T.Srinivasam, vs Union Of India,
2022 Latest Caselaw 1449 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.5036 OF 2003


                               ORDER

This Writ Petition is filed by the petitioner under Article 226 of

the Constitution of India seeking a Writ of Certiorari holding the

impugned order of removal of the petitioner from service passed vide

Order No.P.VIII-10/2000-12-EC-II dt.21.03.2001 by the 5th respondent

as illegal, arbitrary and against the principles of natural justice and to

direct the respondents to reinstate the petitioner into service with all

back wages and consequential benefits.

2. Brief facts of the case are that the petitioner joined the respondent

organization as a constable at Hyderabad office on 29.07.1991.

Thereafter, he was sent on deputation to CBI and was relieved therefrom

on 30.07.1999 and was supposed to join the respondent organization at

Assam. Meanwhile 60 days leave was granted by the Superintendent,

CBI and before joining the station at Assam. However, the petitioner fell

sick on 20.09.1999, i.e., just before the expiry of the leave period.

According to the petitioner, he took treatment in Osmania General W.P.No.5036 of 2003

Hospital up to 20.10.1999 and was kept on sick list up to 15.01.2000

and thereafter up to 05.05.2000 as per the advice of Osmania General

Hospital. He submitted that during this period he met with an accident

on 20.04.2001 because of which also he could not attend to the duties.

He submitted that he never received any notice from the CRPF, but all

of a sudden, he was removed from service vide order dt.21.03.2001 after

conducting an ex parte enquiry against the petitioner. He submitted that

he had intimated his Commandant in CRPF by telegrams about his

leave, but he was never intimated about rejection of his leave application

and since the petitioner was not available at the address given at the time

of his appointment, the respondents ought to have taken steps to serve

notice through CBI or by alternative mode if they could not serve

notices on the petitioner by the above mode. He submitted that all the

medical certificates were submitted before the appellate authorities, but

there was no verification of the said certificates by the authorities and

without any basis they held that the certificates are bogus.

3. Learned counsel for the petitioner, Sri V.R. Machavaram,

submitted that the petitioner had only overstayed his leave and it is not

unauthorised absence and the punishment of removal from service is W.P.No.5036 of 2003

disproportionate to the offence of unauthorised absence. In support of

his contentions that the said offence is not so grave as to call for removal

of service, he placed reliance upon the following two judgments:

(i) S.R. Tewari Vs. Union of India and another1

(ii) Krushnakant B. Parmar Vs. Union of India and another2

4. The learned counsel for the 1st respondent, Sri G. Praveen Kumar,

on the other hand, submitted that the petitioner never reported for duty

and that the notices were sent to the address given by the petitioner at

the time of entering the service and the petitioner never bothered to

intimate the change of address. He submitted that after receipt of

removal order, the petitioner has reported for duty and in the said

joining report, he has given the changed address and therefore, the

subsequent notices have been served at the changed address at

Hyderabad. He submitted that in the organization of the respondents,

discipline is of paramount importance and the petitioner has not taken

his duties seriously and therefore, a lenient view of removal of service

was taken instead of dismissal from service where he would not be

(2013) 6 SCC 602

(2012) 3 SCC 178 W.P.No.5036 of 2003

entitled to any terminal benefits. He therefore prayed that the order of

the respondents be confirmed.

5. Having regard to the rival contentions and the material on record,

it is seen that one of the grounds raised by the petitioner in this Writ

Petition is that the entire enquiry is ex parte the petitioner and the order

of removal was also not served on the petitioner. The reason for the

same seems to be that the respondents have issued notices to the

petitioner at his address given at the time of his initial appointment, i.e.,

his home address in Nizamabad, whereas the petitioner was working in

CBI on deputation and was residing at Hyderabad. Even the impugned

order of removal was sent to the address at Nizamabad and it is admitted

that only after the appeal has been filed by the petitioner giving his

correct address at Hyderabad, the orders have been intimated to the

petitioner at Hyderabad.

6. Therefore, without going into the merits of the case as to whether

the petitioner was justified in overstaying his leave or was it

unauthorised leave, this Court is of the opinion that the enquiry ex parte

the petitioner without serving notice on the petitioner is not sustainable.

As seen from the impugned order of removal, a copy of the same was W.P.No.5036 of 2003

marked to the Superintendent, CBI, III Floor, Block No.3, Kendra

Sadan, Sultan Bazar, Hyderbad for favour of information and necessary

action. Thus, the respondents were aware that the petitioner was

working with the CBI and since notices were not served on him, they

have directed the service of copy of the order on the CBI. It is only

thereafter that the petitioner has come to know about the order of

removal and appeal and thereafter revision would be filed by the

petitioner. Since it is confirmed and admitted by the respondents that

enquiry was conducted ex parte the petitioner, this Court is of the

opinion that the impugned order of removal on the basis of an ex parte

enquiry is not sustainable. It is therefore liable to be set aside. However,

it is seen that there was no suspension of the impugned order either in

the appeal or in the revision or before this Court and nearly 21 years

have lapsed after the order of removal has been passed.

7. In such circumstances, it would not be reasonable to direct the

respondents to re-conduct the enquiry or reinstate the petitioner into

service. Therefore, in the interests of justice, it is deemed fit and proper

to direct the respondents to grant the petitioner notional service from the

date of his removal till he attains the age of superannuation and pay him W.P.No.5036 of 2003

all benefits that he is entitled to on such superannuation. The petitioner

shall also be entitled to 50% of the back wages.

8. The Writ Petition is accordingly partly allowed. No order as to

costs.

9. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Dt. 24.03.2022 Svv