High Court · 1999

Order

This writ petition is filed, questioning the order of dismissal, dated 22nd January 1999, passed Proceedings RC.No.ESTT/8140/ 98, by the 1st respondent, and the order of the 2nd respondent/appellate authority, dated 25th February 1999, passed Proceedings RC.No.Estt/8140/98, rejecting the appeal preferred by the petitioner.

2. The petitioner herein was working as a Staff Nurse in the Andhra Pradesh Social Welfare Residential School in Rajapet of Nalgonda District. A student by name Master G.Ratnakar, hailing from Annaram village near Miryalguda in Nalgonda District, was studying 10th class in the said school. The said student fell sick in the school, and after few days, he was allowed to leave the school to join his parents in his native village, but unfortunately, he died on 1st of August 1998, alleged to be on account of Jaundice suffered by him. On receiving the information about the death of said student, the Joint Secretary of the A.P. Social Welfare Residential Educational Society, proceeded to Rajapet and conducted preliminary inquiry on 2nd of August 1998. As he found in the preliminary inquiry that there was negligence on the part of petitioner while dealing with the case of the student, disciplinary proceedings were initiated against her. It is relevant to mention here that proceedings were also initiated against the Principal of the school at the relevant time. Based on the preliminary inquiry report, the petitioner was placed under suspension. The charges framed against the petitioner in the disciplinary proceedings read as under : failed

“Charge 1 : That Smt.S.Shanta Laxmi, Staff Nurse, APSWR School, Rajapet, Nalgonda initiate appropriate District action immediately in the case of Master G.Rathnakar, Xth Class student leading to his death which amounts to serious negligence and dereliction of duties on the part of the individual. Charge 2 : That Smt.S.Shanta Laxmi, Staff Nurse has permitted the student to go to home against the instructions of Society that the student when sick should not be sent home but referred to a nearby Govt. Hospital for treatment. Had she retained the boy and referred to a Govt. Hospital the health condition of the ailing boy have improved. This clearly shows that the Staff Nurse failed to perform her official duties properly.”

3. In response to the charge sheet issued to her, the petitioner has filed her explanation. As per explanation filed by the petitioner, it was her case that when the deceased student Master G.Ratnakar was referred to her, she had taken him to the panel Doctor by name Sri Rami Reddy, administered the medicines prescribed by the said Doctor and brought the student back to the school. It is stated that after five days, when the said student was keen to go to his parents, he was permitted to leave the school by the Principal of the school.

4. In her explanation, the petitioner has denied the charges of negligence and dereliction of duties alleged against her, by stating that she did not permit the student to leave the school contrary to the Rules, but the student was permitted to go home, by the Principal of the school.

5. Inspite of such an explanation by the petitioner/Staff Nurse, having not satisfied with the same, respondents have proceeded to conduct an inquiry, and the Joint Secretary (Administration), has conducted the inquiry and submitted a common inquiry report against the Principal and also the petitioner/Staff Nurse. Based on the findings recorded by the inquiry officer, the 1st respondent has passed orders, dated 22nd January 1999, dismissing the petitioner from service. Though the petitioner has availed the remedy of departmental appeal, the 2nd respondent/appellate authority, has rejected the appeal, by his order, dated 25th February 1999, passed in Proceedings RC.No.Estt/8140/98. Hence, the present writ petition.

6. Heard learned counsel Sri M.V.Raja Ram, appearing for the petitioner, and Sri K.Durga Prasad, learned Standing Counsel appearing for the respondents.

7. In this writ petition, it is mainly contended by the learned counsel appearing for the petitioner that the petitioner was dismissed from service without giving any opportunity in the inquiry conducted on the charges framed against her. It is the case of the petitioner that though some oral evidence was recorded, but the petitioner was denied the opportunity to cross-examine the witnesses, as such, the inquiry conducted is in gross- violation of the principles of natural justice, apart from contrary to the rules titled as ‘The Andhra Pradesh Social Welfare Residential Service (Discipline and Appeal) Rules, 1987’. It is submitted that inspite of denial of charges framed against the petitioner, the inquiry officer appears to have been recorded findings against her, and based on the same, without giving any further opportunity and without supplying even a copy of the inquiry report, the order of dismissal is passed. It is submitted that the petitioner was not negligent at all and she has merely administered the medicines to the ailing student Master G.Ratnakar, as per the advise of the panel Doctor, and further, she did not permit the student to leave the school on her own, but the student was permitted to see his parents in his native village, only pursuant permission granted by the Principal, but not by her. In any event, it is submitted that though the House Master and the Principal are mainly responsible for the charges, they let-off by imposing the minor punishment of stoppage of two increments, but for no fault of the petitioner, she is being imposed with the major penalty of dismissal.

8. On the other hand, it is submitted by the learned Standing Counsel Sri K. Durga Prasad, appearing for the respondents that as the petitioner was working as Staff Nurse, the ailing boy was entrusted to her, and he was kept in the sick room, but as the petitioner has not taken care of the said student properly, the same has resulted in his death. It is submitted that though there are instructions not to permit the ailing student to leave the school, the petitioner has violated the said circular instructions and acted contrary to that. In that context, it is submitted by the learned Standing Counsel that as the charges framed against the petitioner are grave in nature, she was removed from service, based on the findings recorded by the inquiry officer.

9. Before I deal with the respective contentions, it is appropriate to refer to relevant provisions in the applicable Rules, namely, The Andhra Pradesh Social Welfare Residential Service (Discipline and Appeal) Rules, 1987. Penalties in the disciplinary proceedings are provided in Rule 6 of the Rules, and for good and sufficient reasons, any of the penalties contemplated under Rule 6 can be imposed. Rule 6(1)(vii) deals with the penalty of dismissal from service. Rule 10(2)(a) provides the procedure for imposing the penalty of dismissal. It obligates to give reasonable time to the delinquent/employee to file the written statement with his defence, and to state whether he desires an oral inquiry, or to be heard in person, or both. The said Rule permits the person charged, to cross- examine the witnesses, who give evidence in person. Rule 10(2)(c) specifically obligates to supply a copy of the report of inquiry to the delinquent/employee, and to give reasonable opportunity of making a representation before passing final orders.

10. When the matter is taken up, the learned Standing Counsel has produced the relevant record pertaining to the case, and I have perused the same. A perusal of the record clearly indicates that the inquiry is not conducted in the method and manner known to law. The record reveals recording of some statements from the alleged witnesses, and inquiry officer has merely endorsed to the effect that the said statements were recorded infront of him. There was no opportunity to cross-examine such witnesses by the delinquent/employee, although the statement of the petitioner was also recorded along with the other persons. The inquiry proceedings reveal that the inquiry is conducted contrary to the Rules referred above, particularly Rule 10(2)(a) and (c) of the Rules. Though it is specifically alleged in the affidavit filed in support of the writ petition that a copy of the inquiry report is not furnished, the same is not denied in the counter affidavit filed on behalf of the respondents. Further, the learned Standing Counsel fairly admits that on conclusion of inquiry, no further opportunity was given to the petitioner/employee, and the copy of the inquiry report was also not supplied to her.

11. The record placed before this Court includes the joint inquiry report conducted against the Principal and also the petitioner herein. A perusal of the said report reveals that even against the Principal, a charge is framed to the effect that he failed to take appropriate action in the case of Master G.Ratnakar and failed to provide medical aid, but simply sent the boy to home, without following the standing instructions of the Society to the effect that no sick child should be sent home without proper treatment, and as such, the action of Principal amounts negligence and dereliction of duties. There are also other charges framed against the Principal, which are not relevant for the purpose of adjudication of this writ petition. With reference to the said charge framed against the Principal, common inquiry findings are recorded to the effect that the said charge is proved. The comprehensive charge i.e. Charge No.1, which is framed against the Principal, covers the similar charges, which are split into two, so far as the petitioner is concerned. Though identical charge is proved so far as the Principal is concerned, it is stated in the counter affidavit that he was imposed with the penalty of stoppage of two increments. When it is the case of the petitioner right from the beginning that she has administered the medicine as per the panel Doctor’s advise and the student left to his parents’ place on the permission granted by the Principal, inspite of the same, by recording adverse findings against the petitioner in the inquiry proceedings, which itself is not in conformity with the Rules governing the disciplinary actions, she was imposed with the penalty of dismissal. Even the explanation filed by the Principal of the School during the inquiry proceedings, reveals that he too has stated that the Staff Nurse has administered the medicine as per the advise of the panel Doctor. From the whole proceedings, and on a perusal of the record, it appears that though the other responsible persons, namely, the Principal and House Master were let-off without imposing any major penalty, however, the axe has fallen on the petitioner, based on the findings recorded by the inquiry officer, which are not only perverse and contrary to the evidence on record, but also recorded in gross violation of the principles of natural justice, and the Rules governing the disciplinary actions. Although it is submitted by the learned Standing Counsel appearing for the respondents that the charges levelled against the petitioner are grave, but it is to be viewed that such grave charge is also framed against the Principal, who is the head of the institution, and who was let-off with the punishment of stoppage of two increments, whereas the petitioner, though is a Staff Nurse, who has to work as per the advise of the Doctors, was imposed with the penalty of dismissal. Ex-facie, the said action of respondents appears to be arbitrary and discriminatory, and in violation of equality of rights guaranteed under Article 14 of the Constitution of India. Further, the impugned order is also to be set aside as the same is not based on any valid inquiry conducted in accordance with the Rules. Though the major penalty of dismissal is imposed on the petitioner, the inquiry is conducted in gross violation of various Rules framed under the Andhra Pradesh Social Welfare Residential Service (Discipline and Appeal) Rules, 1987, without even giving the opportunity to the petitioner to cross-examine the witnesses examined during the inquiry by the inquiry officer. Further, the punishment is imposed without even giving a copy of the findings recorded by the inquiry officer and also by not giving a further show cause notice, which has caused any amount of prejudice to the cause of the petitioner, more so, when she has denied the charges.

12. In view of the findings recorded above, keeping in mind the period for which the petitioner is out of service, and pendency of this writ petition for about nine years before this Court, I am of the view that interests of justice would be met if the order of dismissal is set aside by giving the benefit of continuity of service and all other attendant benefits, and 50% of arrears of salary.

13. For the aforesaid reasons, the order of dismissal, dated 22nd January 1999, passed by the 1st respondent, and the subsequent order, dated 25th February 1999, passed by the 2nd respondent/appellate authority, confirming the order dated 22nd January 1999, are set aside. Further, there shall be a direction respondents to reinstate the petitioner into service forthwith, and to pay 50% of arrears of salary to her, and to extend the benefit of continuity of service and all other consequential attendant benefits. The arrears of salary as indicted above, shall be paid within a period of two months from the date of receipt of a copy of this order.

14. The writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 12th March 2009.