Telangana High Court

The Director, vs M Nagalakshmi on 26 July, 2022

Bench: Abhinand Kumar Shavili, N.V.Shravan Kumar

     THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI
                            AND
       THE HONOURABLE SRI JUSTICE N.V. SHRAVAN KUMAR


               I.A. No. of 1 of 2018 in W.A. No.1466 of 2018
                                     And
                            W.A. No.1466 of 2018

JUDGMENT: (Per the Hon'ble Sri Justice N.V. Shravan Kumar)

       I.A. No.1 of 2018 has been filed seeking to condone the delay of

(41) days in filing the appeal on the ground that the impugned order

dated 21.08.2018 was received in the office of the appellants through

their counsel on 24.09.2018 and sought further course of action from

their competent authority and decided to file appeal.                 During the

process of obtaining necessary instructions from their competent

authority, delay of (41) days occurred, which is neither wilful nor

wanton and therefore, the same may be condoned.


2.     For the reasons stated in the accompanying affidavit, filed in

support of this application, delay of (41) days in filing the present

appeal is condoned. Accordingly, I.A. No.1 of 2018 is allowed.


3.     This Writ Appeal has been preferred by the appellants/

respondents       against    the   order    dated       21.08.2018    passed     in

W.P. No.21025 of 2022 by the learned Single Judge of this Court

wherein and whereby allowed the writ petition directing the

appellants/respondents to reinstate the respondent/petitioner into

service as Junior Teacher in the first appellant/respondent-

Organisation with continuity of service and all other benefits.

AKS, J & NVSK, J

In W.A. No.1466 of 2018

4. The facts of the case, in a nutshell, are that the respondent/

petitioner was appointed to the post of the Junior Teacher through

selection process and placed her under probation for a period of two

years commencing from 20.07.1992. Her probation has to be declared

by 19.07.1994, but could not be happened so because of allegation

that her co-employee one Mr.Mahaveer Singh tried to outrage her

modesty, for which, she made a complaint before Bowenpally Police on

22.04.1994 and the same was registered as FIR No.51 of 1994.

Subsequently, as a counterblast, Mr.Mahaveer Singh also made a

complaint against the respondent/petitioner and she was issued with

Rule 14 charge sheet on 19.07.1994 and therefore, her period of

probation was extended for a period of six months w.e.f. 20.07.1994.

In this regard, the respondent/petitioner stated to have made a

representation dated 28.09.1994 before the 2nd appellant/respondent

with a request not to postpone declaration of her probation, but the

2nd appellant/respondent vide Office Order dated 03.02.1995 informed

her that the Departmental Promotion Committee had reviewed her

case and had adopted sealed cover procedure and the declaration of

the probation and confirmation of her services would be decided only

after conclusion of disciplinary proceedings initiated against her.

Thereafter, the respondent/petitioner stated to have filed another

representation dated 16.11.1995 seeking intervention of the

1st appellant/respondent for declaration of her probation since the

proceedings pending against her were nothing to do with declaration

of her probation and the 1st appellant/respondent vide orders dated AKS, J & NVSK, J

In W.A. No.1466 of 2018

10.04.1997 informed her that the charges framed against her under

Rule 14 charge sheet were not proved and she was exonerated from all

the charges but with a censure and the matter was closed.

5. The main grievance of the respondent/petitioner before the

learned Single Judge was that in spite of the above position,

the 1st appellant/respondent issued proceedings dated 25.04.1997

terminating her services as Junior Teacher without any prior notice,

enquiry and without assigning any reason and therefore, she earlier

filed W.P. No.9706 of 1997 that was disposed of on 26.02.2002 by

setting aside the order dated 25.04.1997 and remitted the matter to

the 1st appellant/respondent for the purpose of reconsideration in the

light of the observations made in the said writ petition. Pursuant

thereto, the 1st appellant/respondent issued proceedings dated

03.04.2002 appointing the respondent/petitioner afresh in the vacant

post of Fitter-cum-Machinist, to which post she is not qualified, on the

ground that the post of Junior Teacher is not available, and directed

the respondent/petitioner to go and work under the control of

Principal, MSMDC, New Delhi. Assailing the same, the respondent/

petitioner filed W.P. No.21025 of 2002 and the same was allowed by

setting aside the order dated 03.04.2002 with a direction to the

appellants/respondents to reinstate the respondent/petitioner into

service as Junior Teacher in the 1st appellant/respondent-

Organisation with continuity of service and all other benefits.

AKS, J & NVSK, J

In W.A. No.1466 of 2018

Aggrieved by the same, the appellants have preferred the present

appeal.

6. The learned Assistant Solicitor General Sri Namavarapu

Rajeshwar Rao, while reiterating the submissions already urged before

the learned Single Judge, inter alia, submitted that the learned Single

Judge has not appreciated the facts and circumstances of the case in

a proper perspective in coming to the conclusion that because of

refusal of the respondent/petitioner to compromise in the criminal

proceedings could only be the reason for issuance of impugned order

in the writ petition. He further submitted that since the performance

of the respondent/petitioner was not up to the mark, her probation

period was extended and later by invoking clauses 2 and 3 of the

appointment order she was terminated. Thereafter, pursuant to the

earlier order dated 26.02.2022 passed in W.P. No.9706 of 1997 by the

learned Single Judge, the respondent/petitioner was accommodated

in the post of Fitter-cum-Machinist having identical pay scale of

Junior Teacher and posted to work at Model School, New Delhi under

the close supervision and control of Principal MSMDC, in order to

have an objective assessment of her work performance as there was

no vacant post of Junior Teacher. Hence, the impugned order dated

21.08.2018 passed in the W.P. No.21025 of 2002 is liable to be set

aside.

AKS, J & NVSK, J

In W.A. No.1466 of 2018

7. On the other hand, the learned counsel Sri Mohd.Islamuddin

Ansari, appearing for the respondent/petitioner, submitted that the

learned Single Judge has appreciated the facts and circumstances of

the case in a proper perspective and passed the impugned order and

there is no necessity to interfere with the same and supported the

impugned order.

8. Heard the learned Assistant Solicitor General Sri Namavarapu

Rajeshwar Rao for the appellants/respondents and the learned

counsel Sri Mohd.Islamuddin Ansari for the respondent/petitioner

and perused the material made available on record.

9. The question falls for determination before this Court is whether

the impugned order suffers from any legal infirmity or not.

10. The only grievance of the appellants/respondents before this

Court is that the learned Single Judge has not appreciated the facts

and circumstances of the case in a proper perspective and passed the

impugned order contrary to law.

11. Having gone through the impugned order and the submissions

made by the learned Assistant Solicitor General appearing for the

appellants, reference to the relevant observations made in the writ

petitions is necessary and essential.

AKS, J & NVSK, J

In W.A. No.1466 of 2018

12. Certain observations made in the order dated 26.02.2001

passed W.P. No.9706 of 1997 by the learned Single Judge at

un-numbered paras extracted hereunder:

"....It may be that the episode of Mahaveer Singh is an independent episode and whether in fact it had influenced the NIMH to take the impugned action or not, in the absence of clear material this episode, cannot be taken into consideration for the purpose of appreciating the facts and circumstances of the case. As can be seen from the series of proceedings, I do not see any serious complaint, except repeatedly stating relating to the improvement of performance of work of the writ petitioner. As far as the attitude of a person is concerned, it depends upon several factors. No doubt, the respondents are making certain allegations relating to the complaints from the other quarters also. But, on over-all appreciation, the remarks in my opinion are not of such a serious nature or adverse remarks so as to disentitle the writ petitioner from being continued in service. This over-all appreciation of all the proceedings by this Court is only for the limited extent to show that especially in the light of the fact that there was no review of work performance at all during the period January 1995 to the date of the impugned order, the element of arbitrariness will set in and in this view of the matter, the decision taken by the 1st respondent in making the impugned order, is not just, reasonable and can be said to be arbitrary. I am conscious of the fact that this Court as a writ Court is not sitting over the decision of the 1st respondent as an appellate Court, nor this Court is reassessing the material available on record. It is suffice to state that the non-review of the work performance for sufficiently a long time for over more than two years and taking a decision in this AKS, J & NVSK, J

In W.A. No.1466 of 2018

regard and throwing the writ petitioner out of employment, cannot be said to be just or reasonable and to this limited extent, in the over-all facts and circumstances of the case, this Court is of the opinion that it is a fit matter to set-aside the impugned order and remit the matter back to the 1st respondent for the purpose of reconsidering the decision in the light of the observations made by this Court. This Court also is conscious of the fact that the concerned Institute is an Institute for mentally handicapped and the writ petitioner also may raise up to the occasion of serving the Institute to the best of her ability. In the light of the same, for the limited purpose specified above, I am inclined to remit the matter back to the 1st respondent in this regard."

13. Certain observations made in the order dated 21.08.2018

passed W.P. No.21025 of 2002 by the learned Single Judge at

un-numbered paras extracted hereunder:

"Having considered the facts and circumstances of the case and the rival contentions of both the counsel, in considered view of this Court, the action of the respondents in appointing the petitioner afresh by the impugned order dated 03.04.2002 as Fitter-cum- Machinist, for which post she is not qualified, under the premise that there is no post of Junior Teacher available in respondent Organization, is unsustainable.

Initially, the petitioner was selected and appointed in pursuance of the notification dated 25.01.1992 issued by the second respondent for the post of Junior Teacher reserved for candidates belonging to SC category, to be posted at Special Education Centre of the first respondent and the petitioner was appointed in the AKS, J & NVSK, J

In W.A. No.1466 of 2018

post of Junior Teacher in the Central Pay of Rs.1200- 2040 with all usual allowances applicable to the Central Government employees vide proceedings dated 02.07.1992 issued by the second respondent and she joined duty on 20.07.1992. She was under probation for a period of two years from 20.07.1992 and her probation has to be completed by 19.07.1994. Due to the incident occurred on 22.04.1994 wherein the co- employee of the petitioner by name Mahaveer Singh tried to outrage the modesty of the petitioner and based on the complaint of the petitioner, FIR in crime No.51/94 was registered by Bowenpally Police against Mahaveer Singh for the offence punishable under Sections 354, 342 and 323 of Indian Penal Code and he was tried for the said offences by the Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, in S.C.No.486/1994 wherein vide judgment dated 21.09.1995 the accused was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5000/-, in default to undergo simple imprisonment for five years.

After carefully considering the material available on record, this Court found that the incident occurred against the petitioner and subsequent refusal of the petitioner to compromise in the criminal proceedings, could only be the reason for the subsequent proceedings passed against the petitioner, there is no other reason worth consideration to pass impugned order. Petitioner was victimised at work place and was put to all difficulties and finally her services were terminated on 25.04.1997. Thereafter, as per the orders passed by this Court in W.P.No.9706/1997 dated 26.02.2002 the present impugned order is passed. The impugned order is passed without application of mind by the first respondent to the facts and circumstances AKS, J & NVSK, J

In W.A. No.1466 of 2018

of the case and rules of law applicable to the case. Learned counsel for the respondent tried to convince this Court that by invoking clauses 2 and 3 of the Memorandum of appointment dated 02.07.1992, the earlier termination of the petitioner was ordered. It is apt to extract clauses 2 and 3 of Memorandum of appointment, for better adjudication of the matter, which are as under:

2) The appointee will be on a probationary period of 2 years from the date of joining duty. The probationary period may be extended at the discretion of the competent authority. During the probationary period, the services of the employee can be terminated at any time without giving any notice and without assigning any reason.

3) The appointment can be terminated at any time by giving one month's notice on either side during the period of probation and three months notice after completion of probation. The Institute, however, reserves the right to terminate the services of the employee forthwith or before the expiry of notice period by making payment to the employee of a sum of equivalent to the pay and allowances for the period of notice or the unexpired portion thereof. The employee cannot, however, surrender pay and allowances in lieu of the period of notice or unexpired portion thereof and he may be required to serve for the full period of notice."

From a perusal of the above clauses coupled with the material on record, this Court feels that the impugned order is passed only as a measure of punishment in the background of Mahaveer Singh, however, giving a colour to it that the petitioner was terminated as per clauses 2 and 3 of Memorandum of appointment during the period of probation. This Court is of the considered AKS, J & NVSK, J

In W.A. No.1466 of 2018

view that the first respondent acted arbitrarily and contrary to the rules while passing the impugned order. Hence, the impugned order is liable to the set aside.

Accordingly, the Writ Petition is allowed by setting aside the Order No.NIMH/Estt.6 (168)/92/08 dated 03.04.2002 directing the respondents to reinstate the petitioner into service as Junior Teacher in the first respondent-Organization with continuity of service and all other benefits and the petitioner is entitled for payment of difference of arrears of pay by treating the petitioner as deemed to be in continuous service as per the orders of this Court in W.P.No.9706/1997 dated 26.02.2002 wherein her earlier termination was set aside. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order."

14. From the above all, it is noticed that whatever the grounds that

have been urged before this Court have already been urged before the

learned Single Judges and those grounds have also been well

considered and appreciated with cogent and convincing reasons by

the learned Single Judges. However, no new grounds or how the

impugned order is suffering from legal infirmity or contrary to law are

explained except saying that the impugned order is contrary to law.

The only submission of the appellants for posting the respondent/

petitioner to work at New Delhi is that there is no vacancy of Junior

Teacher at NIMH, the respondent/petitioner was accommodated

against the post of Fitter-cum-Machinist to work under close

supervision and control of the Principal MSMDC in order to have an AKS, J & NVSK, J