Telangana High Court

N.Parvathalu, vs Apsrtc, Rep By Its Managing ... on 21 February, 2022

Bench: P.Madhavi Devi

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.19717 OF 2011


                              ORDER

This Writ Petition has been filed by the petitioner under Article

226 of the Constitution of India seeking a Writ of Certiorari to quash

the impugned order of removal from service issued in Proceedings

No.P1/1(7)/2007-KLKY dt.12.03.2007 and the order of the 3rd

respondent issued in Proceeding No.PA/19(47).2008-RM-MBNR

dt.07.11.2008 served on 28.03.2011 in so far as not granting

continuity of service, attendant benefits and back wages and not

allowing the petitioner to discharge his duties when the petitioner

reported for duty before the 5th respondent on 31.03.2011 as arbitrary,

illegal, unjust and in violation of Articles 14, 16 and 21 of the

Constitution of India and consequently to direct the respondents'

Corporation to allow the petitioner to discharge his duties along with

continuity of service, attendant benefits and back wages in the interest

of justice and fair play.

2. Brief facts leading to the filing of this Writ Petition are that the

petitioner joined respondent Corporation as a Driver in the year 1990.

On 01.01.1992, his services were regularised. The petitioner was

removed from service on 12.03.2007 on the ground of unauthorised

absence from 07.02.2007 to 12.02.2007 without any prior sanction of W.P.No.19717 of 2011

leave from the departmental authorities and for not submitting any

sick certificate from RTC Hospital. The petitioner preferred an Appeal

before the Appellate Authority who rejected it and thereafter, the

petitioner preferred a Revision before the 3rd respondent who granted

relief to the petitioner vide order dt.07.11.2008 to the effect that the

petitioner should be reinstated into service as a fresh Driver. A copy

of the order of respondent No.3 was received by the petitioner on

28.03.2011 and thereafter the petitioner reported for duty on

31.03.2011 before the 5th respondent but the 5th respondent did not

allow him to join on the ground that the time granted in the order had

already expired. The petitioner submitted that he had received a copy

of the impugned order only on 28.03.2011 from the 3rd respondent and

therefore his joining report is also within time. However, he was not

allowed to join and discharge his duties. The petitioner preferred a

Review petition before the 3rd respondent. However, the same was

also held as time barred by the 3rd respondent who did not allow the

petitioner to join the service. Against such action of the respondents,

the petitioner has filed this Writ Petition. He submits that the reason

for his absence during the period 07.02.2007 to 12.02.2007, i.e., for a

period of five (5) days was due to his sickness and he also submitted

sick certificate from the RTC Hospital before the 4th respondent.

Therefore, his absence was due to reasonable and sufficient cause

only and there was no misconduct on his part requiring removal from

service. He further reiterated that the order of reinstatement was W.P.No.19717 of 2011

received by him only on 28.03.2011 and thereafter he admittedly

reported for duty on 31.03.2011 and threfore, there is no delay on his

part.

3. When the matter came up for admission on 18.11.2011, this

Hon'ble Court was pleased to direct the respondents to consider

allowing the petitoner to join the duty and discharge his duties

pursuant to the proceedings dt.07.11.2008 issued by the 3rd

respondent.

4. Learned counsel for the petitioner, Sri V. Narasimha Goud,

submits that pursuant to the interim direction, the petitoner was

reinstated into service on 27.12.2011 and was being paid fresh basic

pay till he retired from service on 31.01.2015.

5. The respondents have filed counter affidavit on 15.09.2011, i.e.,

prior to the interim direction and as far as the service of order of

reinstatement on the petitioner is concerned, at para 8 of the counter, it

is stated that the order was sent to the house address of the petitioner,

but it was returned by postal authorities and the address given in the

Writ Petition and the address to which the proceedings of the 3rd

respondent are sent are one and the same. It is submitted that the

petitioner had approached the 3rd respondent on 28.03.2011, i.e., after

a gap of 2 years 8 months by which time the order was not alive.

W.P.No.19717 of 2011

6. In view of the same, it is clear that the order copy was not

served on the petitioner as it was returned unserved by the postal

authorities and the reason for non-service of the order is not

mentioned in the counter filed by the petitioner. But the fact remains

that the petitioner was not aware of the order of reinstatement and

thereafter upon receiving the order, the petitoner immediately

approached the authorities for joining and discharging his duties in

accordance with law. Further, it is also seen that the period of sickness

from 07.02.2007 to 12.02.2007 was only 5 days and the petitioner had

also submitted sick certificate. It is clearly not a case of misconduct

but only unauthorised leave.

7. Learned counsel for the petitioner has relied upon the following

judgments:

1. Vijay Singh Vs. State of Uttar Pradesh and others1

2. Chhel Singh Vs. MGB Gramin Bank, Pali and others2

3. Union of India (UOI) and others Vs. Giriraj Sharma3

4. G.N. Prasad Vs. A.P.S.R.T.C. and others4

5. D. Yadagiri Vs. APSRTC rep. By its Managind Director, Musheerabad, Hyderabad5

(2012) 5 SCC 242

(2014) 13 SCC 166

MANU/SC/0058/1994

2014(2) ALD 237

W.A.No.1126 of 2009 dt.12.11.2009 of AP High Court W.P.No.19717 of 2011

The said decisions are also to the effect that the punishment of

removal from service for the charges of unauthorised absence is very

harsh.

8. Taking the contentions of the petitoner as well as the facts and

circusmtances of the case and the above judgments into account, the

action of the respondents in not permitting the petitioner to join duty

on 31.03.2011 on the ground of delay without actually serving the

order of reinstatement of the petitioner, is bad in law. Therefore, the

petitioner has to be directed to be reinstated. However, it is noticed

that the petitioner was reinstated on 27.12.2011 pursuant to the

interim order and retired from service on 31.01.2015 and therefore

directing reinstatement of the petitioner into service would be futile.

9. Therfore, the respondents are directed to pay 50% of the back

wages for the period of removal from service to the date of

reinstatement into service. The petitioner shall also be granted