Ithagani Krishna vs State Of Telangana

In this writ petition, the petitioner is seeking a writ of certiorari calling for the records pertaining to the impugned proceedings vide C.No.10/OE/A6-2/2015, D.O.No.824/2019, dated 06.09.2019, removing the petitioner from service and also confirmation of the impugned proceedings issued by respondents No.1, 3, 4 & 5 without verifying the records of the petitioner, as illegal, arbitrary, unconstitutional and as nothing but misuse of their official powers, which is contrary to the Service Rules and consequently to set aside the orders and to direct the respondents to re-instate the petitioner into service and to pass such other order or orders in the interest of justice.

Brief facts leading to the filing of the present writ petition are that the petitioner was appointed as AR Constable on 04.11.2009 at Nalgonda Headquarter and thereafter, the petitioner completed his probation and was declared as such on 14.04.2012 and the same was confirmed through Proceedings dated 20.07.2012 along with nine others. The petitioner’s name was placed at Serial No.3, PC-252. While the petitioner was in service, the petitioner allegedly got sick and filed the casual leave application on 06.03.2015 to 09.03.2015 before the respondents and thereafter, medical leave was extended from 09.03.2015 to 11.04.2015. The petitioner submitted another request letter before the respondents seeking extension of medical leave on 11.04.2015 through registered post acknowledgment due, but the respondent No.6 passed desertion order vide proceedings dated 27.05.2015 and that in the said order, it was mentioned that if the petitioner has any intention to join the duty, he should report before the Superintendent of Police, Nalgonda, within a period of one month from the date of receipt of the order or within two months from the date of desertion whichever is later. It is submitted that the deserter order was not served on the petitioner and due to non-recovery of health, the petitioner extended medical leave from 11.04.2015 to 22.11.2016 through registered post on 17.04.2015 along with the postal receipt No.A RN038902702IN. However, since the petitioner was declared as a deserter with effect from 11.04.2015, the medical leave was not granted and respondent No.6 was appointed as an Inquiry Officer vide Proceedings dated 31.10.2015. The petitioner therefore, appeared personally before the respondent No.6 on 23.11.2016 on completion of his medical leave and the respondent No.6 allowed the petitioner to join the duty vide Proceedings D.O.No.2332/2016, dated 29.11.2016 pending disciplinary proceedings against the petitioner. Subsequently, the petitioner filed a detailed representation before the respondent No.6 on 14.06.2019 seeking setting aside of the desertion order. However, the respondent No.6 passed the order of removal from service vide Proceedings dated 06.09.2019 and the desertion period from 11.04.2015 to 28.11.2016 was treated as leave without pay.

Aggrieved by the same, the petitioner filed an appeal on 30.09.2019 before the respondent No.5, but the same was rejected and thereafter, he preferred an appeal before the respondent No.3, who also confirmed the order of removal from service. The petitioner has filed a review petition under Section 41 of TCS CCA Rules, 1991 before the respondent No.1 on 09.07.2021 and the same was also rejected vide orders dated 12.07.2022 against which, the present writ petition has been filed.

Learned counsel for the petitioner, while reiterating the submissions made in the writ petition stated that the petitioner has submitted medical leave application through registered post and thereafter on 17.04.2015, but they were not considered and the petitioner was declared as deserter from 11.04.2015 itself and therefore, the period was wrongfully calculated and treated as unauthorized absent. It is submitted that the petitioner hails from a poor family and he is the only bread winner of his family and therefore, his case should be considered for reinstatement by setting aside the order of removal from service. Learned counsel for the petitioner further relied upon the various orders of the Government as well as the respondent No.3 wherein under similar circumstances, in the cases of the constables who were removed from service, their appointments were reviewed and punishments were modified to the postponement of increments for two years with effect on their future increments and pension or such other punishments and the desertion period was treated as leave without pay and out of the employment period on the principle of ‘no work and no pay’. It is submitted that the similar treatment may be given to the petitioner as well, but instead the authorities have only confirmed the order of removal from service.

Learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in the case of Krushnakant B.Parmar Vs. Union of India and Another (2012) 3 SCC 178, for the proposition that unauthorized absence from duty during three consecutive periods, if it is not willful, it cannot be treated as guilty of misconduct.

Learned Special Government Pleader for Home relied upon the averments made in the counter affidavit which is filed in support of the punishment order of removal from service. It is submitted that in the oral inquiry on return of the petitioner to duty on 23.11.2016 the petitioner had stated that he was absented for duties in order to prepare for Sub-Inspector of Police examination, whereas in the application, he has stated that he was sick and therefore, supported medical certificates. Therefore, the officers have come to the conclusion that the petitioner has not absented to duties from 11.04.2015 to 22.11.2016 on medical grounds and also that the petitioner failed to follow the prescribed procedure of going on sick leave as defined in order No.643(3) of TSPM Part-I, Volume-II. However, there are no averments or reply to the contentions of the petitioner that the other similarly placed candidates were reinstated into service by modifying their punishments, except to state that the petitioner cannot compare with another employee for the purpose of punishment and that each case depends upon on its facts and the petitioner though absented from duty for preparation of SI exam, has intentionally tried to mislead by producing fake medical certificates and therefore, his removal of service is justified.

Having regard to the rival contentions and the material on record, this Court finds that admittedly, the petitioner was absent to duties from 11.04.2015 to 22.11.2016 though the petitioner claims to have submitted his medical leave applications through registered post acknowledgment due and the respondents have already declared the petitioner as a deserter vide orders dated 27.05.2015 w.e.f. 11.04.2015. Though the petitioner has given the postal receipt number for submission of the medical leave applications, the respondents have not replied to the same in their counter affidavit, except stating that the petitioner was declared as deserter w.e.f. 11.04.2015. There is also no denial of subsequent medical leave applications submitted by the petitioner. The only contention is that the petitioner has not followed the sick procedure. Therefore, it appears that the authorities have not considered the medical certificates of the petitioner in proper prospective and have rejected the contentions of the petitioner and have imposed the punishment of removal from service. Even the appellate authorities have not considered the contentions of the petitioner in proper prospective. Further it is also noticed that in similar circumstances in the case of other employees, the punishment of removal from service has been modified to other punishment such as postponement of increments. As per the judgment of the Hon’ble Supreme Court in the case of Krushnakant B.Parmar (cited supra), unless and until the absence is willful, it cannot be treated as willful absence or unauthorized absence and the punishment of removal from service cannot be imposed in such petitions.

In view of the same, this Court is inclined to allow the writ petition filed by the petitioner and set aside the orders of the respondents No.1, 3, 4 & 5 and direct the respondents to reinstate the petitioner into service. In such circumstances, the usual order would be to set aside the punishment order and remand the matter to the lower authorities for reconsideration of his case for imposition of punishment.

In view thereof, this Court is inclined to set aside the matter to the file of the respondent No.6 to consider the case of the petitioner for imposition of punishment lesser than the punishment of removal from service and re-instate the petitioner into service. The petitioner shall however, not claim any backwages from the date of removal of service till the date of re-instatement. The same shall however be treated as on duty only for the purpose of pension and pensionary benefits only.

10 Accordingly, this writ petition is allowed. There shall be no order as to costs.

Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.