Learned counsel for the petitioner however,
submitted that the petitioner had subsequently reported
for duty and petitioner was allowed to perform duty from
19.02.2008 to 01.03.2008 and thereafter, again he was
placed under suspension on 27.03.2008 to 28.02.2009. It
is submitted that once the petitioner has been allowed to
work, the absence period from 28.03.2008 to 27.03.2009
cannot be treated as leave without pay. Therefore, he
sought setting aside of the punishment order.
7. Having regard to the rival contentions and material
on record and also the judgments relied upon by the
PMD,J
W.P.No.35118 of 2016
learned counsel for the petitioner in the case of Prameela
and Others Vs. APSRTC, Hyderabad and Others1 and in
the case of M.Rajesham Vs. A.P.Transco and Others in
Writ Petition No.3018 of 1999, this Court is of the
opinion that unauthorized absence of the period as stated
above cannot be treated as grave mis-conduct and hence
the punishment of removal from service is shockingly
excessive. The Hon'ble Supreme Court in the case of
Krushnakant B.Parmer Vs. Union of India and Another
in Civil Appeal No.2106 of 2012 has held that
'unauthorized absence' cannot be treated as a grave mis-
conduct, warranting the punishment for removal from
service.
8. Respectfully following the same, this Court deems it
fit and proper to direct the respondents to reinstate the
petitioner into services. However, the petitioner shall be
eligible only for 20% of the back wages, and the absence
period shall be taken into consideration as continuity of
1 2011 (3) ALD 641
PMD,J
W.P.No.35118 of 2016
service for the purposes of terminal/retirement benefits
only.
9. Accordingly, this writ petition is partly allowed. There
shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
____________________________
JUSTICE P.MADHAVI DEVI
Dated: 23.08.2022
bak
PMD,J
W.P.No.35118 of 2016
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 35118 OF 2016
Dated: 23.08.2022
bak
