Telangana High Court
The Southern Power Distribution ... vs Rahemat Ali, on 13 March, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
*THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+WRIT APPEAL No.581 OF 2023
% 13-03-2024
# The Southern Power Distribution Company of Telangana Ltd.,
and others
....Appellants
Vs.
$ Rahemat Ali
.... Respondent
!Counsel for the appellants : Sri R. Vinod Reddy
Counsel for the respondent : Smt. CH. Sujatha
<Gist :
>Head Note:
? Cases referred:
1
2008 (8) SCC 469
2
2012(3) SCC 178
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT APPEAL No.581 OF 2023
Between:
The Southern Power Distribution Company of Telangana Ltd.,
and others
....Appellants
Vs.
Rahemat Ali
.... Respondent
JUDGMENT PRONOUNCED ON: 13.03.2024
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
__________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT APPEAL No.581 OF 2023
JUDGMENT:
(Per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
This Writ Appeal is filed aggrieved by the order passed by the
learned Single Judge in W.P.No.26493 of 2019, dated 31.03.2023.
2. Heard Sri G. Vidya Sagar, learned Senior counsel, representing
Sri R. Vinod Reddy, learned Standing Counsel appearing for the
appellants and CH. Sujatha, learned counsel appearing for the
respondent.
3. The brief facts of the case are as follows:-
i) The respondent herein joined the then Andhra Pradesh State
Electricity Board as a Watchman on 08.10.1982, and was promoted
to the post of a helper and further promoted to the post of Assistant
Lineman on 17.08.1998. While so, the respondent was absent from
duties from 01.08.2001. As he was continuously absent for more
than one year, an enquiry was ordered vide Memo dated 14.11.2003.
The Enquiry Officer after conducting enquiry, submitted his report
holding that the charges are established. The Disciplinary Authority,
vide order dated 20.08.2004 imposed punishment of deemed
resignation from duties and ceased to be in the Board employment
w.e.f. 01.08.2001 as per Regulation 28(3) of APSEB Service
Regulations Part-I. Aggrieved by the same, the respondent preferred
an Industrial Dispute vide I.D.No.48 of 2007, which was renumbered
as I.D.No.117 of 2009 on the file of Labour Court-III, Hyderabad, and
the same was dismissed vide Award dated 03.02.2010 by confirming
the final orders passed by the Disciplinary Authority. The
respondent challenged the Award in I.D. No.117 of 2009, by filing
W.P.No.4049 of 2011 before this Court.
ii) During the pendency of the Writ Petition, the respondent
filed an affidavit stating that he would forego the back wages.
Recording the same, this Court, vide order dated 07.03.2017 in
W.P.No.4049 of 2011, directed the appellants herein to treat the
period of absence i.e. 23.08.2001 to 13.08.2003 as dies non and his
entire service, except the period from 23.08.2001 to 13.08.2003, to
be counted for pension, gratuity and notional increments, and if any
junior is promoted, the competent authority shall assess the
suitability of the respondent for promotion, including his eligibility
for grant of retrospective promotion, and if found suitable, he shall
be granted other consequential benefits arising out of such
retrospective promotion. Aggrieved by the same, the appellants filed
W.A.No.1056 of 2017.
iii) The Division Bench of this Court, duly recording that
unauthorised absence breeds indiscipline and causes serious
inconvenience and hardship to the organisation, set aside the part of
the order of the learned Single Judge directing to reinstate the
respondent with certain conditions. This Court further permitted the
appellants to initiate fresh disciplinary proceedings de hors
Regulation 28(3) of the Andhra Pradesh State Electricity Board
Service Regulations (for short, 'the Regulations') and complete the
same within three months from the date of receipt of a copy of the
order. Pursuant to the same, the respondent was issued with a
Memo dated 16.09.2017 and he submitted his explanation denying
the charges. Thereafter, a departmental enquiry was conducted.
Five witnesses were examined in support of the charges. The
delinquent employee submitted his explanation to the charge sheet
and no further points were added in his defence. The Enquiry Officer
submitted his report on 10.11.2017, holding that the charge of
absconding from duties unauthorizedly from 01.08.2001 onwards is
in contravention of Regulation 4(xxiv)(a) of APSEB Employees
Conduct Regulations, as adopted by the DISCOMs, is established
and proved.
iv) Based on the said enquiry report a show cause notice, dated
02.02.2018, was issued proposing the punishment of 'removal from
service', enclosing a copy of the enquiry report. The respondent was
directed to submit his explanation within 15 days. He submitted his
explanation on 19.02.2018. Thereafter, the Disciplinary Authority
i.e. Divisional Engineer (Elec.) (Operations), Habsiguda, by an order,
dated 10.05.2018 imposed the punishment of removal from service
under Regulation 5(vii) of APSEB Discipline & Appeal Regulations.
Against the same, the respondent preferred an appeal, dated
05.07.2018. The appeal was rejected by the Superintending
Engineer (O) Circle, Habsiguda, vide, order dated 19.01.2019.
Challenging the orders of punishment, dated 10.05.2018, the
respondent filed the present Writ Petition No.26493 of 2019 and this
Court by an order, dated 31.01.2023 set aside the orders of the
punishment of Appellate Authority and directed the appellants to
reinstate the petitioner into service with all consequential benefits.
Aggrieved thereby, the present appeal is filed by the
appellants/S.P.D.C.L.
4. Learned Standing Counsel for the appellants contended that
the learned Single Judge failed to appreciate the fact that absence
from the duty is misconduct under the Conduct Regulations of the
Appellant organisation and that the delinquent employee in his
explanation to the charge sheet, admitted that he had applied for
Earned Leave from 12.08.2001 to 22.08.2001 to visit holy place of
Hazarat Hazi Ali Baba with his family and he fell sick and that he
was under medical treatment and that he submitted his willingness
to join duty on 13.08.2003. The explanation does not refer to any
sanction of leave for the period from 12.08.2001 to 22.08.2001, or
that he made an application for extension of leave from 22.08.2001
onwards. Thus, the charge of absence from duty without permission
is clearly established.
5. Learned Standing Counsel for the appellants further contended
that the learned Single Judge failed to appreciate that there is no
requirement of recording a finding that long absence is wilful when it
is clearly established that the respondent was absent from
12.08.2001 to 13.08.2003 and the respondent did not submit any
earned leave application. Further, the learned Single Judge ought to
have considered the fact that the Enquiry Officer in his conclusion,
held that the charge is established and therefore, held proven.
6. Learned Standing counsel for the appellants further contended
that the reference to the statement of Sri. M. Lakshmi Narayana, Ex.
Assistant Civil Surgeon, retired Government Civil Surgeon, that he
advised the respondent to take treatment from his residence itself,
and that the respondent was under treatment from 23.08.2001 to
11.08.2003 for "Koch's Abdomen", has no relevance to the charge
alleged and established. Admittedly, the respondent was not
admitted to any hospital as an inpatient during the said period for
his treatment. Further, the sickness of an employee cannot be
termed as a reason for incapacitating him from applying for leave or
obtaining sanction of leave. In support of his contentions, learned
Standing counsel for the appellants relied upon the judgment of the
Hon'ble Apex Court in State Of Punjab vs P.L. Singla 1, wherein it
was held that unauthorized absence or overstaying beyond leave
sanctioned is an act of indiscipline and where the employer treats it
as misconduct, holds an enquiry which warrants a punishment, the
Disciplinary Authority is empowered to impose the punishment
depending on various aspects including the period of absence. The
learned Single Judge failed to appreciate that in the present case, it
is a proven misconduct of remaining absent to duties from
12.08.2001 to 13.08.2003 as admitted by the respondent in his
explanation to the charge sheet, and that if the order of the learned
Single Judge is implemented, it would be very burden to the
department and the same has to be modified.
7. Learned Standing counsel for the appellants further contended
that the learned Single Judge erred in referring to the Judgment of
the Hon'ble Supreme Court in Krushnakanth B. Parmar vs. Union
of India 2, and contended that the facts in the said case are different
from the facts of the present case. The question which came up for
consideration in the above judgment is whether the unauthorized
absence from duties did tantamount to 'failure of devotion to duty' or
behaviour unbecoming of a Government servant, and the learned
2008 (8) SCC 469
2012(3) SCC 178
Single Judge failed to appreciate that in the present case, it is a
proven case of misconduct, as the respondent admitted to have
remained absent from 12.08.2001 to 13.08.2003. As such, the same
has no application to the present case. Accordingly, prayed to set
aside the order passed by the learned Single Judge in W.P.No.26493
of 2019, dated 31.01.2023, and allow the Writ Appeal.
8. On the other hand, learned counsel appearing for the
respondent submits that the learned Single Judge, after hearing both
sides and after considering the material on record, had rightly
passed the impugned order and there are no reasons to interfere with
the same. The learned Single Judge rightly appreciated the fact that
the respondent was removed from the service unilaterally and that
the punishment is highly excessive and disproportionate, as there is
no finding against him that he had absconded from duties
unauthorizedly w.e.f. 01.08.2001 onwards, and wilfully.
9. Learned counsel for the respondent further contended that the
respondent still has 12 months of service to be rendered before
attaining the age of superannuation and that he is willing to go on
compulsory retirement, with effect from the date of removal, i.e.,
10.05.2018, with all notional benefits, with a view to conclude the
litigation process. Hence, there are no merits in the Writ Appeal and
the same is liable to be dismissed.
10. This Court, having considered the rival submissions made by
the learned counsel for the respective parties, is of the considered
view that the respondent, in response to the show-cause notice dated
02.02.2018, stated as follows:
"It is submitted that I was unable to submit the leave
application nor obtained prior sanction of leave during the
period of unauthorized absence but which is due to
serious illness and there is no other intention behind it. I
was not admitted in any hospital for inpatient treatment
due to healing of disease takes long time. The treatment
was taken as per the advise of the doctor and the doctor
who attended the oral enquiry has categorically
established this fact. The treatment would generally be
taken as per the advise of the doctor and as per the
advise, the treatment was taken as outpatient. In case of
genuineness of my case it required to be examined, the
disciplinary authority ought to have referred my case for
genuineness of certificate, but the disciplinary authority
has failed to do so and this fact has been brought to
record during the oral enquiry by the enquiry officer
during his cross examination with doctor."
11. Based on the Enquiry Report, it was not for the learned Single
Judge to have reinstated the respondent with all consequential
benefits, when such a relief was not granted to the respondent even
in the first round of litigation, in W.P.No.4049 of 2011. The relevant
portion of the said order reads as follows:
"17. Subject to the treatment of the period mentioned as
above as dies non and forfeiture of back wages for the
entire period out of service, the petitioner is entitled to all
other benefits, (i) pay fixation benefits notionally (ii) entire
service of the petitioner except the period from
23.08.2001 to 13.08.2003, shall be counted for pension,
gratuity and and notional increments; (iii) in the
meantime, if any junior was promoted, as the petitioner
had rendered reasonable amount of service prior to the
order impugned, on restoration to service in the cadre of
Assistant Lineman, the competent authority shall assess
the suitability of the petitioner for his promotion including
his eligibility for grant of retrospective promotion from the
date of promotion of his immediate junior; and (iv) if the
competent authority finds the petitioner to be suitable for
such promotion, the petitioner is also entitled to claim
other consequential benefits flowing out of such
retrospective promotion. However, the petitioner is not
entitled to any attendant benefits. It is made clear that it
is not a case of exoneration of charges levelled against
him, but on procedural lapses in taking action after
conclusion of the disciplinary enquiry, the impugned
order is set aside."
12. The learned Single Judge in the above order also categorically
held that the relief granted to the respondent herein is merely on the
grounds of procedural lapses, and with respect to the fact that the
competent authority, as a quasi-judicial authority, cannot pass any
other order nor can impose a punishment which is not prescribed in
the Service Regulations and noted that it is not an exoneration of the
respondent from the charges framed against him.
13. The Division Bench of this Court, vide order dated 07.08.2017
passed in W.A.1056 of 2017, modified the order of the learned Single
Judge in W.P.No.4049 of 2011, by observing as follows:
"Unauthorised absence breeds indiscipline and causes
serious inconvenience and hardship to the organization.
Such acts cannot be viewed lightly. If, in the enquiry, it is
found that there is no justifiable reason for an employee
to be unauthorisedly absent, his services are liable to be
terminated. Showing of undue sympathies in favour of
such employees would cause serious damage to public
interest. Therefore, we hold that the impugned order of
the learned single Judge to the extent that it has directed
reinstatement of the respondent with certain conditions
cannot be sustained. While setting aside this part of the
order of the learned single Judge, we permit the
appellants to initiate fresh disciplinary proceedings, de
hors Regulation-28(3) of the Regulations, against the
respondent and complete the same within three months
from the date of receipt of a copy of this order.
The Writ Appeal is, accordingly, allowed to the extent
indicated above."
14. It was the categorical observation of the Division Bench that
the respondent herein cannot justify his absence from duties for the
period after 12.08.2001. Pursuant to the direction of the Division
Bench in the above order, fresh disciplinary proceedings were
conducted. The Enquiry Officer held that the charges framed
against the respondent were established and therefore, held proved
during the enquiry. As a consequence of such enquiry, the
appellants herein came to the conclusion that the long absence of
the respondent from his duties from 01.08.2001 onwards without
intimation to the department, was not intentional but due to
ignorance of law.
15. Thus being the case, the learned Single Judge ought not to
have reinstated the respondent with all consequential benefits. It is
needless to say that the order of the Division Bench dated
07.08.2017 clearly stated that the order of the learned Single Judge
in W.P.No.4049 of 2011 reinstating the respondent, cannot be
sustained merely because of procedural lapses in taking action after
the conclusion of the disciplinary enquiry. It therefore deemed it fit
and proper to set aside the order to the extent of reinstatement of the
respondent with certain conditions and consequently directed the
appellants to conduct a fresh enquiry.
16. It is pertinent to note that the absence of the respondent is not
for a period of one or ten days but for nearly two years. The
respondent's version that he could not communicate to the
department about his ill-health and the treatment which he
underwent, cannot be sustained. However, in view of the fact that
the remaining service of the respondent is less than ten months, the
ends of justice would be met if the order of the learned Single Judge
is modified from reinstating the respondent with all consequential
benefits to that of treating the respondent as compulsorily retired, in
accordance with law.
17. In light of the aforementioned discussion, this Writ Appeal is
liable to be disposed of by modifying the order of the learned Single
Judge in W.P.No. 26493 of 2019, dated 31.03.2023 from reinstating
the respondent with all consequential benefits to that of treating the
respondent as compulsorily retired, in accordance with law.
18. Accordingly, this Writ Appeal is disposed of. No order as to
costs.
Miscellaneous Petitions, if any, pending in this Writ Appeal,
shall stand closed.
_________________________________
ABHINAND KUMAR SHAVILI, J
________________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date:13.03.2024
Note: LR copy is to be marked
B/o
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