WP/14339/1993 of Y.R.K. Murthy, Vs Registrar on 30 December 2004

ORAL ORDER:

The petitioner, a lecturer in Chemical Engineering, appointed on 25-8-1959 andsubsequently promoted to the post of Assistant Professor in MechanicalEngineering, has questioned the order dated 24-2-1993 passed by the JawaharlalNehru Technological University and communicated to the petitioner through itsRegistrar. By the said order, the petitioner has been dismissed from the service onthe establishment of two charges levelled against him. The petitioner hasquestioned the said order of dismissal from service in the instant writ petition. Thetwo charges framed against the petitioner are as under:

“Charge No.I

Sri Y.R.K. Murthy has reported for duty as Assistant Professor in MechanicalEngineering on 25-11-1988 at JNTU College of Engineering, Anantapur. He appliedfor leave from 30-11-1988 for four days and not reported for duty thereafter. Thus, heabsconded from duty with effect from 4-12-1988.

Charge No.II

Sri Y.R.K.Murthy has not changed his habit of absconding from duty and thusmisused the chance given to him for completing the balance period required to goon voluntary retirement and thus he behaved in a very irresponsible manner whichwarrants deterrent punishment.”

A few background facts may be noticed before dealing with the rival contentions.The petitioner proceeded on leave with effect from 30-10-1980 without obtaining anysanction for such leave from the competent authority and thereafter did not join duty.Thereupon, a memo dated 27-5-1981 was issued to the petitioner asking him toshow cause why action should not be taken for terminating his services. In responsethereto, the petitioner requested permission to go on voluntary retirement. The saidrequest of the petitioner was referred to the Director of Local Fund, who opined thatthe petitioner is not entitled for voluntary retirement as he did not put in required length of qualifying service. He was allowed to join in service. The petitioner joinedin duty on 25-11-1988. The Principal of the institution in question reported that evenafter joining, the petitioner has not been regular. It was thereupon resolved by theExecutive Council that continuance of the petitioner is not in academic interest. Thepetitioner was placed under suspension pending enquiry. Enquiry Officer wasappointed.

Arguments

The Enquiry Officer submitted his report intimating that no reply has been received,to the charges framed, from the petitioner. It was further reported that the petitionerhas been absent from duty from 4-12-1988. The report is dated 15-5-1989. TheEnquiry Officer recommended dismissal from service. A show cause notice wasissued to the petitioner to show cause why he should not be removed from serviceunder A.P.C.S. (CCA) Rules, 1963. No explanation was furnished to the said showcause notice. The matter was thereupon placed before the Board of Managementand the Board, as can be seen from the impugned order, resolved to issue ordersdismissing the petitioner from the service of the University. The impugned order isthus one of dismissal from service as communicated to the petitioner.

Learned counsel for the petitioner submitted that no finding or conclusions havebeen arrived at by the Enquiry Officer on the charges framed. A contention was alsoraised that the petitioner submitted a representation before the Enquiry Officer on 28-5-1989, but the same has not been considered. There is nothing on record to satisfythe plea of the petitioner with regard to submitting his written explanation on 28-5-1989. Except the oral affirmation that such reply in writing was furnished on 28-5-1989, there is nothing in the record to establish that any such representation wasgiven. As already noticed, the Enquiry Officer found the charges established on theground that there was no response from the petitioner denying the charges, and thatthe petitioner had continued to remain absent. The second contention advanced onbehalf of the petitioner was that the final show cause notice said to have been sentby Registered Post Ack. Due was not received by the petitioner. There is nosubstance in the said submission. As can be seen from the impugned order, theshow cause notice was issued by Registered Post Ack.Due and the Postalauthorities confirmed its service.

It is now well settled that in exercise of writ jurisdiction under Article 226 of theConstitution of India, this Court exercises power of judicial review. It does not act as a Court of appeal. It is concerned with the decision making process. Judged in thelight of the said parameters, it cannot be said that the enquiry report is vitiated onany grounds or that the charges have not been established.

The only question that remains for consideration is whether the punishment inflictedon the petitioner on the establishment of the said charges is disproportionate.Keeping in view the background facts of the case as also the charges foundestablished, it can be seen that the petitioner had been continuously absent over along period of time. In the circumstances, there is little scope for this Court tointerfere with the punishment inflicted on the petitioner on the establishment of theaforesaid charges.

However, it is seen that in the show cause notice issued to the petitioner, thepunishment proposed was “why he should not be removed from service underA.P.C.S. (CCA) Rules, 1963.” However, as there was no reply or explanationsubmitted by the petitioner to the said show cause notice, the impugned order waspassed whereby the petitioner has been “dismissed from the service of theUniversity”. Under the First Statutes 33, the penalties that can be imposed on anymember of the service of the University are enumerated. Under clause (6), removalfrom service and under clause (7), dismissal from service are the penalties amongstothers that can be imposed.

As, in the case on hand, the show cause notice proposed removal from service, I amof the view that the order of dismissal was not warranted. If at all, the petitioner couldhave been removed from service on the establishment of the aforesaid charges.Accordingly, the punishment imposed on the petitioner is modified from dismissalfrom service to removal from service.

With the modification in the punishment as above, the writ petition is allowed in part.In the facts and circumstances of the case, there shall be no order as to costs.

____________________________

(M.H.S.ANSARI, J.)

ARS

That Rule Nisi has been made absolute as above.

Witness the Honourable Sri Devinder Gupta, the Chief Justice on this the 30[th] day ofDecember, Two Thousand and Four.

REGISTRAR.

To

1. The Registrar, Jawaharlal Nehru Technological University, Masab tank, Hyderabad.

2. The Executive Council, Jawaharlal Nehru Technological University, Masab tank, Hyderabad.

3. The Principal, Jawaharlal Nehru Technological University Engineering College,Kukatpally, Hyderabad.

4. The Principal, Jawaharlal Nehru Technological University Engineering College,Anantapur District.

5. Two CD copies.