V.Govardhan Reddy v. proper in the circumstances of the case

ORDER Heard Sri Ch. Ganesh, learned counsel appearing on behalf of the petitioner, learned Assistant Government Pleader for Services-f, appearing on behalf of the respondent Nos.1, 3, 5,6 and 7 and Sri Puskuru Kishore Rao, learned Standing Counsel for ZPP, MPP & Gram Panchayat, appearing on behalf of respondent No.2.

2. The oetitioner aooroached the Court seekino oraver as under: "...to issue an order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the 3'd respondent in issuing impugned Proc. Rc.No. P212492/2019, dated 21-01-2020, in dis-en9a9ing the services of the petitioner to accommodate the 6th respondent who is the son of the house mate of the 5th respondent after putting a decade service by the petitioner without his knowledge any notice, conducting any enquiry on their own and not sought any explanation to defend the petitioner himself to any charges, which were not communicated to the petitioner or ex-party enquiry report till date amounts, violation of enquiry procedure and principle laid by the Hon'ble Supreme Court in the case of Hari Ram Maurya Verses Union of India and others in Civil Appeal No. 5523 of 2005 decided on 5'h September, 2005 2 SN, J VrP \o 21943 of2l)l{l and the same was reported in (2006) 9 Supre re Court Cases 167, and in the case of Jagdish Mitter V i Union of India, in Civil Appeal No.718 of 1962 dated 2).1)9-1963, reported in AIR 1964 Supreme Court 449 ( 1 ) as hrghly illegal, arbitrary, unjust, unfair. and prays to irrect the respondents herein to declare the appointmr: rt of the 6th respondent as totally illegal, against the rul,5;, with a further direction to restore the appointment of th: petitioner by granting all consequential monetary bene f ts w.e.f., 17-O9- 2019, to till date by applying the orders )assed by this Hon'ble Court in Writ Petition No. 5998 of 2 ( 09, dated 23-3-2009, and pass.... "

3. The case of the petitioner in brief, is that the petitioner was initially appointed as Electrician in the ye; t 2017. It is further the case of the petitioner that the 5th resp( ndent without giving any notice or memo removed the petition,t' from service on the ground of absent from duty and app( inted the 6th respondent in place of the petitioner. Thereafter, the petitioner submitted a detailed representation dated 2_.2 tO.2019 and

19.11.2019 to 3'd and 4th respondent requesting ,, ) reinstate the petitioner into service as electrician on ( ( ntract basis. Subseqeuntly 3'd respondent directed the 7th espondent to conduct enquiry into the issue of termlnation of l etitioner From service. The 7tr' respondent - Mandal pan: rayat Officer, c) J SN, J wt' Ntr.2191l of 2020 Mudigonda conducted an eye-wash enquiry without the knowledge of the petitioner and without giving reasonable to the 3'd opportunity to the petitioner and submitted -report respondent. Thereafter the 3'd respondent vide proceedings dated 2l.Ot.2O2O removed the petitioner from service' Aggrieved by the impugned proc. vide R'C' No'P2/2492/2019' dated 21.01.2020 of the 3.d respondent, the petitioner filed the present Writ Petition. 4 PERUSED T E REC RD (A) Th rmou ned order d ted 2 -o1.20 20 lss ed bv the District Panc avt Offi cer, Kham mam vide .c. N 2 d n "Sub: Mudigonda Mandal - An enquiry has been conducted with regards the mafter of termination of Sri Vachepalli Govardhana Retay, ftectrician, staff of the Gram Panchayat, Gandhasiri' Ordeis issued terminating him from his duties for the reason of dereliction of his duties - Reg. Ref:- 1. Applications diteO rs.Og.Z019 and 22 10'2019 of sri Valhepalli'6ovardhana Reddy, Electrician, Gram Panchayat' Gandhasiri, Mudigonda Mandal. z. inis 5ffice letter in R.c.No.P2l249212019, dated 3. Report in R.C.No.A4l102 l2|l9, dated O7'12'2O19 of 2t.It.2079, the Mandal Panchayat Officer, Mudigonda' In the reference ls cited above, wherein Sri Vachepalli Goru.Jhunu Reddy, Gandhasiri Gram Panchayat, Mudigonda Mandal submitted that he worked as Electrician with the Gram Panchayat since 4 SN. J Wl' No.2l94l ot2020 2011and at first he was paid a salary ofRs.500/- per r lonth and then he was paid the salary of Rs.1,000/- per month for tf 3 last 3 years. Further it is submitted by him that he rendered his sr: l,ices till today with the Gram Panchayat without having any remark:,, But the newly elected body of the Gram Panchayat paid his arrear, of his salary relating to some of the months to the tune of Rs.12,rl )0/- by way of cheque and instructed him not to attend to his duties Uith effect from 17.O9.2O19 and further it is submitted by him t rat the Gram Panchayat indebted to him an amount of Rs.25,000/- t( wards salaries. And it is submitted by him that it is unlawful to termir i te him without assigning any reason. At present the Gram Panchayal -ecruited some other person, for the reason that the present salary t,r Electrician is Rs.8,500/- by terminating him from his services. Hencr) it is requested by him to reinstate him in his duties and requested or payment of balance arrears of his salaries. In this regards, orders issued to the Mandal Pet chayat Officer, Mudigonda Mandal in the reference 2nd cited abovr: wherein it is Instructed to conduct a thorough enquiry and for subrr ssion of Action oriented Report. Basing on such orders, the Mandal pa-rchayat Officer submitted his Report cited under the above 3'd referenr:, In the said Report it is submitted that Sri Vache I rlli Govardhana Reddy was paid an amount of Rs.61,000 /- from the dir e of his joining to duty i.e. from September, 2013 to June. 2019 ar r submitted his Report by enclosrng a statement of such payments by ,r ty of cheques. At the time of enquiry, by perusal of Gram pancr )yat Cash Book and his Personal Pass Book, it is noticed that the am: lnt required to be paid towards salaries to Sri Vachepalli Govir dhana Reddy, further it is Electrician has been paid by the Panchayat Secret€r7, informed that the said employee was terminated f om his duties throuqh a solutaon of the Gram Panchavat Grl rernin Bodv. for the reason that the said emotoyee was undef dereli ion of lri< drrf i hic drrfia. i without prior caandiner intimati on to the Panch vat Secreta rv or Saroan e 1 of the Gram Panch avat and recruitin q othe ! person in the position. That the said Resolution has been enclose I by the Mandal Panchayat Officer, Mudigonda Mandal to his Enquiry Re:; ort. lution oa f-aa f On perusal of the above matter, accordingr to the Report of the Mandal Panchayat Officer, Mudigonda Mandal, it is concluded that the said employee has been term I rated from his duties for the reason of his not attending to his dr ties properly. Hence, intimated to you. I \ 5 sN. I WP No 2-1941 of 2020 Sd./-xxx District PanchaYat Officer, Khammam. Encl: To The Applicant - Sri Vachepalli Govardhana Reddy' S/o. rriarayana Reddy, H.No'3-84 dhasiri Village' Mudigonda Mandal. (B) u r re DOndent and in u lar Dara Nos .5, 8 and 9 extracted hereunder "5. It is submitted that as per the records the petitioner worked as a temporary contingent part time electrician from ,0i;-;" June, jorg for monthly consolidated payment of ei.!oo7- initi;lly and enhanced to Rs'1.000/- subsequentlv' iilt-fuft" and denied that the contention of the petitioner that the petltioner was appointed in the year' 2011' 8. It is submitted that the petitioner as per the instructions oi tn" pun.nuyat Committee the petitioner used to attend his Iroir,- in airnlen condition and if he questioned used to rnirU"nuu" with the Panchayat Committee' therefore Gram ;;il;;;a committee asked him to not to attend the works i.", ii.oo.zo19 thereafter since there was necessary for street lights the 6th respondent was appointed ,"i"tri"l"g tirie contingent worker i'e', electrician to maintain ;;;; ine'street lights by way of resolution dated 27 '06'2019 ' ii su-bmitted that it appears thereafter the^petitioner i.- ]rorou.nJin" 3'd respondent District Panchayat Officer and ,riJ oliri.t Panchayat officer after causing enquiry with the ilunaul- pun.nuvui officer issued the letter vide Rc. No. P2l349212019 dated 2l'Ol'2020'" -it "f -M 6 SN. J WP No 2l9Jl oi2020

5. The learned counsel aoDearino c,r I behalf of the petitaoner mainlv puts forth the following_ iubmissions: (a) The report of the Mandal Panc- lyat Officer, who 'the petitioner without giving an opportunity of personal hearing :,1 the petitioner, conducted enquiry behind the back of without giving any notice to the petitioner, t- ad been the basis for issuing the impugned proceedings dated 21.01.2020 of the 3'd respondent terminating the services of the petitioner u n ila tera lly. (b) The impugned proceedings referre r to resolutions of a Gram Panchayat indicating recruitment of ot )er person in place of petitioner and a decision taken to termir i te the services of the petitioner by the Gram Panchayat gov€ I .ling Body for the reason that the petitioner was under derelictic n of duties by way of absconding from petitioner's duties without prior intimation to the Panchayat Secretary of the Gram Panchar,, rt. (c) The petitioner however was not pU on any notice on the said allegations levelled against the petitic ner at any point of time, (d) rhe enquiry conducted behind the back of the petitioner is vitiated, and t\ l SN, J wl' No.2l94l ol 2010 (e) The order impugned of 3rd respondent is based on the Mandal Panchayat Officer reports and resolutions of the Gram Panchayat governing Body which were submitted behind the back of the petitioner and the same is illegal and unsustainable and therefore, the petitioner is entitled for the relief as prayed for, in the present Writ Petition' 6 Th learn d Sta ndinq Counselaooea nnq on beha lf of n nt d s 2 I n a t h I, (a) The District Panchayat Officer enquiry based on the enquiry report of the Mandal Panchayat Officer enquiry (issued vide the impugned letter dated 21.01'2020) (b) The petitioner used to attend the petitioner's work in a drunken condition and when the petitioner is questioned the petitioner misbehaved with the Panchayat Committee' (c) The Gram Panchayat Committee directed the petitioner nottoattendtheworksfrom2T.06.20lgandhenceitisproved that the petitioner indulged in dereliction of petitioner's duties' -\ ,H SN. J wP No 23941ot2020 (d) The order impugned passed is le 3 tl and sustainable and hence the petitioner is not entitled for c r y relief as prayed for, in the present writ petition. DISCUSSION AND CO NCLUSION

7. A bare perusal of the order impugne(t dated 2t.Ol.zOZO clearly indicates that specific directions had ,,een issued to the Mandal panchayat Officer to conduct an en(l,riry and based on the specific instructions issued by the off i e of the District Panchayat Officer, Khammam, Mandal r tnchayat Officer, Mudigonda submitted a report dated 07.12.2(1 9. A bare perusal of the order impugned dated 2t.OL.2O2( of the District Panchayat Officer, Khammam indicates that :he petitioner had been terminated from petitioner's duties thrc r gh a resolution of the Gram Panchayat governing Body for ilr I reason that the petitioner was under dereliction oF petitioner, duties by way of absconding from petitioner's duties witholrt )rior intimation to the Panchayat Secretary or Sarpanch of th : Gram panchayat and resolution had been passed regardil l appointment of another person in the position of the petitio rer. Curiously the reasons indicated in the order dated 21.01.;020 issued by the I g sN.l WP No.21943 of2020 Dlstrict Panchayat Officer, Khammam did not reflect in the counter affidavit filed on behalf of the 2nd respondent and the reasons indicated at paragraph 8 of the counter affid-avit, filed on behalf of the 2nd respondent is that the petitioner was in a drunken condition while attending the petitioner's duties and when the petitioner was questioned the same, the petitioner used to misbehave with the Panchayat Committee and therefore, the Gram Panchayat Committee had asked the petitioner not to attend the petitioner's works trom 27'06'2019' This Court opines that the reasons mentioned in the 8. order impugned dated 2L.Ol.2O2O by the District Panchayat Officer, Khammam terminating the petitioner unilaterally from petitioner'sdutiesforthereasonofderelictionofpetitloner's duties and the reasons given in the said order impugned that the petitioner absconded from the petitioner's duties without prior intimation to the Panchayat Secretary or Sarpanch is totally contrary to the reasons stated in the counter affidavit at paragraph No.8. Be that as it may, admittedly as borne on record, even as per the order impugned dated 21'01'2020, the petitioner had not been provlded an opportunity of personal hearing nor petitioner had been put on notice prior to framing .'.!tr l0 SN. J wP No.23941of2020 the charges for terminating the services of th= petitioner though there is a clear admission in the counter affidavit that the petitioner worked as a temporary contingent l lrt time Electrician from 2Ol4 to June, 2019 on a monthly :alary payment of Rs.500/- initially and subsequently enhanced o Rs.1000/-.

9. This Court opines that the action of the espondents herein is not only vindictive but also mala fide and ir clear violation of principles of natural justice. The Judgment c I the Apex Court in Hari Ram Maurva Vs. Union of India a I d others in Civil Appeal No.5523 of 2OO5, dated O5.O9. 2 0O5, reoorted in (2OO5) 9 Suoreme Court Cases 157 helj that even if the appellant is a temporary employee, the s:rvices cannot be terminated without holding an enquiry and t rereafter, acting in accorda nce to law. i l t I I I I

10. The Judqment of the Aoex Court in . aodish Mitter Vs. of In !a and others, dated 2O-O9 . .963, renorted in Union d 1964 Law Suit (SC) 449(Ll. at Dara N E.9 observed as u nder: "9. It is also now settled that the protecti<,r of Art. 311 can be invoked not only by permanent public s r rvantsr but also by public servants who are employed as terl )orary servants, SN- J WP No.21943 of 2020 or probationers, (vide Parshottam Lal Dhingra's case. 1958 SCR 828: (AIR 1958 SC 36)) (p. 858 (of SCR): (at p.48 of AIR)) and so, there can be no difficulty in holding that iF a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can legitimately invoke the protection of Art. 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Art. 311(2) have not been complied with. In other words. a temporary public servant or a probationer cannot be dismissed or removed from service without affording him the protection guaranteed by Art. 3tt(2)."

11. The Apex Court Judoment dated 15.O2.2O12 reoorted in 2OL2 SCC in 'KRUSHNAKANTH B. PARMAR v UNION OF INDIA AND ANOTHER" iN O rticular Dara Nos. 16 to 25 observed as under

16. The question 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 whether absence is willful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.

18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which I t2 SN. ] WP No 21941 of2020 an employee may abstain from duty, ir :luding compelling circumstances beyond his control like illness, acc ( ent, hospita lisation, etc., but in such case the employee cannot be hC J guilty of failure of devotion to duty or behaviour unbecoming of a G( \ ernment servant.

19. In a Departmental proceeding, if alleg I ion of unauthorised absence from duty is made, the disciplinary au lority is required to prove that the absence is wilful. in absence c' such finding, the absence will not amount to misconduct.

20. In the present case the Inquiry Offic,: on appreciation of evidence though held that the appellant was ur:uthorisedly absent from duty but failed to hold the absence is wi ul; the disciplinary authority as also the Appellate Authority, failed tc lppreciate the same and wrongly held the appellant guilty.

21. The question relating to jurisdiction ol .he Court in judicial review in a Departmental proceeding fell for cons deration before this Court in M.B. Bulani vs. Union of India and other: eported in (2006) 5 SCC 88 wherein this Court held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, leing quasi- criminal in nature, there should be some evidence t: prove the charge. Although the charges in a departmental sroceeding are not required to be proved like a criminal t ial i.e. beyond all reasonable doubt, we cannot lose sight ( f the fact that the enquiry officer performs a quasi-judicial Llnction, who upon analysing the documents must arrive at a r:nclusion that there had been a preponderance of probability t, prove the charges on the basis of materials on record. While Joing so, he cannot take into consideration any irrelevant fact '1e cannot refuse to consider the relevant facts. He cannot shiF he burden of proof. He cannot reject the relevant testimony of t le witnesses only on the basis of surmises and conjectures. Hr: cannot enquire into the allegations with which the delinquent fficer had not been charged with."

22. In the oresent case. the disciplinarl authoritv failed to pfoyg that the absence from duw was will! l. no such findino has. been oiven bv the Inouiry Officer - or the Aopelljte Authority. Thouoh the apoellant had taken_ r specific defence that he was prevented from attendanq - duty by Shri p. Venkat swarlu. DcIo- Palanou r who orevent: dh m to sion the rouoht on 1 ecord 11 defence attendance reqaster and also h l3 SN, J WP No.2l94l of 2020 n 5 f nc h P w t Ah I 9 Se tember, 1 95, tq ored and on the basis tc. b tsu hde ence and evide ce an surm rses the of irrelev nt fa n u

23. Mr. P. Venkateswarlu, DCIO, Palanpur' who was the complainant and against whom appellant alleged bias refused to .ppJ"i U"f"." the Iriquiry officer in spite of service of summons' Two olner witnesses, Shri Jivrani and Shri L'N' Thakkar made no statement ugui"ti tn" appellant, and one of them stated that he had no [io*f"ag" about absence of the appellant' Ignoring the aforesaid ;;id;"; on the basis of surmises and conjectures' the Inquiry officer held the charge Proved.

24.ThoughtheaforesaidfactsnoticedbytheAppellate Authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge' dismissed the app"eal with following uncalled for observation: "The appellant even avoided the basic training required for the job and astel':nO Ahmedabad to send all the training papers for his i;;"i;; at IB Training School, Shivpuri (Madhva Pradesh) to his i"tiO",i.. at Ahmedabad. 'An untrained officer is of no worth to the department'. "

25. In the result, the appeal is allowed'--The impugned orders of dismisial fassea Uy disciplinaiy authority'. affirmed bv the Appellate nrin..itv;' Central Administrative Tribunal and High Court are set aside. The appellant standl ieinstated' Taking into consideration the ih;'aharged offrcLr has suffered a lot since the proceeding f".t;;i ;;; ;;;;; in 1996- for absence from dutv for a certain period' we are authority for any noi remitting the proceeding to the disciplinary Further, keepirig in view the fact th.at the appellant has_ i*in"i that the appellant be paid 50o/o of not worked for a long time we tne back wages but there shall be no order as to costs' "iii"". -direct , L2. Th es ha fair n e It f nd n n o e .jM t l4 \ SN. J \VI' No 21941 of2020 after issuino charoe memo to the Detitic ner after askinq the petitioner to submit exolanation fo' the same and thereafter conductin q an enquirv bv all c,r rrinq evidence to prove the charqe and then onlv takb a1 oropriate action aqaanst the petitioner but not otherwisg had admittedlv not been ollowed in the oresent case. I his Cou ootnes that in vi w of the simole fact borne o ! record that the ! e to enable the nor n iti n oetitioner to satisfv the petitaone r's absence as indi resoondel !:s herean that ted in ther order i Duoned order was due to Drooer reaso s, Deti :ioner's absence ca nnot be treated as unauthori ed ab i :nce warrantino er's remova l. Takino into consid( !- 'ation the fact as oetition borne nrecor.l that no enorr rv had he r condu ed, the oetitioner is entitled for the relief as ora)1 :d for.

13. In an id ntical situation th is Court v ide its J dqment dated 23.O3.20()9 tn W.P. No s9 8of: l, lO9 obs rved as afforded to Admittedlv. no enquirv was held and 1 )oD ortunitv lleoatio te! toa bove readsas the Detitioner to re Th f z under:- t5 SN, J WP No.21943 of 2020 "Instances have come to notice that the contract crew whose contract is terminated due to their involvement in absenteeism, accident/C&T irregularity cases are approaching the Courts and the Courts are pronouncing judgments that whenever stigma, like involvement in accident, cash and ticket irregularities and other serious misconducts. is attached, a detailed enquiry has to be conducted and further action has to be taken." . ..If the petitioner is liable to satisfy the respondents that his absence was due to proper reasons, his absence cannot be treated as unauthorized absence warranting his removal. In this view of the matter, the writ petition is allowed. The impugned service with liberty to the respondents to hold an enquiry orders are quashed. The petitioner shall be reinstated into service with liberty to the respondents to hold an enquiry".

14. This Court opanes that the order ampugned dated 21-.OL.2O2O of the 3rd respondent as borne on record does not indicate any clear finding as having been arrived at on merits against the petitioner, that the petitioner had absconded from his duties deliberately or wantonly nor there is any show cause notice on record as having been issued to the petitioner indicating the period of petitaoner's absence, the details of the dates and the month when petitioner absented/absconded himself from petitioner's duties and indulged in dereliction of duties of the petitioner as atleged in the impugned proceed'ngs dated 21.01 .2O2O of the 3'd respondent at the second last I l6 SN..I \\:P No 2394.1 of2010 paragraph. This Court opines that the or ler impugned is in clear violation of principles of natural jr stice.

15. Takino into onsideration : (a) The aforesaid facts and circrr nstances of the case, (b) The submissions made by the learned counsel appearing on behalf of the petitioner rnd the learned Standing Counsel, appearing on behalf o the respondent No.2, (c) The averments made in the :ounter affidavit filed on behalf of the respondent No.2 rnd in particular para Nos.S, I and 9 referred to and extra( ted above, (d) The fact as borne on rtr, ord the order impugned dated 21.O1.2O2O passed by the District Panchayat Officer, Khamma had been on the basis of the report of the Mandal Panchayat Officer : ubmitted behind the back of the petitioner withorr providing an opportunity of personal hearing to the r -.titioner without issuing prior notice to the petitioner is irr clear violation of principles of natural justice. The reasons as mentioned in ''*ai t7 SN, J WP No.ll9{l o1 2020 the order impugned dated 21.O1.202O by the District Panchayat Officer, Khammam is contrary to the averments made in the counter affidavit filed on behalf ol 2"d respondent in particular para No.8 referred to and extracted above. The writ petition is allowed, as prayed for, order impugned dated 21.01.2O2O ol the 3'd respondent is set aside. The respondents are directed to consider the request of the petitioner for reinstatement of the petitioner into petitioner's services as Electrician, and for grant of all consequential monetary benefits with effect from 17.09.2OL9, in accordance to law, duly taking into consideration the observations in the various Judgments referred to and extracted above, within a period of four (4) weeks from the date of receipt of a copy of this order and duly communicate the decision to the petitioner. However, there shall be no order as to costs. Petition, shall stand closed. Miscellaneous petitions, if any, pending in this Writ I I That Rule Nisi has been made absolute as above' Witness THE HON'BLE THE CHIEF JUSTICE APARESH KUMAR SINGH' on this MoNDAy, THE ELEvENTH ori-or eucusr rwo rHousAND AND TwENTY FlvE A ./ //TRUE COPY// I To

1. The Principal Secretary, Panchayathraj Depart ftvderabad, State of T Sd/. P.C. SULEKHA DEVI ISTANT REGISTRAR ECTION OFFICER Telangana Secretariat, Mudigonda MandalKhammam District Mudigonda Mandal, Khammam District Panchayath Secretary, Grampanchayath G: rcjhasiri, 2 Il " 3 The Dislrict panchayath Officer, Khammam District. 4. I he District Collector, (panchayath) Khammam. r. sn u.Raghava Reddv, Upa_.Surpanch, Grampar Jtayath 6 Sri Jaladi pichaiah, Eleckician Grampanchayath, C;i ndhasiri, Mandal, Khammam District. The Mandal Panchayath Officer, Mudigonda, Khammarr District pne Cc to SRt GH.GANESH, Advocaie fopijCj- Two CCs to Gp FOR SERVICES-|, Higd Court'for the { tate of Tetangana, at Hyderabad. [OUT] . Two CCs to Gp FOR REVENUE, High Court for the : ate of Tetangana, at Hyderabad. [OUT] Two CD Copies AN, Gandhasiri, Mudigonda " ' 7 8 I 10

11. PSK'D B. I l I HIGH COURT DATED: 1110812025 CC TODAY ORDER WP.No.23943 of 2020 1' OR( .r.---S- ) i ll, i.-..::. \ a) .'. (,) .J 1 1 qPR ir]2fi >: $' Dct ALLOWING THE WRIT PETITION WITHOUT COSTS k0