Telangana High Court

G.Bala Swamy vs The Chief Executive Officer And 3 ... on 8 February, 2023

Bench: K. Sarath

       THE HON'BLE SRI JUSTICE K.SARATH

           WRIT PETITION No.16113 of 2020

ORDER:

This Writ petition is filed under Article 226 of

Constitution of India seeking the following relief:

"....to issue a writ, order or direction, more in nature of Writ Mandamus (a) declaring the action of the respondents, more particularly, the action of the 1st respondent in issuing the impugned Proc.No.1165/SERP/HR.II/Addl.DRDO /Vkbd/2020 dated 27.08.2020 (served on the petitioner on 01.09.2020) wherein alleging certain alleged allegations that he was absconded to duties without prior permission for a period 45 days is erroneous, contrary to record and contrary to the factual position for that imposing a major punishment of removal from service even without complying the principles of natural justice, without enquiry is highly, illegal, illegal, arbitrary, unjust, improper, colorable exercise of power, vindictive attitude, stigmatic in nature and violative of Article 14,16 and 311 of Constitution of India and set-aside or quash the same, and

(b) consequently direct the respondents to reinduct the services of the petitioner forthwith as Additional D.R.D.O, D.R.D.A, Vikarabad with all consequential benefits...."

SK,J W.P.No.16113 of 2020

2. Heard Sri S. Sathyanaraya Rao, Learned Counsel

appearing for the petitioner and Sri Rupender

Mahendra, Learned Counsel appearing for respondent

No.1

3. The Learned Counsel for the petitioner submits

that the petitioner was initially appointed as District

Project Manager in Society for Elimination of Rural

Poverty (SERP) on 23.10.2003. Subsequently basing

on his work experience and qualifications he was

posted as Area Coordinator during the year 2005 and

further promoted as Project Manager during the year

2010 and posted as Additional District Rural

Development Officer during the year 2018 and posted

at Vikarabad District till serving of impugned order of

removal from service dated 27.08.2020.

SK,J W.P.No.16113 of 2020

4. The learned Counsel for the petitioner submits

that the family members of the petitioner are residing

at Guntur for study purpose, as such on the evening

of 21.03.2020 after completing his duty the petitioner

went to Guntur by sending a message to his immediate

superior i.e. respondent No.4. On the subsequent

day i.e. on 22.03.2023 Janatha Curfew was observed

due to Covid-19. Thereafter the Government of India

declared complete lock down for 21 days due to

Carona pandemic, as such no transportation facilities

were available. On 26.03.2020 the petitioner requested

the respondent No.4 through whatsApp to allow him

to work from home, but the respondent No.4 replied

that the petitioner is not an I.T employee to be

permitted to work from home. As there was no

alternative the petitioner requested the respondent

No.4 for grant of leave to that extent and also

SK,J W.P.No.16113 of 2020

submitted a letter on 26.03.2020 through whatsApp

requesting the respondent No.4 to exempt him from

attending office physically due to Carona pandemic as

well as lock down conditions. Due to domestic reasons

the petitioner requested leave up to 29.05.2020 and

finally the petitioner attended the office on 30.05.2020

and worked continuously up to 01.09.2020. However,

without conducting any enquiry or without issuing any

notice respondents served on him 01.09.2020

removing from service.

5. The Learned Counsel for the petitioner submits

that as per the Terms and Conditions for Control and

Appeal of SERP employees, there is a procedure

contemplated under Terms and Condition No.8.5 i.e.

procedure for imposing penalties. Therefore for

imposing major penalty prior enquiry is required and

SK,J W.P.No.16113 of 2020

the respondents have to conduct a detailed enquiry

before imposing the penalty of removal.

6. The Learned Counsel for the petitioner further

submitted that in the instant case the respondents

imposed major penalty of removal from service without

holding enquiry and without following procedure

prescribed under its regulations and the same is

against the principles of natural justice.

7. The Learned Counsel further submitted that the

Hon'ble Apex Court categorically held that even in the

case of terminating services of temporary employee

without conducting regular enquiry is bad in law and

requested to set-aside the impugned termination

orders.

8. The learned Counsel for the petitioner in support

of his contention relied on the following judgments:

SK,J W.P.No.16113 of 2020

(1) A.P.Ahuja Vs. State of Punjab and others1

(2) Jawanth Singh Prathap Singh Jadega Vs. Rajita Municipal Corporation and another2

9. Sri Rupendra Mahendra, Learned Counsel

appearing for respondent No.1. Basing on the counter

submitted that the petitioner had absented from duty

without prior permission from the higher authorities

and the action was initiated against the petitioner

and the petitioner was removed from service in

pursuance of the Terms and conditions of SERP, HR

Policy, 2009. The petitioner had willfully left the

headquarters without prior permission on 21.3.2020

and he was unauthorizedly absent from duties for

more than 68 days.

1. AIR 2000 SC 1080

2. 2009(1) SCC 49

SK,J W.P.No.16113 of 2020

10. The Learned Counsel for the respondent No.1.

further submits that as per the letters of the

petitioner dated 26.3.2020, 13.4.2020 and 17.6.2020

shows that the same were written from Vikarabad and

he had stated that he may be permitted to work from

home by showing his station at Viakrabad, which

clearly goes to show that the petitioner mislead the

office and requested for permission to work from home.

In the writ affidavit, the petitioner stated that he was

struck up in Guntur and could not attend to his duty

due to lack of transportation and also declaration of

lockdown which is totally incorrect. The unauthorized

absence of the petitioner had hampered paddy

procurement, SHC, Bank Linkage in particular and did

not maintain the decorum of the office. As per terms

and conditions of SERP, HR Policy (condition No.6.6),

if a person, who abstains himself from duty without

SK,J W.P.No.16113 of 2020

prior permission from higher authorities for more than

45 days, no notice as such is required and in view of

the same there are no merits in the writ petition and

requested to dismiss the petition.

11. After hearing both sides, and after perusing the

record, this Court is of the considered view that the

petitioner was worked in SERP from 2003 onwards in

various capacities and he was absent from duty from

21.03.2020 to 29.05.2020 during the Covid Pandemic

period. The petitioner submitted leave letters on

various grounds and the respondent authorities have

rejected the same. Further, the request of the

petitioner to work from home was also rejected and

was directed his physical presence, but the petitioner

failed to attend the office physically up to 30.05.2020.

Admittedly, the respondent authorities, without

SK,J W.P.No.16113 of 2020

conducting any enquiry, or without issuing any notice

to the petitioner passed impugned orders on

27.08.2020 and served on the petitioner on

01.09.2020. In the impugned Order it is mentioned

that the petitioner being a responsible District Officer

has violated the terms and Conditions of SERP, 2009

HR policy.

12. The condition No.6.6 of SERP, reads follows:

- Any employee who remains absent from duty for more than 12 months, shall automatically cease to be employee of The SERP. In all such cases a separate notice of the emploeye is not specifically required. However, this regulation does not preclude the competent authority to take disciplinary action against the employee if he is absent from duty without leave as per Terms and Conidtions for Control and Appeal of SEP Employees.