Telangana High Court
P. Satyanarayana vs The Principal Secretary on 20 August, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).NO. 2113 of 2017
ORDER:
In this writ petition, the petitioner is challenging the
impugned proceedings dated 07.12.2013 passed by the
respondent No.3 in removing the petitioner from service as
Office Subordinate at District Insurance Office, Medak at
Sangareddy, as illegal, arbitrary and prayed for setting aside of
the same and consequently to direct the respondents to
continue the petitioner to discharge his duties as Office
Subordinate and pay the salary with effect from 10.07.2012 and
also to treat the absence period on medical leave and to pass
such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ
petition are that the petitioner was appointed as an Office
Subordinate under the control of respondent No.3 in the year
1991. Since the date of his appointment, the petitioner was
discharging his duties as Office Subordinate and it is claimed
that he fell ill and was admitted to the hospital in the year 2008
and therefore, he had applied for medical leave with effect from
22.12.2008. Since the petitioner was not able to recover from
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his illness, he was extending the leave from time to time on
medical grounds and after recovery from illness, he submitted
his joining report on 30.06.2011 requesting the respondent No.3
to permit him to join duty. The petitioner claims to have
submitted all the relevant medical certificates along with the
said joining report. However, the respondent No.3 did not permit
the petitioner to join his duty and subsequently, on submitting
further joining report, the respondent No.3 permitted the
petitioner to join duty with effect from 10.07.2012. The
petitioner claims that the respondent No.3, however, failed to
pay any salary for the said working period and instead, a show
cause notice dated 25.05.2012 was issued by the respondent
No.3 calling for his explanation as to why his services should
not be terminated in terms of G.O.Ms.No.128, Finance (FR-I)
Department, dated 01.06.2007. When there was no response
from the petitioner, the respondent No.3 issued a Charge Memo
No.05/Admn/DIO-Medak/2012-13, dated 11.02.2013, was
issued for unauthorized absence from duty with effect from
22.12.2008 to 09.07.2012. The petitioner has submitted his
explanation on 16.02.2013 denying the charges and requesting
to drop all further proceedings and also to pay the salary for the
period for which he discharged his duties after joining the duty
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with effect from 10.07.2012. It is submitted that the respondent
No.3 did not consider the same, but appointed an Enquiry
Officer to conduct enquiry against the charge of unauthorized
absence to duty with effect from 22.12.2008 to 09.07.2012 and
the petitioner claims to have submitted his explanation along
with the relevant documents i.e., including the relevant medical
evidence for his unauthorized absence from 22.12.2008. It is
claimed that the Enquiry Officer without conducting proper
enquiry, submitted his report holding the charges against the
petitioner as proved and upon receipt of the enquiry report, the
respondent No.3 issued a show cause notice proposing the
punishment of removal from service and required the petitioner
to submit his explanation against the said proposed major
punishment. The petitioner submitted his explanation and
requested the respondent No.3 to take a lenient view and
continue him as Office Subordinate. However, the respondent
No.3 issued the impugned order removing the petitioner from
service. Aggrieved thereby, the petitioner filed O.A.No.3077 of
2014 before the Andhra Pradesh Administrative Tribunal and no
interim order was passed in the same. Subsequently, on
abolition of the Tribunal, the case has been transferred to the
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High Court and re-numbered as W.P(Tr).No.2113 of 2017, i.e.,
the present Writ Petition.
3. Learned counsel for the petitioner submitted that
the respondent No.3 himself accepted the joining report of the
petitioner and permitted him to join duty with effect from
10.07.2012 after availing of medical leave by the petitioner and
therefore, he could not have initiated the departmental
proceedings against the petitioner alleging unauthorized
absence particularly when all the relevant substantiating
documents to prove that due to health problems only the
petitioner could not attend the office from 22.12.2008 have been
furnished by the petitioner. It is submitted that the enquiry
conducted by the Enquiry Officer is bad in law as no witnesses
were examined by the Enquiry Officer. It is submitted that
though the petitioner has denied the charges, the Enquiry
Officer has observed that the petitioner accepted his guilt and
therefore, no further enquiry was necessary.
4. Learned counsel for the petitioner relied upon the
following judgments in support of his contentions:
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(1) Kulwant Singh Gill Vs. State of Punjab 1;
(2) Roop Singh Negi Vs. Punjab National Bank and
Others 2;
(3) Kuldeep Singh Vs. The Commissioner of Police and
Others 3;
(4) Syed Zaheer Hussain Vs. Union of India and
Others 4;
(5) Union of India Vs. H.C.Goel 5;
(6) Krushnakant B.Parmar Vs. Union of India and
Another 6;
(7) K.Muralidhar, Hyderabad Vs. Addl.Industrial
Tribunal-cum-Addl.Labour Court, Hyderabd 7.
5. It is stated that the petitioner has submitted the
medical reports in support of his contentions that he was ill and
that he was taking medical treatment and the respondents have
called for the report from the Gandhi Medical Hospital
Superintendent, were only reported that the certificate could not
have been given by a Forensic Expert as he is not the competent
1 1990 Scale (2) 597
2 Civil Appeal No.7431 of 2008, dt.19.12.2008.
3 AIR 1999 SC 677
4 AIR 1999 SC 3367
5 1964 AIR 364
6 Civil Appeal No.2106 of 2012, dt.15.02.2012.
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authority but has not held the certificate to be not a genuine
one and that the respondents ought to have accepted the same
or should have called for a report from medical officer who has
issued the certificate to examine the authenticity of the same.
He placed reliance upon the judgment of the Hon'ble Supreme
Court in the case of Union of India Vs. H.C.Goel (cited supra)
for the proposition that mere suspension should not be allowed
to take the place of proof even in domestic enquiries. He further
submitted that unless and until the absence period is willful
and deliberate, the same cannot be treated as unauthorized
absence. He placed reliance upon the judgment of the Hon'ble
Supreme Court in the case Krushnakant B.Parmar (cited
supra) on the principle that the punishment of removal from
service is disproportionately high as against the alleged
misconduct and that the order of punishment can be modified
by the Court or can be directed to be modified by the Court. He
placed reliance upon the decision of this Court in W.P.No.14417
of 2002, dated 24.11.2021 and prayed that the impugned order
be set aside and the respondents be directed to permit the
petitioner to join the service with all consequential benefits.
Learned counsel for the petitioner further submitted that the
petitioner had initially requested to allow him to resign from the
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job but the alleged resignation was not accepted and the
petitioner allowed to join duty in the year 2012 and though the
petitioner has rendered services thereafter till the impugned
order dated 07.12.2013 was passed, he was not paid salary for
nearly seven months. He therefore prayed that the respondents
be directed to pay salary for those seven months.
6. Learned Government Pleader for the respondents,
on the other hand, relied upon the averments made in the
counter affidavit and submitted that under Rule 18(a) of
Fundamental Rules and Subsidiary Rules, when a person is
continuously absent for more than a year, he shall be deemed to
have resigned from service. He has drawn the attention of this
Court to the letter addressed by the petitioner to the respondent
No.3 on 23.07.2007, submitting that he was not able to attend
the duties due to financial and family disputes and therefore, he
intended to tender his resignation and had requested for his
eligible claims to be settled on such resignation.
7. Learned Government pleader placed reliance upon
the judgments of the Hon'ble Supreme Court in the case of
Gujarat Electricity Board and Another Vs. Atmaram
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Sungomal Poshani 8, and also the decision of this Court in the
case W.P.No.39940 of 2022 wherein the order of removal from
service on account of unauthorized absence period exceeding
one year have been upheld.
8. Having regard to the rival contentions and the
material on record, this Court finds that the petitioner claims to
have applied for leave on medical grounds with effect from
22.12.2008 and has been extending the leave from time to time.
However, it is an admitted fact that he did not join duty till
09.07.2012. In the common counter affidavit filed by the
respondents on 27.02.2024, it is stated that the petitioner was
unauthorizedly absent from 22.12.2008 without any prior
intimation or prior sanction of leave. The petitioner has also not
enclosed any documents to show that he had applied for
medical leave from 22.12.2008. Therefore, the presumption to
be drawn is that the petitioner had not applied for medical leave
at the time of going on leave. Further, it is noticed that after a
period of three years, the petitioner submitted an application on
30.06.2011 to permit him to resume duties, but did not bother
to attend the office. Further, again on 10.07.2012, the petitioner
8 1989 AIR 1433
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furnished the joining report along with medical certificates
issued by the Assistant Professor (Forensic), Gandhi Medical
College, Hyderabad, that he was suffering from "lower back pain
sciatica" and requested the respondent No.3 to permit him to
join duty. It is also noticed that the petitioner had submitted his
resignation letters on 23.07.2007, 02.04.2008 and 09.12.2009
mentioning his personal and financial problems as reasons for
the said request and had stated therein that he could not attend
duty to the above reasons and that he decided to resign from
duty and had requested the respondent No.3 to settle all his
claims as per his entitlement. However, it is also noteworthy to
observe that the said resignation letters are not stated to have
been accepted by the respondents in their counter affidavit.
Neither is the case of the respondents that any order of removal
from service was passed during the interregnum period.
Therefore, it is presumed that the petitioner was in service
during the relevant period. It is also noteworthy that on
submission of his joining report on 10.07.2012, the petitioner
was permitted to join duty and an enquiry was directed to be
conducted and after due enquiry, the petitioner was removed
from service. The copy of notice dated 25.05.2012 has not been
furnished either by the petitioner or by the respondents.
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Therefore, this Court is of the opinion that the show cause
notice may be dated 25.05.2013 and not 25.05.2012 as the
petitioner has submitted his explanation on 08.06.2013
requesting to drop further proceedings against him and to pay
the salary from 10.07.2012. Further, the show cause notice
could not have been received during the period of absence. The
Enquiry Officer's report is filed along with the counter affidavit
and it is noticed therefrom, that two articles of charges were
framed against the petitioner and the petitioner had accepted
the documents produced by the presenting officer which were
shown to him and he accepted the relevancy of articles of
charges framed against him. The Enquiry Officer, however, has
observed that the charged officer has accepted the charges
against him and therefore, the question of conducting enquiry
or examination of witnesses or cross examination of defence
witness does not arise and he therefore dispensed with the said
requirement. The Enquiry Officer has also observed that the
petitioner had requested to give him an opportunity to make the
good deficiency in the medical certificate submitted by him and
in spite of the same, the disciplinary authority did not permit
the charged officer to obtain counter signature of the competent
medical authority/medical officer, as offered by him through his
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letter dated 16.02.2013. He observed that the proposed penalty
on the delinquent government servant appears to be unfair and
unjust and in not allowing the charged officer to make good, the
deficiency in the medical certificate cited amounted to denial of
opportunity. This Court finds that the disciplinary authority has
not taken note of any of this finding of Enquiry Officer, but has
proceeded to impose the punishment of removal from service.
This Court is of the opinion that unless and until, the medical
certificate submitted by the petitioner is held to be not genuine
and is held to be only irregular, the punishment of removal from
service should not have been imposed by disbelieving such
medical reports. The disciplinary authority ought to have given
the petitioner an opportunity to get the said deficiency rectified
or could have made further inquiries from the concerned doctor
about the genuineness of his petitioner's claim of illness and
thereafter, proceeded in accordance with law. Since the
petitioner has denied the charges of unauthorized absence from
the beginning, the finding of the Enquiry Officer that he has
accepted the charges is also not correct.
9. In view of the same, this Court is of the opinion that
the enquiry has not been properly conducted in this case of the
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petitioner. Further, the Hon'ble Supreme Court in the case of
Krushnakant B.Parmar (cited supra), has clearly held that
unless until the absence is treated as willful and deliberate,
even the authorized absence cannot be treated as a major
misconduct for imposition of penalty of removal from service. In
the case of Kulwant Singh Gill (cited supra), the Hon'ble
Supreme Court has held that before imposing a major
punishment, the regular enquiry has to be conducted. In the
case of Roop Singh Negi (cited supra), the Hon'ble Supreme
Court has held that if an Enquiry Officer had relied upon the
confession made by the appellant, there was no reason as to
why the order of discharge passed by the Criminal Court on the
basis on self-same evidence should not have been taken into
consideration and the material brought on record pointing the
guilt are required to be proved. In the case of Kuldeep Singh
(cited supra) on the principles of natural justice, it was held that
one of the basic requirements is that all the witnesses in the
departmental enquiry shall be examined in the presence of the
delinquent who shall be given an opportunity to cross examine
them. In the case of Syed Zaheer Hussain (cited supra), it was
held that the punishment from dismissal from service for
unauthorized absence of six days (in that case) was too harsh.
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In the case of H.C.Goel (cited supra), it was held that technical
rules which governed criminal trials in Courts may not
necessarily apply to disciplinary proceedings, but nevertheless,
the principle that in punishing the guilty, scrupulous care must
be taken to see that the innocent are not punished, applies as
much to regular criminal trials as to disciplinary enquiry held
under statutory rules.
10. By applying the above principles to the case on
hand, this Court finds that the disciplinary authority has
misplaced its reliance upon the admission of the petitioner to
the relevancy of the documents to the articles of charges as
admission of guilt and has proceeded to hold the charges as
proved. Therefore, the enquiry cannot be said to have been
properly conducted and any order of punishment passed on the
basis of such enquiry report cannot be sustained. Further, as
seen from the record, the medical certificates submitted by the
petitioner have not been held to be not genuine and the
petitioner ought to have been given an opportunity to rectify the
defects of those medical certificates.
11. As regards the ground taken that Fundamental
Rules and Subsidiary Rules 18(a) would apply to this case, this
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Court observes that the respondents have not initiated action
under the said provision and therefore, the respondent cannot
be take shelter of that provision at this stage and that too only
while filing the counter affidavit.
12. The respondents submitted that the petitioner has
not availed the remedy of appeal, but has approached the High
Court directly. This Court finds that the petitioner is challenging
the procedure followed in the enquiry and that it is against the
principles of natural justice. This Court finds that the
contention of the petitioner is correct and therefore, the
petitioner can approach the High Court under Article 226 of
Constitution of India directly. Therefore, this objection of the
respondent is rejected.
13. In view of the same, this Court is inclined to set
aside the impugned punishment order and directs the
respondents to re-instate the petitioner into service without any
backwages except for the salary for the period from 10.07.2012
till the date of his removal from service i.e., 07.12.2013. The
respondents are however, directed to re-consider the application
of the petitioner for medical leave on the basis of the medical
certificates submitted by him and are at liberty to proceed
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against the petitioner if the said certificates are found to be not
genuine. The respondents shall take a decision about his
medical leave and also as to his eligibility for consequential
benefits of medical leave, if the medical leave is granted.
Further, if the petitioner's medical leave is not granted for any
reason, since admittedly, the petitioner has put in service from
1991 to 2013, the respondents shall consider acceptance of the
application of the petitioner for resignation as voluntary or
compulsory retirement and grant him the pensionary benefits
for the relevant period by considering the relevant period of
service.
14. Accordingly, the writ petition is disposed of. There
shall be no order as to costs.
15. Miscellaneous petitions, if any, pending in this
writ petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 20.08.2024
bak
