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2023 DIGILAW 494 (TS)

Y. Ramakrishna v. State of Telangana

2023-07-07

JUVVADI SRIDEVI

body2023
ORDER : This writ petition, under Article 226 of the Constitution of India, is filed by the petitioners, wherein, the following prayer is made: "To issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the impugned action of the 2nd Respondent in rejecting my Appeal Dated 13.06.2015 vide Rc.No. 11111/VC.A/2016-1 Dated 11.04.2016 as illegal, arbitrary, discriminatory, in violation of Rules 33 & 34 of the A.P. (Classification, Control and Appeal) Rules and also in violation of Articles 14, 16 and 21 of the Constitution of India and consequently direct the Respondents to modify the punishment of stoppage of 2 Annual Grade Increments with cumulative effect to that of stoppage of 2 Annual Grade Increments without cumulative effect and further to treat the period from 19.01.1997 to 12.04.1999 as extraordinary leave and also to treat the period from 13.04.1999 to 12.03.2000 as on duty and pass such other order or orders…” 2. I have heard the submissions of Sri P.Venkatesh, learned counsel for the petitioner, learned Assistant Government Pleader for Services-II representing the respondents and perused the record. 3. The undisputed facts of the case are that while the petitioner was working as Medical Officer, Leprosy Control Unit at Adilabad, he absented from duty from 19.01.1997 to 12.04.1999 without prior permission. After he reported to duty on 13.04.1999, he was kept waiting for posting till 12.03.2000. A charge memo was issued to him on 06.09.1999 to which, the petitioner submitted explanation on 05.02.2000. Subsequently, enquiry was conducted vide proceedings dated 16.08.2001, which culminated in awarding punishment of stoppage of two annual grade increments with cumulative effect, apart from considering the period of absenteeism as dies non. Further, the waiting period from 13.04.1999 to 12.03.2000 was treated as extraordinary leave. Though the petitioner submitted a representation dated 13.06.2015 in the form of appeal, the same was rejected by the disciplinary authority vide Rc.No.11111/VC/A/2016-1, dated 11.04.2016. 4. Learned counsel for the petitioner would submit that there was no mention of the appellate authority in the order, dated 11.04.2016 and no time was granted to the petitioner to file an appeal and as such, the respondents failed to comply Rule 21(2) of the CCA Rules. There is no mention in the punishment proceedings, dated 18.06.2001, that the absence of the petitioner was willful. There is no mention in the punishment proceedings, dated 18.06.2001, that the absence of the petitioner was willful. The respondents failed to serve a copy of Enquiry Report to the petitioner before inflicting punishment on him, which is against the principles of natural justice. The representation, dated 13.06.2015, of the petitioner in the form of appeal was rejected by the appellate authority in a mechanical manner. The punishment imposed upon the petitioner is not commensurate with the gravity of misconduct. Further, stoppage of two annual grade increments with cumulative effect had a cascading effect on the pay and allowances of the petitioner during the remaining period of his service and would also affect the retirement benefits, including pension and ultimately prayed to grant the relief sought in this writ petition. 5. Respondents filed counter, which is nothing but reiteration of the facts of this case. It is contended on behalf of the respondents that the petitioner was afforded opportunity to submit his explanation to the show-cause notice before awarding punishment. The petitioner is a doctor by profession and was posted to work at Leprosy Control Unit at Adilabad. His unauthorized absence caused certain difficulties to the department in particular and the public health at large in the locality where he was posted. Considering the gravity of misconduct, the respondents are justified in imposing punishment of stoppage of two annual grade increments with cumulative effect apart from considering the period of absenteeism as dies non and the waiting period as extra-ordinary leave. The contentions raised on behalf of the petitioner are unsustainable and ultimately prayed to dismiss the writ petition. 6. The sole ground on which the petitioner was awarded punishment is his unauthorized absence to duty. The question as to whether 'unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question as to whether absence is willful or because of compelling circumstances. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. True, absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. True, absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case, the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant. In a departmental proceeding, if an allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful and in the absence of such finding, the absence will not amount to misconduct. 7. In the instant case, the petitioner, in his representation dated 13.06.2015 submitted in the form of appeal, stated that he fell ill and was under medical treatment for chronic hypertension, diabetes and lumber sacral pain, which prevented him frequently to discharge his normal duties. He also stated that he underwent treatment during the period of absenteeism at various hospitals and that he enclosed copies of prescriptions. It is also his case that undergoing treatment for his illness was beyond his wish and he as compelled to be absent from duty for medical treatment and to survive with good health. The disciplinary authority failed to prove that the petitioner's absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the petitioner had taken a specific defence that his illness prevented him from attending duty, but such defence was ignored. Thus, the Inquiry Officer failed to hold that the absence was willful; the disciplinary authority, so also the Appellate Authority, failed to appreciate the same and wrongly held the petitioner guilty. 8. The approach of the Disciplinary Authority while imposing punishment should be rational and reasonable. The nature of misconduct is to be kept in mind while imposing the penalty. The right to impose the penalty carries with it the duty to act justly. The penalty imposed must be commensurate with the gravity of the misconduct and any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution of India. 9. The right to impose the penalty carries with it the duty to act justly. The penalty imposed must be commensurate with the gravity of the misconduct and any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution of India. 9. It is required to be noted that the petitioner has not disputed the charge of his remaining absent and has approached the respondents with folded hands and requested the authority to minimize the punishment. Therefore, this conduct is also very important that the petitioner has not denied the charge and has also not disputed the allegations made against him. On the contrary, he had admitted the same and has explained the circumstances under which he was compelled to remain absent. Therefore, in my view, misconduct of remaining absent due to such compelling circumstances cannot be considered to be serious misconduct, when the petitioner has admitted the charge leveled against him and when the petitioner has prayed to minimize the punishment imposed upon him in view of such circumstances. Having regard to the facts and circumstances of the case, this Court is of the firm opinion that the punishment imposed against the petitioner by the disciplinary authority and confirmed by the appellate authority is disproportionate to the gravity of the charge framed against him and that the petitioner is entitled for a lesser punishment than that was imposed upon him. 10. Accordingly, this writ petition is allowed. The punishment of stoppage of two annual grade increments with cumulative effect imposed against the petitioner vide Rc.No.11111/VC.A/2016-1 dated 11.04.2016 is modified to that stoppage of two annual grade increments without cumulative effect. Further, the period of unauthorized absenteeism of the petitioner, i.e., from 19.01.1997 to 12.04.1999 shall be considered as extra-ordinary leave of the petitioner and the waiting period, i.e., from 13.04.1999 to 12.03.2000 shall be treated as 'on duty' for all purposes. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed. There shall be no order as to costs.