WP/3110/2012 of S. Manohar Vs A.P. Social Welfare Residential Educational on 31 December 2021

ORDER

This Writ Petition [has been ][filed ][by ][the ][petitioner ][seeking ][a]Wdt of Certiorari to call [for ][the ][records ][and ][to ][quash ][or ][set ][aside the]proceedings in Rc.No.Zone-VlEstt./1 [496 ][12010, ][dt.17 ][.02'20 ][1 ][1 ][issued]by the 2nd respondent and [Rc.No.Zone-V ][lBstt.l149612010,]dt.14.09.2011 issued by the t" respondent, [as ][bad, ][illegal, ][arbitrary,]discriminatory, uncon st itut ional and violative ol principles ol naturaljustice and denial ol reasonable opportanity and consequently, todirect the respondents to reinstate the petitioner fbthwith with allconsequential beneflts such as tleating the period during which thepetitioner was kept out of service as on duty, payment of arrears,increments, pay fixation, etc.

2. Brief facts of the case as recited by the petitioner are that thepetitioner had completed his M.Sc., B.Ed., and was selected andappointed as Post Graduate Teacher (Mathematics) on 03.0g. 1993 andwas posted at Medipalli, Karimnagar District. Since his wife wasworking as Additional Village Development Officer at Huzurabad,Karimnagar District, at his request, he was transf-ened to a place closeto his wife's working place on 16.0l .1991. Horvever. when he wastranslerred to Muclhole. Acrilabad nisrricr t,itre proceeclir-rgs dt.l8,07.tgg5, he challenser, tho rged the sarne .^*- in W.p.No.l7g4 ...of 1995 andobtained interim directions and continued at Karinnagar. llowever,after the vacation of the interim direction, the petitioner was directedto report at Mudhole, Adilabad District on 02.10.1997 and,accordingly he joined at Mudhole and whire working there, his healthgot deteriorated as the water at that place did not suit him and for thisreason, he applied lor rnedical leave now and then. Again herequested for transfe. to Kirimnagar or wa.angal District but the samewas not granted. Though leave was granted intenr_rittently, he wasasked to repo( lor duty vicle rnemo dt.27.09.1998 and accordinglyafter he was found medically fit, the petitioner reporled for duty on09.10.1998 and worked there till O2.l2lgg8 and thereafter againsought for medical leave.

3. Thereafter, vide a show-cause notice dt.2g.12.1999, thepetitioner was asked to show cause as to why his services should notbe terminated, for which, the petitioner submitted joining report on13.01.1999 to the Principal, APSWR School / College, Mudhole,Adilabad District. but he vu,as not allou,ed to.loin and rvas directecl tosee the 2"'l rcsl-rondcnt irr tlris connection. Accordingly. thc petitionerapproacl-red the 2"'l respondent many'times, but he was not allowed tojoin duty. Thereafter, the respondents insisted that the petitioner shallgive an undertaking on a stamp paper that he would not seek rnedicalleave again. However, as the said insistence was not in accordance with rules, [the ][petitioner did not ][do ][so ][but ][gave an ][undertaking ][that ][he]will try [his ][best ][not ][to ][seek leave ][without ][justifiable ][reason']

4. However, [a ][show-cause ][notice ][dt'28'02'1999 ][was ][issued ][to ][the]petitioner, [wherein ][it ][was ][alleged ][that the ][petitioner ][was ][absent ][for ][a]continuous [period ][of248 ][days ][and ][that during the ][said ][period' ][he ][was]working in [a ][private ][college ][The petitioner submitted his ][explanation]denying [the ][allegations' ][The ][petitionel ][received anolher ][show-cause]notice dt. [1 ][9.03 ][. ][1999 ][stating ][that ][a ][panchanaua ][was ][conducted ][in]respect of the [petitioner, wherein ][it ][was ][notecl ][that ][the chalges ][against]the petitioner [were ][established ][/ ][proved ][and ][the ][petitioner ][was ][asked]to subrnit his [explanation ][for ][the propopd ][punishment ][of ][dismissal]from service. The [petitioner ][submitted ][his explanation on ][02'04' ][1999']However, dismissal [order ][was ][passed ][by ][the ][2nd ][respondent ][on]12.04.1999 against [which, ][the ][petitioner preferred ][an ][Appeal ][on]03.05.1999 but the same [was ][also rejected ][on ][07.06'1999' ][According]to the petitioner, [punishment ][of ][dismissal ][was ][imposed ][on ][the]petitioner without conducting [any enquiry ][/ ][following ][due process ][of]law. In view of the same, [the ][petitioner ][filed ][W.P.No ][12285 ][of ][2000]challenging his dismissal [f}om ][service.]

5. The writ petition was disposcd [ofTon ][30.09'2010, ][whereir.r ][this]Coun directed the respondents [to ][conduct ][an ][enquiry ][within ][3 ][months]from the date of receipt [of ][the ][said ][order. ][Ihe ][Hon'ble Coun ][also ][held]that as the order of dismissal [was ][quashed, ][the question ][of ][payment ][of]

back wages / arrears fiom t]"n,.,. t]"n,.,. rhe ,r..^,r..^fiom t]"n,.,. t]"n,.,. rhe ,r..^,r..^

wages arrears fiom t]"n,.,. t]"n,.,. rhe ,r..^date of disrnissal till the date offiom t]"n,.,. t]"n,.,. rhe ,r..^date of disrnissal till the date ofcompletion of enquiry shall also be consideredby the disciplinaryauthority on compretion t of the ru^ ,^*-urtsroeted "r departmental enquiry and dependingby the disciplinaryauthority on compretion t of the ru^ ,^*-urtsroeted "r departmental enquiry and dependingon its outcome. In compliance with the said direction of the Hon,bleHigh Court, the 2nd respondent appointed an enquiry officer andpresenting offtcer vide proceedings dt.,g.12.2010. The petitioner wasaddressed a notice dt.l0.12.2lll High Court, the 2nd respondent appointed an enquiry officer andpresenting offtcer vide proceedings dt.,g.12.2010. The petitioner wasaddressed a notice dt.l0.12.2lll by the enquiry officer directing himto be present on 20.12.2010. Such notices were also issued to thewitnesses who were the signatories to the alleged panchananra thatwas allegedly conducted earrier which was the basis rbr the earrierwas allegedly conducted earrier which was the basis rbr the earrierdismissal. The said notice dt. I0.12.2010 was also published in thenewspapers on 11.12.2010. I0.12.2010 was also published in thenewspapers on 11.12.2010. The enquiry officer had fixed the date ofenquiry as 20.12.2010 a,d articres or ['"},u.g. ]were issued to thepetitioner vide memo dt. 16. 12.20 l0 which were serwed on theenquiry as 20.12.2010 a,d articres or ['"},u.g. ]were issued to thepetitioner vide memo dt. 16. 12.20 l0 which were serwed on thepetitioner on 17.l2.2OlO. As the articles of charges werecommunicated to the petitioner after appointment of the enquiryofficer, the petitioner requested the authorities to postpone the enquiryfrom 20.12.2010 at least by two weeks so that the petitioner would bein a position to give his explanation. However, there was nocommunicated to the petitioner after appointment of the enquiryofficer, the petitioner requested the authorities to postpone the enquiryfrom 20.12.2010 at least by two weeks so that the petitioner would bein a position to give his explanation. However, there was nocommunication to the petitioner about postponement of the enquiryand therefole the petitioner attended the enquiry on 20.12.2010 andsubmitted a represer.)tation to the enquiry olficer stating that normallysubmitted a represer.)tation to the enquiry olficer stating that normallythe enquiry will be cor.rducted after recc-ipt o1- the explanation ol thedelinquent employee to the charge rnerno. He also submitted that thedelinquent employee to the charge rnerno. He also submitted that the documents [relied upon for proving ][the ][charges ][have ][not ][been supplied]to him [and therefore ][he ][had ][no ][opportunity ][to ][submit ][his ][list ][of]witnesses [or ][to ][engage ][a ][lawyer ][for ][presenting his ][case']

6. The enquiry [ofiicer vide ][his ][rnemo dt 21 12'2010 ][fumished ][a]Iist of documents [and ][directed ][the ][petitioner ][to ][submit ][his ][defence]witnesses [withir-r ][3 ][days ][and dectined the ][request ][of ][the petitioner ][to]a [lawyer. ][The ][petitioner ][submitted ][his ][explanation ][to ][the]engage charge memo vicle [letter ][dt.24.12 ][2010 denying ][all ][the ][charges]categorically. On [the next ][date ][of ][the ][enqr'riry, ][i ][e', on ][04'01 ]['201 ][1' ][the]petitioner's defence assistant [could not ][be ][present ][and ][the ][prosecution]witnesses were examined and the [enqtiry ][was ][conducted ][and]concluded on the very same day. Vide [proceedings ][dt.13.01.2011, ][the]enquiry report was communicated to the petitioner on 19.01.2011 andthe petitioner was directed to submit his representation within 10 daysfrom the date of receipt of the memo. The petitioner submitted hisobjections to the enquiry reporl on 29.01 .201I demonstrating as tohor.v the charges are not proved. However, the 2'd respon dent, videproceedings dt.17.02.201I dismissed the petitioner fiorn service,which was communicared ro the petitioner on 08.03.201 l. Thepetitior-rer preferre.d an Appeal to the I'L respondent on 30.05.20 I 1wl.rich was also rejecled, against which, this Writ petition is filed.

7. The grounds raised by the petitioner in this Writ petition are onthe following points:

./

(r) the clrarge ntcnro clt.03. i i .20 i0 was norserYed on theclrarge ntcnro clt.03. i i .20 i0 was norserYed on thepetitioner beloreappointing theenqulry ofiiceron08.12.2010 and it was served later on 17.12.2010 i e08.12.2010 and it was served later on 17.12.2010 i eafter the appointment of the enquiry officer and therefore,the whole procedure is contrary to CCA Rules and inthe whole procedure is contrary to CCA Rules and inviolation of the principies of natural .iustice.natural .iustice.

(2) the respondent society has not taken steps to serve the charge memo on the petitioner and therefore it is inviolation of the principles of natural justice.violation of the principles of natural justice.

(3) the enquiry conducted by the enquiry officer in theabsence of the defence assistant of the petitioner andconclr,rding the same on the'same da1, is also irr utrerviolation o1' tlte pr-inc:iples. ol natural justice as areasonable opporlunity was clenied to the petitioner.absence of the defence assistant of the petitioner andconclr,rding the same on the'same da1, is also irr utrerviolation o1' tlte pr-inc:iples. ol natural justice as areasonable opporlunity was clenied to the petitioner.

(4) the enquiry officer submitted his reporr on i3.01.2011

holding that the charges are proved and the disciplinaryauthority on the very same day i.e. on 13.01 .20 i 1fumished a copy of the enquiry officer,s report to thepetitioner agreeing with the report and asking thepetitioner to show cause as to why he should not beremoved lrorn service, which, according to the petitioner.,is clearly perverse and withour application of mind by thedisciplinary authority.authority on the very same day i.e. on 13.01 .20 i 1fumished a copy of the enquiry officer,s report to thepetitioner agreeing with the report and asking thepetitioner to show cause as to why he should not beremoved lrorn service, which, according to the petitioner.,is clearly perverse and withour application of mind by thedisciplinary authority.

(5) the respondent [had ][filed ][a ][caveat ][before the ][High ][Court]evenbeforedismissalorderwasservedonthepetitioner.It shows that [the ][disciplinary ][authority ][had ][predetermined]mind to dismiss the [petitioner ][from ][service ][which ][is]clearly an unfair [attitude ][and ][behaviour ][demonstrated ][by]evenbeforedismissalorderwasservedonthepetitioner.It shows that [the ][disciplinary ][authority ][had ][predetermined]mind to dismiss the [petitioner ][from ][service ][which ][is]clearly an unfair [attitude ][and ][behaviour ][demonstrated ][by]

him

(6) the appeal tiled b;' the petitiorrer was dismissed [in ][lintine]without any discussion on the grounds raised by thepetitioner and therefore it shows no application of mindwhatsoever by the appellate authority.without any discussion on the grounds raised by thepetitioner and therefore it shows no application of mindwhatsoever by the appellate authority.

(7) the allegation against the petitioner that he worked in aprivate college has not been proved and that the allegedunauthorised absence was on account of his ilt-health.private college has not been proved and that the allegedunauthorised absence was on account of his ilt-health.

8. While the leamed counsel lor the petitioner, Sri J. Sudheer,reiterated the submissions made in the aftldavit accompanying thewrit petition, the learned counsel for the 2nd respondent, Sri N. BhupalReddy, relied upon the contentions raised in the counter aflldavit.

9. In the counter affidavit, it is stated that the respondents havefollowed the due procedure laid down by law and have accordinglyconducted the enquiry and all the charges were proved against thepetitioner. It is submitted that by absenting himserf, the petitioner hasdeprive{quality education to the students and it is arso proved that he was engaged in teaching in private collegesTherefbre, according tothe avements in the counter alfrdavit. thepunishntent of removaifronr service is .jListifi ed.

10. Having regar.d to the rival contentions and the material olr record, I find that the issues before this Court are

(i) Whether theenqulry was conducted in accordance withlaw?;law?;

(ii) Whether the petitioner was guilty of unauthorised absence?;absence?;(iii)Whether the petitioner worked in a private r - --- college -"'^-6duringthe period olabsence?; and the period olabsence?; and (iu)Whether punishment of removal from service wasdisproporlionate to the charges levelled against him?disproporlionate to the charges levelled against him?

Issue [( ]i):

I l. As regards the first rssue about the validity of enquiry,proceedings is concerned, this Courl finds that against the earlierorder of removal from service, the petitioner had filed a Writ petition,whereby the removal order was set aside and the disciplinary authoritywhereby the removal order was set aside and the disciplinary authoritywas directed to conduct enquiry in accordance with law and thereafterproceed with the case. It is noticed that the enquiry officer wasappointed vide orderc d1.08.12.2010 and [notices ][were given ][for ][the]enquiry to the petitioner as well as the [witnesses ][vlde ][letters]dt.10.12.2010. It is also [noticed ][that ][the ][charge ][memo, ][which ][is ][dated]13.1 1 .201 0, was sent to the [petitioner ][twice to ][the ][address ][given ][by]him in the writ petition [as ][directed ][by ][the ][Hon'ble ][Court ][and ][the ][same]proceed with the case. It is noticed that the enquiry officer wasappointed vide orderc d1.08.12.2010 and [notices ][were given ][for ][the]enquiry to the petitioner as well as the [witnesses ][vlde ][letters]dt.10.12.2010. It is also [noticed ][that ][the ][charge ][memo, ][which ][is ][dated]13.1 1 .201 0, was sent to the [petitioner ][twice to ][the ][address ][given ][by]him in the writ petition [as ][directed ][by ][the ][Hon'ble ][Court ][and ][the ][same]

r

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were returned unserved [and ][therefore, ][the respondents ][had ][also taken]out substituted service by [publishing ][the ][sat-ne ][in ][the local ][newspaper']-therefbre, it is a clear case of avoidance ol' the notices by thepetitioner and there is no t'ault ol the respondents in not being able toserve the charge memo on the petitioner as directed by the Hon'bleHigh Court before appointing the enquiry officer as alleged by thewrit petitioner. The charge memo was issued prior to appointment ofthe enquiry officer and was served on the petitioner subsequently onlydue to the unavailability of the petitioner at the address given in thewrit Petition. Further, since the petitioner could not be served withthe charge memo as well as the notice for hearing of the case, therespondents had to issue the notice through the local newspaper.Further, it is noticed that the petitioner has also participated in theenquiry proceedings and submitted his explanation. .lherefore, I am ofthe view that the enquiry proceedings were conducted in accordancewith law and lssue (i) is thcrt fore ansu,erecl against tltc- pctitioner.

lssue ( ii t:

12. As regards the findings of the enquiry oftlcer as to whether thepetitioner was guilty of unauthorised absence of 24g days within acontinuous period from 03.11.1997 to 29.01.1999on the pretext of ill_health as alleged in the charge sheet, it is noticed that the enquiryofficer has examined the relevant persons during the course ofenquiryand has arrived at the finding that the petitioner was absentr" unauthorisedly, i.e., without any sanction of leave. .fhe enquiry officer

examined the principal of the college who deposed that he granted thepetitioner a, eligibre casuar leave' special casuar reave and earnedIeave as per his request ancl alter. exhaLrsting ail leaves also, thepetitioner did not attend and hence fbr such period, he was marked asunauthorisedly absent. The petitioner cross_examined the principalThe attendance registers were also exarrined by the enquiry officer.other witnesses exatrined by the enquiry olficer also confinned theabove version of the principal. The enquiry officer also examined theleave letters and found that the petitioner had mentioned medicalgrounds only in his leave application dt.2g.l2.l9g7 and also that thepetitioner left the headquarters without taking prior permission of thePrincipal and much against the Leave Rules. Though the petitioner,scounsel tried to rebut these findings of th! enqriry officer, this Courlfinds that no evidence has been produced before this Court to proveotherwise. Thus, the linding ol the enquiry officer thar the petitionerwas guilty of unar-rthorised absence is not interfered with. Thus. thisissue is also answered against the petitioner.

Issue (iii)

f 3. As regards the finding of the enquiry officer that the petitior.rerhas worked in a private college during the period of absence, thoughthere is reference to the correspondence between the RegionalInspection Officer, Board of Intermediate Education, Karimnagar andAlphores Junior College (Girls), the private college in which theInspection Officer, Board of Intermediate Education, Karimnagar andAlphores Junior College (Girls), the private college in which thepetitioner is alleged to have worked, this Courl hnds that there is no evidence forthcoming [therefrom that the ][petitioner ][was ][working ][with]the said college [during the ][relevant ][period ol' ][r-rnauthorised ][absence.]The details given are of [the ][members ][of ][the ][management committee]of the said college and the name of [the ][petitioner ][does ][not ][find ][place]in anv o1' the documents so 1lled. ['l-herc'tbre. ]the cl'rarge that thepelitioner rvas rvorl<ir-rg in ir pril'ate college dLrring the period ofunalrthorised absence is held as not proved. The findings are all on thebasis of the statements given by the employees of the respondentcollege and there is no independent evidence in support of suchfindings. This issue is therefore answered in favour ofthe petitioner.

Issue (iv):

t

14. As regards the issue as to whether the punishment of removalfrom service was disproportionate to the charges ievelled against him,this clourt linds that the petitioner was guilty or unauthorised absenceand the respondent organisation, being an eclucatior-ral institution, hasto work with disciplined stalf and the petitioner was reqr-rired to beresiding in the town in which the college was located. By being absentfrom duties unauthorisedly tbr a period of 2zlg days continuously i.e.,a period of nearly one academic year, the education of the studentswas getting affected and therefore he was guilty of misconduct.However, this Court is of the opinion that the punishment of removalfrom service is excessive. In such circumstances, the proper course ofaction would be to remand the issue for reconsideration of theauthorities. But since nearly 20 years have lapsed since the date of t

t

removal, remanding the case would not be proper. fh"."fo.., tfri"Court deems it fit and proper to modifl, the order of removal fromservice to reinstatement into service without back wages. However,Court deems it fit and proper to modifl, the order of removal fromservice to reinstatement into service without back wages. However,the period frorn the date or rerrovai to the date of reinstatement shallshallbe treated as corltinuity of service on11, lor the purposes of retirementbeneflts.beneflts.

15. The Wr.it petition ts accordirrglv partl5, allowed. No order as toCOSTS

16. Pending miscellaneous petitions, if any, in this Writ petitionpetitions, if any, in this Writ petition shall stand closed."'"*-"*<

,rRuE copy//, [oS3,tI^r^i+r#_tt3rRirJ]SECTION IIiICER

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3. One CC to SRI J. SUDHEER, Advocate tOpUCl

4. One CC to SRt K. DURGA PRASAD, Advocate tOpUCl

5. One CC to SRI N. BHUPAL REDDY, Advocate tOpUClREDDY, Advocate tOpUCl

6. Two CD Copies.

7. One Spare Copy.

N/P

HIGH [COURT]

DATED:31 [11212021]

ORDERWP.No.3110 [of ][2012]

PARTLY ALLOWING THE WRIT PETITIONWITHOUT COSTS

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