State Of Telangana And 4 Others vs M Srinu
2023 Latest Caselaw 869 Tel

THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
                      AND
     THE HON'BLE SRI JUSTICE PULLA KARTHIK

               WRIT APPEAL No.77 OF 2023

JUDGMENT: (per AKS,J)

      This appeal is filed aggrieved by the order, dated

23.08.2022, passed in W.P.No.35118 of 2016 by a learned

Single Judge of this Court.


2.    Heard   the    learned    Special   Government     Pleader

appearing for the appellants and Sri D. Linga Rao, learned

counsel for the respondent.

3. Learned Special Government Pleader appearing for the

appellants had contended that the respondent was appointed

as a Police Constable in the Armed Reserve Police on

10.01.1992. He applied for leave from 25.05.2006 to

05.06.2006 on medical grounds and the same was

sanctioned. Thereafter, the respondent did not report to duty

and the appellants have treated him as a 'deserter' vide order,

dated 04.07.2006. The respondent was again taken into

service on 19.02.2008 only to conclude the disciplinary 2 AKS,J & PK,J W.A.No.77 of 2023

proceedings initiated against him. As the respondent was

declared as a 'deserter', the disciplinary authority has

conducted a regular enquiry, but the respondent did not

participate in the said enquiry. Left with no other option, the

disciplinary authority has conducted an ex parte enquiry and

the Enquiry Officer came to a conclusion that the charge

levelled against the respondent was proved in the domestic

enquiry and for the proven misconduct, the disciplinary

authority has imposed a punishment of removal from service

on the respondent vide order, dated 23.11.2009. Later, on

being unsuccessful in the appeal and revision as well as in

mercy petition and nearly seven years after passing of the

order of removal from service, the respondent has approached

this Court challenging the removal order by filing the subject

Writ Petition, and the learned Single Judge of this Court vide

impugned order, dated 23.08.2022, was pleased to allow the

Writ Petition and directed the appellants to reinstate the

respondent into service with 20% of the back-wages, without

appreciating any of the contentions raised by the appellants.

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                                                   W.A.No.77 of 2023

4. The learned Special Government Pleader had further

contended that the learned Single Judge ought not to have

interfered with the order of removal, as admittedly, the

respondent was absent and his whereabouts were not known

from the year 2006 onwards and that he has not participated

in the domestic enquiry and refused to receive the charge

memo and has also not cooperated, while conducting the

domestic enquiry. The respondent was working in police force

and the learned Single Judge has strangely recorded a finding

that unauthorized absence is not a grave misconduct. When

the respondent is working in a disciplinary force like the

appellants, the unauthorized absence, that too, for more than

three to four years will definitely constitute major misconduct.

Therefore, appropriate orders be passed in the appeal by

setting aside the impugned order and allow the appeal.

5. On the other hand, learned counsel for the respondent

had contended that the learned Single Judge has rightly

allowed the Writ Petition in favour of the respondent by taking

into consideration that the respondent has overstayed his 4 AKS,J & PK,J W.A.No.77 of 2023

leave period owing to various health issues including that of

bereavement in the family of the respondent. The learned

Single Judge has interfered with the order of removal on the

ground of proportionality, as admittedly, the respondent has

overstayed the sanctioned leave by few days and imposing

the punishment of removal from service is shockingly

disproportionate to the charge levelled against the

respondent. Therefore, there are no merits in the appeal and

the same is liable to be dismissed.

6. This Court, having considered the rival submissions

made by the learned counsel for the parties, is of the view

that the learned Single Judge was justified in interfering with

the order of removal from service on the ground of

proportionality, as admittedly, the respondent overstayed the

sanctioned leave period, however, the learned Single Judge

ought not to have directed the appellants to reinstate the

respondent into service. In normal course, the Court must

give its finding in respect of proportionality and remand the

matter to the authorities concerned for reconsideration to 5 AKS,J & PK,J W.A.No.77 of 2023

impose any other punishment, with a specific finding that the

punishment imposed is shockingly disproportionate to the

charge/s levelled. Therefore, this Court is of the considered

view that the learned Single Judge ought not to have directed

the appellants to reinstate the respondent into service, as the

learned Single Judge has interfered with the punishment of

removal from service by applying proportionality theory.

Therefore, the matter has to be remanded to the appellants to

reexamine the same and impose any other punishment on the

respondent, other than removal/dismissal from service, as the

punishment of removal from service imposed against the

respondent is shockingly disproportionate to the charge

levelled against him.

7. Accordingly, the impugned order, dated 23.08.2022,

passed in W.P.No.35118 of 2016 by the learned Single Judge

of this Court is modified and the matter is remanded to the

appellants to reexamine the case of the respondent afresh

and to impose any other punishment, other than removal or

dismissal from service on the respondent.

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                                                   W.A.No.77 of 2023

8. With the above observations/directions, the Writ Appeal

is disposed of. There shall be no order as to costs.

Miscellaneous Petitions, if any, pending in this Writ

Appeal shall stand closed.

___________________________ ABHINAND KUMAR SHAVILI, J

_________________ PULLA KARTHIK, J Date: 21-02-2023.

MD