Vankanavath Somani v. Union of lndia

Petition under section 151 cPc praying that in the circurn ;tances stated in the affidavit filed in support of the petition, the High court may be p t ased to suspend the order No SRC/PF/CT(GD)A/.5/69 Bn/SSBiRGP/2020/8159-6( dated 0B-06-2021 pending d isposal of the Writ Petition. t.A. NO: 2 OF 2023 Petition under section 15'1 CPC praying that in the circurr ;tances slated in the )leased to direct the affidavit filed in support of the petition, the High court may b€ Respondent No.2 to consider the letter / extension of leave let er dated o2.o9.2O2O addressed by the Petitioner to the Respondent No.2 pendinrl disposal of the writ Petition. Counsel for the Petitioner: SRI K.JAGADISHWAR REDDY Counsel for the Respondents: SRI R.ANURAG' SC FOR CEt TRAL GOVT' The Court made the following: ORDER I THE HON'BLE MRS. JUSTICE SUREPALLI NANDA WRIT PETITIO N No.29 317 0F 023 ORDER: Heard Sri K.lagadishwar Reddy, learned counsel appearing on behalf of the petitioner and Sri R.Anurag. learned Standing Counsel appearing on behalf of the resPondents. 2 The oetitioner a DDrOac hed t e Cou see ino Draver as under: "...to issue Writ, order or direction, one more particularly in the nature of a writ of Mandamus declaring the action of the Respondents more particularly the Respondent No.2 in issuing order 'lrlo.SRC/PFICT(GD)/V.S/698n / SsBl RGP I 2O20l81 59-69 dated 08-06-2021 dismissing the Petitioner from the service as harsh, excessive and illegal and in violation of Articles 14, 16 & 20 of Constitution of India and consequently direct the Respondents-to reinstate-the Petitioner to his place in the 69th Battalion SSB Rhenock and Pass..." 3 e e a edb th titio er as nder The Petitioner was appointed as Constable (GD) in i) Sashastra Seema Bal in 2019 and had an unblemished 2 SN,J W.P I o.29317 of 2023 service record. In June 2020, the petitiont: availed duly sanctioned leave to attend to his seriously i I father. When the petitioner was about to rejoin duty, the )etitioner and his family also developed COVID_19 symptr) ns and were advised mandatory quarantine. ii) The petitioner immediately informed tt e authorities and submitted multiple requests for medical kr, ve extension with supporting documents. Instead of cc,r sidering the Petitioner's genuine and unavoidable circurr jtances, the Respondents repeatedly directed the petitio.r_.r to report back to duty. i,i) Shockingly, the Respondent No.2 rl :clared the Petitioner a "deserter,,and later dismissed hirr .rom service vide order No.SRC/PF/CT(GD)/V.5/69 Bn/SSr /RGp/2020/ 8159-69 dated 08.06.2021, treating the petitio I :r,s absence as unauthorized. Aggrieved by the same, tr3 petitioner filed the present writ petition.

4.P RU ED TH RE coR D: I SN,J W.P,No.29317 of 2023 A) The relevant portion of the order imDuqned vide No.SRC/PFlC T(GD)/V.S/69 Bn/SSB/RGP 12020/aL59 -69 dated 08.06.2021. is extracted hereunder: "Subject: DISMISSAL FROM THE SERVICE UNDER RULE-21 OF THE SSB RULES-2009. Whereas, UIN-11280487 Regt. No.120773959 CT(GD) Vankanavath Somani S/o. Sh. Vankanavath Fakeera, Vill-Building Thanda. PO-Kachiraju Pally. PS- Chandan Pet mandal, Distt-Nalgonda, State-Andhra Pradesh (Now Telangana) PIN-508248 is overstaying from leave wef. 03.07.2020 (F/N) without prior permission of the authority and you have been informed vide letter No.SRC/PFICT(GD)/V.5/69rnlBn SSB/RGP/2020 / 15312-73 daled 24.10.2020 and letter N o. SRC/PFlCr (G D ) V. S/69th Bn / SSB / RGP I 2O2O I L 6405 - 07 dated 19.l]-.2O2O to rejoin duty. But neither you have reported to join the duty nor submitted any reply in this rega rd. 2- And whereas, a Court of Inquiry was ordered vide order No.SRC/PFICT (GD)/V.S/69th Bn/SSB/RGP/202O/2324-26 dated 19.02.2021 under Section 7aQ) of the SSB Act 2007 and on the basis of Court of Inquiry. I am satisfied of the facts of such absconding without due authority and the deficiency in government property which are in your possession i.e. Service Identity Card & Govt. kit items.

3. And whereas, Apprehension Poll was issued to concerned Police authority to apprehended you vide letter N o. S RC/ PFICT( G D )/V. S/69th B n/S S B/ RG p/ 2 0 20 / 50 77 10.04.2021 No. SRC/PFlCT(GD)/V. S/69thBn/SSB/RGp/20 20 / 5545 dated 18.04.2021. But neither you have surrendered yourself before the police authority or in the unit nor you have been apprehended by the police. Accordingly you have been declared as deemed to be a "deserter" letter N o. S RC/ P F/ CT( G D )/V. S/ 6 9th Bn/S S B/ RG P/2 O 20 / 60 O 4 - t O dated 24.04.202L No. 4 sN,l W.P.Nc. \93L7 ot 2023 4 And whereas, you have been called upon ide this No.SRC/PFICT (GD) letter t.S/69th Bn/SSB/RGP/2O2O16353 dated 03.05.20 Z No.SRC/PF/CT (GD) VS/69tr' Bn/SSB/RGP/zt);( /7O99 dated 18.05.2021 to show cause as to why , ltion to tentatlvely dismiss you from service for m s:onduct should not be initiated against you under Rule-21 of the SSB Rules 2009. 5 And whereas, you have not filed any r3ply till date and it is presumed that you have nothirlr to put forth in your defence.

6. Now therefore, in view of above, un<l utilizing the power vested under section 1 1(.1 SSB Act 2007 read with Rule 179 of the SSB F ( and Rule-21 read with Rule-18 "Dismissed you 1 service with immediate effect and also struck the strength of 69th Bn SSB. Rhenock from 08. (AN). The period of unauthorized absenc 03.07.2020 to 08.06.2021 (i.e. 341 days) treated as dies-nonfor all the purposes. rsig ned of the le 2009 -om the rff from )6.2027 : from hall be

7. You are at liberty to prefer an appe r to the authority higher than the undersigned within )0 days as per provisions given under Rule 29 of the S ! B Rules 2009" DISCUSSION AND CONCLUS ION:-

5. Learned counsel appearing on behalf of tt e petitioner contends that the impugned order dated 08.0€.2021 by respondent No.2 was passed mechanicl ly, without application of mind, without following due prl:edure, and issued without conducting any enquiry as mandatec under the rules. It is further contended that the ordet was issued ) SN,J W.P.No.29317 of 2023 without providing a reasonable opportunity to the petitioner, and therefore, the said order of dismissal from service with immediate effect is liable to be set aside as it is in clear violation of the principles of natural justice.

6. Learned Standing Counsel appearing on behalf of the respondents, on the other hand, submits that it is true that the petitioner had rendered eight years of service as Constable (GD). However, in vievJ of the fact that the petitioner was called upon vide letters dated 03'05'2021 and 18.05.2021 to shot{ cause as to why an action to tentatively dismiss the petitioner from service for misconduct should not be initiated against the petitioner, as the petitioner had overstayed his leave from 03'07 '2020 without prior permission of the competent authority, and despite two letters dated 24.10.2020 and 19'11'2020 addressed by the respondents directing the petitioner to rejoin duty, the petitioner neither reported for duty nor submitted any explanation. Therefore, respondent No'2 was constrained to issue the order of dismissal from service with immediate effect. Since the said order was passed in accordance to law, it warrants no interference by this Court' 6 SN,J W.P. { ).29317 of 2023 and hence, the present writ petition is iable to be dism issed.

7. Learned Standing Counsel further r; tbmits that, though the learned counsel appearing on t =half of the petitioner has orarry contended that there is i vioration of the principles of natural justice, there arr: no specific pleadings to that effect in the affidavit filed by t ie petitioner in support of the present writ petition. Her ce, on that ground also, the petitioner is not entitled to he relief as prayed for in the present writ petition.

8. A bare perusal of the impugned c rder dated 08.06.2027, particularly paragraph No.5, cletr ly indicates that the petitioner was called upon to show carse as to why action should not be initiated against the prr titioner for dismissal from service on the ground of miscor duct under Rule 2L of the SSB Rules, 2009, vide lt: ters dated 03.05.2021 and 18.05.2021. However, the petij ioner failed to furnish any reply even as on 0g.06.2021, arrr I fhslsfsr-s, respondent No.2 proceeded on the presumpti( n that the petitioner had nothing to submit in his c< fence and accordingly passed the impugned order. /: 7 SN,J W.P.No.29317 of 2023 9. This Court opines that in any departmental proceedings relating to unauthorized absence from duty, the disciplinary authority is required to record a finding as to whether the absence was willful. In the absence of such a finding, this Court is of the view that the absence cannot be treated as misconduct. to. Jud qment of this Cou Int e simila r crrcu sta nces the Division B nch dated 28.0 1.2015 in P.No. O57 o 2015 h rel v nt No.11 , observed as u nd er: e Court held "The department did not sanction leave or refer him to the Medical Board for examination. Inasmuch as the leave application dt: 26.11.2009 was within the period of one year, upon which no order of either sanctioning or refusing was passed, the invocation of drastic provision of F.R 18-A and ordering deemed resignation is not legally valid. ln the decision ."p6.tud in Krushnakant B- Parmar vs. Union of India and another (AIR 2072 sC (Supp) 42) submitted by learned counsel for respondent, Hon'ble if alleoation of nauthorized Droceed inq, abs nce from dutv is ma e. the d iscioli arv aut oritv is reouired to Drov e that the absen ce ts e c will not am ount to mrscon duct. A sence from dutv withou t anv aDDlication or orio Dermrss1()n ean w lful. There maY be does not alwavs n employee maY different eventualities due to which a abstain from duty, including compelling circumstances beyond his control like illness, accident, hospita lization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or his behaviour unbecomlng of a Government servant' D h a \ 8 w.P. \ The above decision squarely applies to 1t case. Here, the petitioner failed to establish the respondent remained unauthorisedl, exceeding one year without applying for I secondly, such unauthorized absence vr, Therefore, the impugned order pass3 G.O.Ms.No.122 General Administratior Department dt: 01.05.2014 was rightly set the Tribunal. We see no reason to interfer: said order. " ),29317 ot sN,J 2023 e instant rstly that absent -.ave and s wilful. I under (oP.v) aside by with the

11. T e ex Co m t ted 15.02.20 L2 o edi 20L s in" US NA NT 13 . PARMARv NI OF IND OTHER" ras 16 to2 5, observedasu nder: AND DA ticu la r I t e "16. The question whether .unauttorised absence from duty. amounts to fai ure of devotion to duty or behaviour unbr: toming of a Government servant cannot be r ecided without deciding the question ,rr hether absence is willful or because of corr pelling circumstances.

17. If the absence is the resutt of corn pelling circumstances under which it w: s not possible to report or perform duty such absence cannot be held to be willfut.

18. Absence from duty without any applir:, prior permission may amount to unaut absence, but it does not always mear There may be different eventualiaies due .r an employee may abstain from duty, ir compelling circumstances beyond his cort illness, accident, hospitalisation, etc., but case the employee cannot be held gjitty cf of devotion to duty or behaviour ,,ifi".orri Government se rva n t. tion or rorised willful. , which :lud ing -ol like N SUCh fa ilu re lg of a

19. In a Departmental proceeding, if alleqa tion of unauthorised absence from duty is mJ: -.,- the 7 9 sN,l W,P.No.29317 of 2023 disciplinary authority is requlred to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.

20. In the present case the Inquiry Officer on appreciation of evidence though held that ,the appellant was unauthorisedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. 21. The question relating to jurisdiction of the Court in judicial review in a DeP a rtme nta I proceeding fell for consideration before this Court in M.B. Biilani vs. U nion of I ndia and othe rS reported in (2006) 5 SCC BB wherein this Court held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi- judicial function, who upon analysing the iocuments must ari'ive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts' He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures' He cannot enquire into the allegations with which the delinquent officer had not been charged with'"

22. In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though t0 SN,J W.P.l 1.29317 of 2023 the appellant had taken a specific defenc was prevented from attending duty t, Venkateswarlu, DCIO, palanpur *ho t him to sign the attendance register brought on record 11 defence exhibits , of his defence that he was prevented t,) attendance register, this includes his le: 3rd October, 1995 addressed to Shri t JD, SIB, Ahmedabad, receipts from office of Telephone calls dated 29th Sr: 1995, etc. but such defence and evider ignored and on the basis of irrelevant surmises the Inquiry Officer held the i guilty. 23. Mr. P. Venkateswarlu, DCIO, palang was the complainant and against whom i alleged bias refused to appear before th< Officer in spite of service of summons. l.r witnesses, Shri livrani and Shri L.N. -no statement against the appel ; one of them stated that he had no kr about absence of the appellant. Ignc,r aforesaid evidence, on the basis of sirnr conjectures, the Inquiry Officer held the proved. : that he Shri P. 'evented rnd also su pport sign the er dated . P. Jain, ;TDlPCO )tem be r, ce were 'act a nd ppellant u r, who ppellant Inquiry ro other fhakkar nt, and rwledge ing the ses and charge

24. Though the aforesaid facts noticert Ap-pellate Authority but ignoring such fact reference of extraneous allegStions wh < not the part of the charge, dismissed the with following uncalled for observation: by the ; giving h were appeal "The appellant even avoided the tl required for the job and asked JAt, to send all the training papers for li IB Training School, Shivpuri (Madh to his residence at Ahmedabad. ' a officer is of no worth to the departnt rsic tra in ing Ahmedabad ; training at ,a Pradesh) r u ntrained nt'. "

25. In the impugned disciplinary Authority; High Court result, the appeal is allowe J. The orders of dismissal pasl;, rd by authority, affirmed by the Ag pellate Central Administrative Tribu r rl and are set aside. The appellant stands l-l 5N,J W.P.No.29317 ol 2(J23 reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked For a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs. " L2. In the present case, no enquiry has been conducted by respondent No.2 to arrive at a finding that the petitioner's absence was deliberate and willful. In the absence of such a finding, this Court opines that the impugned order has been passed arbitrarily against the petitioner in clear violation of principles of natural justice without conducting due enquiry as per the procedure as mandated under the statute and the relevant rules.

13. TAKI G INTO CONSIDE RATION: a) The aforesaid facts and circumstances of the case, b) The submissions made by the learned counsel appearing on behalf of the petitioner and the learned Standing Counsel appearing on behalf of the respondents, 5- 2 SN,J W.P.N,) 29317 of 2023 c) The observations of the Apex Cor rrt in the judgments (referred to and extracted abov( ), The Dresent writ Detition is all w ( The im D u oned order No. SRc PFICT(r D)/V.S /69 B n ssB/RGP/2020/ 8159-69 dated O8.O6. ! O21 is set aside. However. it is observed that it is r> ren to the resD ondents to oroceed aoainst the or::itioner in acco rda nc e to !aw, bv followino the due or '_ rcedure as mandated under the rules. if thev intend to I o so. This ord er is Dassed in the facts and circumstar c of the present case and shall not be treated as.r p reced ent lno ther similar cases. There shall be no g rder as to costs. Miscellaneous petitions, if any, pending r this Writ Petition, shall stand closed //TRUE COPY// SD/. A, SRINIVASA REDDY ASSII iTANT BEGISTRAR /.l= SECTION OFFICER The Director General, Sashastra Seema Bal, Block-V(ErLr t), R.K. puram, New Delhi, Union of lndia-66 The Commandant,69th Battalion, SSB, Rungdung Basti, I lata Golai. Rhenock, East Sikkim (Sikkim) 737133 The Commandant, (PERS-ll), FHQ SSB, New Dethi The Commandant (Admin), FTR Hqrs, SSB, Siliguri, Wer;1 Bengal The Deputy Commandant (Admn), SHe. SSB, Gangtok, I ikkim One CC to SRI K.JAGADISHWAR REDDY, Advocate [O: JC] One CC to SRI R.ANURAG, SC FOR CENTRAL GOW. [, )pUC] One CC to SRI N.BHUJANGA RAO, DEpUTy SOLTC|I ]R GENERTAL OF lNDIA, High Court for the State of Telangana at Hyderaba I [OpUC] Two CD Copies ! tw!ffifl '%;'. To,

7. B. - ry-, isr--4E--r.?" CC TODAY HIGH COURT DATED: 0811012025 rTo )), t !., ':<r- . -i,-.:' (\ ')tL f-& ORDER WP.No.29317 ot 2023 ALLOWING THE WRIT PETITION, WITHOUT COSTS \l \ xh 13