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2024 DIGILAW 624 (TS)

Thota Rajender v. State of Telangana

2024-08-30

PULLA KARTHIK

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ORDER : Pulla Karthik, J. This Writ Petition is filed seeking the following relief : “To issue a Writ, Order of Direction, more particularly one in the nature of a Writ of MANDAMUS to declare the Memo.No.DEE/OP/HZB/ADM/JAO/SA/ D.No.601/19 dated 30.07.2019 issued by the 4th respondent wherein imposed the major punishment of “deemed to have been resigned from service w.e.f.08.03.2016 on the ground of unauthorized absence for duties” without giving reasonable opportunity and its consequential orders in Memo No.SE/OP/KNR/DE(T)/PO/JAO/S1/D.No.2825/22, 03.11.2022 issued by the 3rd respondent rejected the appeal submitted by the petitioner is illegal arbitrary and unconstitutional and set aside the same consequently direct the respondents to reinstate the petitioner into service as Lineman without all consequential benefits and pass such other order or orders may deem fit and proper in the circumstances of the case.” 2. Heard Sri Laxmalla Sandeep, learned counsel for the petitioner, and Sri Zakir Ali Danish, learned Standing Counsel for the respondent Corporation. 3. According to the petitioner, he was initially appointed as Watchman in the year 2002 in the respondent Corporation under the Medical Invalidation Scheme. Thereafter, he was promoted to the post of Junior Lineman in the year 2005. While so, he applied for medical leave for a period of ten days from 08.03.2016 to 10.03.2016. However, due to his serious health condition and also due to unawareness, he could not extend his medical leave and continued on leave till 08.07.2017. After recovering from ill-health, he submitted a representation to the authorities on 11.07.2017 requesting to consider his claim for admitting him into duties as Lineman, duly enclosing relevant medical certificate. Without considering the said representation, the respondents have issued a Memo dated 21.09.2017 to the petitioner to submit his explanation for unauthorized absence, to which, the petitioner has submitted his explanation on 26.09.2017. However, without considering the said explanation, the respondent authorities have initiated departmental proceedings and issued charge sheet vide Memo dated 07.02.2018, to which the petitioner has submitted a detailed explanation on 14.07.2018 denying the charges. Being dissatisfied with the said explanation, an Enquiry Officer was appointed to conduct an enquiry into the allegations vide Proc.No.SE/OP/KNR/ DE(T)/PO/JAO/S3(O&M)/D.No.3103/17, dated 30.01.2018. After conducting the detailed enquiry, the Enquiry Officer has submitted his report dated 23.02.2018 holding that the charges are proved. Being dissatisfied with the said explanation, an Enquiry Officer was appointed to conduct an enquiry into the allegations vide Proc.No.SE/OP/KNR/ DE(T)/PO/JAO/S3(O&M)/D.No.3103/17, dated 30.01.2018. After conducting the detailed enquiry, the Enquiry Officer has submitted his report dated 23.02.2018 holding that the charges are proved. Based on the same, the Disciplinary Authority has issued show cause notice dated 19.06.2018, to which, the petitioner has submitted a detailed explanation dated 14.09.2018. Without looking into the true and correct facts, the Disciplinary Authority has imposed the major penalty of ‘Deemed to have been resigned from service w.e.f.08.03.2016 for unauthorized absence from duty for more than one year’ vide Memo dated 30.07.2019 without giving a reasonable opportunity and imposed the punishment contrary to the Rules and settled principal of law. Therefore, imposition of major penalty by the respondent authority is highly arbitrary and disproportionate and amounts to violation of principles of natural justice. Learned counsel has further contended that questioning the punishment order dated 30.07.2019, the petitioner has preferred an appeal to the appellate authority through proper channel on 27.06.2020 ventilating his grievance by raising several grounds. Though the petitioner has specifically and categorically stated that his absence was due to compelling circumstances only i.e. he was suffering with serious health issues, but the appellate authority has mechanically passed the impugned order with pre-determined notion. Hence, the absence cannot be considered as unauthorized and only due to unavoidable circumstances, he was forced to go on leave and his absence is not willful. Further, the petitioner was under the bonafide impression that the authorities would sanction the medical leave by taking into consideration his health issues. In support of his submissions, learned counsel has relied on : (1) State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 ; (2) Krushnakant B. Parmar v. Union of India, (2012) 3 SCC 178 ; and (3) Union of India v. Giriraj Sharma, 1994 Supp (3) SCC 755 4. Per contra, the learned Standing Counsel appearing for the respondents has contended that after expiry of his initial leave for 11 days w.e.f.08.03.2016, the petitioner has neither joined his duty nor extended his leave. Further, only on 11.07.2017, the petitioner has submitted a representation to the Additional Assistant Engineer, Bheemadevarapally i.e. 5th respondent herein with a request to issue posting orders. Further, only on 11.07.2017, the petitioner has submitted a representation to the Additional Assistant Engineer, Bheemadevarapally i.e. 5th respondent herein with a request to issue posting orders. However, as Enquiry Officer was appointed vide proceedings No.SE/OP/KNR/ DE(T)/PO.JAO/S3(O&M)/D.No.3103/2017, dated 31.01.2018, and charge sheet was issued to the petitioner on 17.02.2018 asking him to submit his explanation within 15 days for which the petitioner has submitted his explanation. Further, as the explanation submitted by the petitioner is not satisfactory, it was decided to conduct an oral enquiry vide proceedings No.DEE (Inquiry-II&EO) NPDCL, Wgl.F.No.2284/D.No.14/18 dated 17.02.2018 and after conducting the enquiry, the Enquiry Officer has submitted his report dated 23.02.2018 with a finding that the charge against the petitioner was held proved. Considering the report of the Enquiry Officer, a show cause notice was issued on 19.06.2018 vide Memo No.DEE/OP/HZB/ADM/ D.No.501/18 calling for his explanation, to which, the petitioner has submitted his explanation stating that as he was suffering with severe back ache, he was advised not to move from one side to another and he was able to move only in the month of June 2017 and he was unaware of the Rules to apply leave for a longer period and requested him to exonerate from the charges. As the said explanation is not satisfactory and as per APSEB Regulations, the punishment of ‘deemed to have resigned from service w.e.f.08.03.2016 for his unauthorized absence from duty more than one year’ was imposed on the petitioner by the 4th respondent and the same was confirmed in appeal by the third respondent vide order dated 03.11.2022. Therefore, the respondents are justified in their action and the writ petition is liable to be dismissed. 5. This Court has taken note of the submissions made by the respective parties. 6. A perusal of the record discloses that while the petitioner was working as lineman and due to ill-health, initially, he has submitted a leave application seeking leave for 11 days from 08.03.2016 to 18.03.2016 on medical grounds. Thereafter, he has not made any application for extension of leave. Further, on 11.07.2017 he has submitted his representation with a request to treat his absence period as medical leave and also requested to issue posting orders. Thereafter, he has not made any application for extension of leave. Further, on 11.07.2017 he has submitted his representation with a request to treat his absence period as medical leave and also requested to issue posting orders. Without considering the same, an Enquiry Officer was appointed on 30.01.2018 and a charge memo was issued on 19.02.2018, for which, the petitioner has submitted his explanation stating that as he was suffering from heart problem coupled with Jaundice and Typhoid, he was admitted in hospital on 06.03.2016 and he applied for medical leave for 11 days. As his health was not recovered, by that time, as per the advise of the Doctor, he stayed in the hospital for some more time, however, due to his serious health issues, he could not submit another medical leave certificate and after recovering from sickness, he gave a representation on 11.07.2017 for giving posting orders. Here it is pertinent to note that though the petitioner has applied for leave initially for 11 days from 08.03.2016 to 18.03.2016, thereafter, he has neither joined duty nor applied for any extension of his leave from time to time for about 16 months i.e. from 19.03.2016 to 10.07.2017. 7. Even as per the Enquiry Report dated 23.02.2018, during the course of enquiry, the petitioner has submitted his explanation stating as under : “…. From the month March-2016 I was suffering from heart problem with Jaundice and Typhoid which was instructed by doctor. As on 06.03.2016 I was admitted in hospital for 10 days and I was sanctioned the medical leave. Later, I was joined in hospital for treatment and my wife take care of me. So, after completion of my medical leave doctor told not to join in duty because my position was in serious and he advised me to stay in Hospital. So, in this process the sanctioned medical leave was expired and I don’t know to submit another medical leave certificate. Later after curing my health problem on 11.07.2017 I gave the application for joining the job. I am presenting you that due to my health problem and to give the second Medical Certificate I did not attended the job from 08.03.2016 to 11.07.2017.” 8. Later after curing my health problem on 11.07.2017 I gave the application for joining the job. I am presenting you that due to my health problem and to give the second Medical Certificate I did not attended the job from 08.03.2016 to 11.07.2017.” 8. From the above, it is thus clear that the main contention of the petitioner from the inception is that he could not submit the leave application for two main reasons (1) severe health condition (2) unaware of Rules for applying for leave on medical grounds. Further, the petitioner has specifically pleaded that due to unavoidable/compelling circumstances he was unable to attend his duties. It is not the specific case of the respondents that the absence of the petitioner was willful and intentional. 9. While dealing with a similar situation, the Hon’ble Supreme Court in Krushnakant B. Parmar’s case (referred supra) has held as under : “17. 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 willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. 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 behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.” 10. In the case on hand, the respondents have not specifically pleaded that the absence of the petitioner is willful. Even as per the report of the Enquiry Officer also, the petitioner was absent to his duty unauthorizedly for about 16 months from 08.03.2016 to 10.07.2017. Hence, the allegation leveled against him through the charge sheet is held ‘proved’. Therefore, the element of ‘wilful absence’ is not attracted in the case of the petitioner. The record further discloses that the petitioner was appointed way back in the year 2002 and rendered nearly about 17 years of service and respondents have not reported any instance unauthorized absence allegedly committed by the petitioner earlier. Therefore, the element of ‘wilful absence’ is not attracted in the case of the petitioner. The record further discloses that the petitioner was appointed way back in the year 2002 and rendered nearly about 17 years of service and respondents have not reported any instance unauthorized absence allegedly committed by the petitioner earlier. Therefore, this Court is of the considered view that the punishment imposed on the petitioner is on higher side and cannot be sustained under law. 11. Accordingly, the order dated 30.07.2019 passed by the 4th respondent in Memo.No.DEE/OP/HZB/ADM/JAO/SA/D.No.601/19 and confirmed by the 3rd respondent in Memo No.SE/OP/KNR/DE(T)/PO/JAO/S1/D.No.2825/22, dated 03.11.2022, are hereby set aside and the matter is remanded back to the authorities concerned with a direction to impose lesser punishment than the punishment of removal/termination/ dismissal enumerated in the Regulations of the Corporation. 12. The Writ Petition is allowed, to the extent indicated above. Miscellaneous petitions pending, if any, shall stand closed. No costs.