A. The impuqned proceedinqs vide File No.CCE-OP v. Government Degree College, Mahabubnagar has last

Counsel for the Peti :ioner: SRI MD MURTUZA ALI FARUQUI Counsel for the Fles rondent Nos.1 TO 4: GP FOR SERVICES I The Court made the following: ORDER HON'BLE MRS. JUSTICE SUREPALLI NANDA WRIT PETITION No.433O4 OF 2022 ORDER: Heard Sri M. Murtuza Ali Faruqui, learned counse! appearing on behalf of the petitioner, learned Government Pleader for Services-Il, appearing on behalf of respondent Nos.1 to 4, 2 asu der: ner a roach ed seekin r "...to issue writ, order, direction more particularly one in the nature of Writ of Mandamus declaring the Termination order issued by the loint Director of Collegiate Education in his Proc. No. RIDCE Proc CCE- OP-1/GEN/38/2019-GEN dt. 06-11-2019 and the Proceedings of the Commissioner of Collegiate Education, Telangana State, Hyderabad in file No CCE- OP4/GEN/9512022-OP-MI. 02-01-2023 and to permit the petitioner to join duty, and pass such other order or orders may deem fit and proper in the circumstances of the case (Prayer is amended as per C.O dt. 3l/tO/2O23 in 1A Ot/2023)".

3. The case of the petitioner in brief, is that the petitioner has been appointed as waterman under compassionate grounds in collegiate Education Department vide proceedings dated 2 SN. I T'P 41104 2022

21.07.2)CB rrrd joined duty on 18.08.2008. l-he pettoner had developed r:lrest pain on 03.03.2012 and went int,t depression due to r.a,hir:l- the petitioner was not able to att:rrd office. Thereaf :er- tlrer petitioner submitted medical c:rtif icat:s; showing the periocl o' absence from duty but the respondent authorities did not i,rllcn'the petitioner to join duty. Tre -<rspondent authoritie:; rriIiated disciplinary action against the pel itioner and articles of c harges were issued against th€r potiti( r er. The disciplinary ;ruthority did not conduct prop(lr nquiry as enuncia[el ir the CCA rules and under the prcvisions of Service Rules for irr p,osing such a heavy penalty of termir ation from service vic e File No.CCE-OP-1/GEN/38/2019-G :l{ dated

06.11.20:l 9, The disciplinary authority/Appointing autt crity failed to cond rct d screet inquiry into the case of ther petitio tr:r without following :he rnandatory provisions of the Telangana I eave Rules

1933. Tl- err:after the petitioner's termination from t rr: services was up,hr:ld by the 3'd respondent vide lrrocee:d ngs dated

02.0t.20'.}.3. l\ggrieved by the same, the petitioner t;tproached the Court b'y filing the present writ petition.

4. PERUILE_I) THE RECORD. 3 SN, J wP 43304 2022 A. The impuqned proceedinqs vide File No.CCE-OP- L/GEN/3at2O19-GEN. dated 06-11-2019 of the 3'd respondent is extracted hereunder: "Smt. Sulthana Begum, Waterman, MVS Government Degree College, Mahabubnagar has last attended to duty in the college on an application to sanction leave from 05.03.2012 to 05.04.2012. But she 01.03.2012 as per the attendance register. On 06.03.2012, she submitted did not report to duty till 08.05.2017 nor submitted any application for extension of leave. On 08.05.2017, Smt. Sulthana Begum, submitted an application stating that she went on leave on different spells due to ill health. She has submitted medical certificates for the period from 03.03.2072 to 24.Lt.2014 & 25.11.2014 to 09.05.2017 and requested to accord permission to join duty. On perusal of the records furnished by the principal MVS government degree college, Mahaboobnagar it is notice that Smt. Suithana begum, Waterman has frequently not attended the college without any leaves application in her service, the settlement of leave for those days is pending for wanI of her request applicatlons. The annual grade increments were also not released for the said cause. The individual has applied for leave on 06-03-2012 bnly after that no application has been submitted by the individual for the absent period i.e.. from 06-04-20 L2 to 07-O5-2O17. Accordingly, Departmental proceedings under Rule 20 of the TSCS (CCA) Rules were initiated against the individual and Article of Charges was framed. Through reference 7th cited the Principal, MVS Government Degree College, Mahabubnagar has submitted l 4 \\,P 4r304j;-2j that exc anation of Smt. Sulthana Begum, Waterm,tr lo the Artick: ol (lharges framed against her. 5;r1t. Sulthana Begum has submitt€,d that J te to chest pie n and depression, she was under medical t.ettment at llyder:lrad for the period from 03.03.20 tZ to C9.O! ..,1077 , as riu:h she could not perform her duties ard she \r as not abs3nt t) her duties unauthorized. She siate,i :htt was beyond ler control and not in a consciousness anJ t.or rvhich she u,as fbrced to go on leave. She stated t hat f tmily burrlets a1d other circumstances paved a rnray for tr:r ill_ hea th ard gone under depression and could rot perfo-rr her duties She further submitted that she h.rs not I ri lfully absr:n': tr her duties and not having any ma11 ir ten: ion to evarJe he - ,egitimate duties. For ill-health due: to depr e;sron and o':he- ailments, he was compelled to grl 61 let ve on mecical (rrf,unds. She requested to treat th_. le,lve o:riod beyonrJ 5 5,ears as per FR 1g A ..dies non,. oT, huran titrian grou ncls. l-ltrough reference Bth read above, tl- e n)att€ r was address€|( to the Commissioner of Collegiite Edu( ation, Telargarr;, State, Hyderabad for issue of necesisar), orc eTs in this'er;ar1. I'lr:ugh reference 9th read above, the Contrnis;i )ner of Crrllr:giitte Education, Telangana State, Hyderatracj ;trted that the absence of Smt Sulthana Begum, Waternla-t s not justilied a rd directed the Regional Joint Direr:trrr of Collegiate Education to invoke the provisions of Rule I B (b) as mentio re:d vide G.O. Ms. No. 129 Finance (F:R.I) Deg t dt. 07.o1;.i'.007 5 SN, J wP 43304 2022 The following instructions are issued in Amendment to the Leave Rules vide G.O. Ms.No. 129 Flnance (FRI) Dept., dt. 01.06.2007. AMENDMENT In the said rules, after rule 5-A, the following shall be added. namely:- "Rule 5-B: A Government servant shall be deemed to have resigned from the service if he:- (a) is absent without authorization for a period exceeding One year'or for a period exceeding 'One year' or (b) Remains absent from duty for a continuous period exceeding five years with or without leave: (c) Continues on foreign service beyond the period approved by the State Govt. Therefore. in view of t e above circumstances, and Rule 5B(b) of Leave Rules, the Reqional Joint Director of Colleoiate Ed ucation herebv issues order that Smt, Sulthana Bequm. Waterman, MVS unauthorized absence to d tv w.e. from O6,O4.2O12 is terminated f om service". overnment D M h c r r B The counter affidavit has been filed on behalf of Iespondent Nos.1 to 4. The relevant Dara Nos.6, 7 and 8 are extracted hereunder: "6. In Reply to Para 4 to 6: It ls respectfully submitted that, the Petitioner vide her application dated: 08.05.2017 approached thb Regional loint Director of Collegiate Education, Warangal through Principal, MVS Government Degree College (A). Mahabubnagar to admit her to duty 6 SN. 'I \\ P .1i10,1 20?2 after her unauthorized to duties from 05.01.:1012 to 07.O5 2.017 beyond the period of 5 years i,e., 5 y:;trs 2 montl- s, l-he Regional loint Director of Collegiate Edu l. tion, Warar g,a issued Article of Charges vid,: Proc€ e Jings Rc.l'lo 591,/A2l2018, dated: 29.09.2018 for he'r urar-rtl crized absi:nce -c duty from 05.03.2012 to 07.05.2C 17. In r:lrly to the Artic e of Charge the Petitioner vide apF,licat ion d rted: 17.:10 20113 has submitted that it is unfortunate affeir that due to farrrily burdens and other circumstancos ptrved e way for her ilhealth and under gone depression anc cottlj not perl'orm rr:r duties and requested ihe Principa to ret r: her on invaldation pension on medical grouncs irt crlr:r to pro'rice r nrployment to her son. She was not willfully a )sent to (lu -i€rs and not having any mall intension to eva C,-' my legi:inrat: duties, but due to ill health. As iuch th( eave perioc Lrrryond 5 years as per FR 18 A may be treeted ::; dies non or humanitarian grounds. On receipt of Reply to,trticles of Clarrye s from the Petitioner dated: 1,'.10 2013, the Regio ral . oint Director of Collegiate Education, Wi rlngal addressed a letter to Commissioner of Collegiate Educi:tion, Tel.rnrTara State, Hyderabad vide Flle N(. UDCE- ESlT/97'?Ol9-O/o Superintendent (A)-RJD-CE, d ated : 20.,15.2C19 and requested to issue necessarv crrdels The Corr nl is;s ic)n er of Collegiate Education, Telan;ana, Hyc erab;rcl vide Proceedings File llo.C ll:-OP- L/CEltl33,'2Ot9-GEN, dated: 24.10.2079 has recues eC the Regioiel .loint Director of Collegiate Education, V/ara r(lal to tak,: act on duly invoking Rule 5(B)(b) of G.O.Ms. tl,r.129 Finirn,:e (l=R"I) Department 01.06.2007 dulV fo lowi rr; the pro:eCure 7 wP-43r04lilii 7, In Reply to Para 7:- It is respectfully submitted that Government issued orders in G.O.Ms.No.129 Finance (FR.I) Department dated : 01.06.2007. Hence, the Regional loint Director of Collegiate Education, Warangal vide Proceedings File No.CCE-OP- 1/cEN/38/2079-GEN, dated: 06.11.2019 issued order of termination of services to Smt. Sultan Begum, Waterman, MVS Government Degree College(A), Mahabubnagar for her unauthorized absence to duty beyond the period of 5 years from 06.04.2012 to 07.05.2017 duly invoking rule 5(B)(b) of G.O.Ms.No.129 Finance (FR.1) Department dated: 01.06.2007. 8. In Reply to Para 8:- It is respectfully submitted that, the action taken by the Regional Joint Director of Collegiate Education, Warangal vide Proceedings File No.CCE-OP- llcEN/38/2O79-GEN, dated: 06.11.2019 in termination of services to Smt. Sultana Begum, Waterman, MVS Government Degree College(A), Mahabubnagar for her unauthorized absence from duty beyond the period oF 5 years is totally as per rules in force and orders of the Government in terms of vide G.O.Ms.No.129 Finance (FR'I) Department dated: 01.06.2007 duly invoking rule 5(B)(b). Further, a reasonable opportunity was given to the Petitioner herein Smt. Sultana Begum, Waterman, MVS Government Degree College(A), Mahabubnagar by issuing Article of Charges vide Regional loint Director of Colleglate Education, Warangal Proceedings Rc.No.591/A2l2018, dated: 29.09.2018 for her unauthorized absence to duty from 05.03.2012 to. 07.O5.2OL7 to which the Petitioner has submitted her reply vide application dated: 17.lO.2O18, which was not satisfa ctory". r- &;&x3 8 SN, J I',P 4 t I0,1 2022 DISCUSS IONI CONCLU I

5. Ttte lr:,:,ned counsel appearing on beharf of thr petitioner submits thal the petitioner was not provideJ with rt:asonable opportu liiy prior to passing the impugned prrtc,3r dings and further 1he P-()viso to Rule 5-B referred to in tl-e counte- affidavit had bee:n totally ignored. n oAn Pradesh Leave ruleg- 1933, Rule 5-B of the Leave Rules;- 1933is extractedl he reu n der: "Rllr: 5-El:- A Government servant shall be leerrr:d to hav: re:;rE red from the service if he - (a r 'a) is absent without authorlzation fc r a per icd of exceerlinr;'one year,' or (b r ( r') emains absent from duty for a continuous pe -itd of exc<:edinrl five years, with or without leave; or (c) (c) continues on foreign service beyond ._he p:riod approveC Ly the State Government: j-I!rJ_l:d that a reasonable oooortunitv to e;grlain the reqstrn for such absence or continuation on f(rreiqn SCrylle j,hall be qiven to the Govt. Servant before the p-tov_!si!_-oj rs of th is sub-rule are invoked".

6. Th: learred counsel appearing on behall, of the prstitionsp further sub,mits; that against the order dated 06, l:..2.01) passed by the Jcint Director of Collegiate Educatior, vlarangal, terminatinrl :he services of the petitioner, t,.le petitioner 9 SN, J wP 43304 2022 preferred an appeal before the Commissioner of Collegiate Education, Telangana State, Hyderabad and the said appeal preferred by the petitioner had also been rejected on 02.0L.2023 holding that since the period of absence of the petitioner is more than five years the petitioner is deemed to have resigned from service, holding that the order dated 06.11.2019 passed by the Regional Joint Director, does not call for any interference. T his Court oDrnes th tt he order dated O6.11.2019 and 7 also t e order of the aooell ate a utho fl tv dated O 2.OL.2023 are passed unila erallv, mechanicallv without aoolication ind. without oivinq reason ble oooortunitv t n Detiti oner, witho t followin the Provis o to Rule -B of Amen dment to Andhra Prad esh leave Rules. 193 3 which ind icates that the Detitaoner has to be orovided clearl with a reason able oDDortunitv to exDlain the reason for such absence v conduct inq due noulrv, a dbv aDDOln tinq an enquirv offi cer to arrive at a findi nq th n adm itted tv ha aDoel late Aut ofl not been followed in the Dresent ca se. The callv wit outa ss nlno tv al m , -'',..' J ..ltt-,riW 10 SN. J \\ P 41304 2022 '''. anv reasolt$ rel ed the aD als DTgiu'teel_ bv the petitioneL-dated 23.12.2019 & 09.05.2022 holdinq that the ordegp.- dated 06.11.2019 of the R nal Joint Director 4q_not call for anv interference'lhe[=^ib re, both the impuglCd orders File No.CCE-OP-GEN/38/2i0 19-GEN dated O6r...1_1-.2019 and File No.ccE-oP4/G 9512022- oP-IV. d:rted O2-O1 .2()23 are liable to be set aside

8. Learn,:l counsel appearing on behalf of the petitioner relied on,,r decision reported in 2O23 (2) ALD 787 (TS) dated

31.01.2023 between Rahamat Ali Vs. uther:r Power Distribut,iorr ComDanv of Telanqana Ltd,,-llylera bad and Others, -lhis Court referred the following judgmerrts of the Apex Court ol Iirdia in Rahamat Ali case cited (supra) rn KL J s nakanth B. Parrnar Vs- ll nion ol_ India & h Another rieJxlrted in (2O12) 3 SCC 178 in particular at para Nos.17 tLZ1, it is observed as under: "17 . . f t ro absence is the result of compellinil cir<:um: uncer wr ch it was not possible to report or petforr such ,rbserce cannot be held to be willful. Absenct: fro witlro rt r,)y application or prior permission rnay aln unautholi::ed absence. but it does not always mean The re nr;ry . be different eventualities due to \r'/ h em:lc'ye: may abstain from duty, including con clrcunlstrnces beyond his control like illness a( hospitali.:;tion, etc., but in such case the emoloyee it tnces r duty, T d uty )L nt to vrillfu I . ch an pelling c dent, c lnnot 11 SN, J wP 43304 2022 be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. r ce n De

14. unauthorised absence from dutv is m de. the +.r rrr^ ve th .+ iha G redrrirad dicr.in lina rrr absence is willful, in ab nce of such fin ino, the a bsenc e rarill n tam nlrnt to misc nduct rr rf lrnr. fV o

19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorized absent from duty but failed to hold the absence is willful; the dlsciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant g u ilty.

20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 sCC a8 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 orficer performs a quasi-judicial tunction, who upon analysing the documents mus! arrive 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."

21. 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". -it,;&* 12 SN, J $iP 43304 2022 (2) the judgment of the Apex Court r€,ported (2004) _4__scc s50 in Sri Baqwan Lal Arva Commissiorrer of P lice, Delhi & Others. Vs. (3 ). I'hre judgment of the Apex Court reporite,d in AfR 1996 SC 4tljl between B.C.Ch atu rved i vs. Uniofl of f ndia l'(three Judq s Bench nd it n at pi11 a No.18 of the _114! ent dated 31.O1.2023 tn Aa[ngr! Ali Vs. Southern!r_@ td., Hvderabad_ril1d others at para No.18 observed as under;-

18. Ta<ing into consideration the law laid dorvrr by the Ape>: Court in the judgements referred to and rjiscussed abor,e rextracted above) and also taking intc consideration th(l fa(tlr and circumstances of the present ca:;e which clearly irrdicate that the Petitioner had been rerroved from ser-vice unilaterally and the said punishmert < f removal frcm srlrvice imposed on the Petitioner is not ( nly highly ex:essii/e and disproportionate but manifestly arbitrary th 3 same had been inflicted upon the t,etitioner slnc€, wit.hr>ut r:onducting any enquiry and without arr iving at a fin li'rg that the Petitioner absconded fro r duties unauthrtrizedly w.e.f., 01.08.2001 onwards ,ruilft lly as per ,::he rl]e framed and issued to the petiti.nr:r, the Writ th€) Pe1:it on is allowed duly setting aside the orders p assed by Memo No.DEETOP/HBG/ADM/JAO/D.No.417, dt. 10.05.2118 and cor)fi.nr al ion order passed by the 2n11 Resp )ndent in Ap real vide Memo No.SE/Op/HBG/DE(-)/pO/tAO /Atlntn/F 25/D.No.12/t9, dated 19.01.20:9 end the Re:;pcnrlents are directed to reinstate the petiticner into servi:er r.rith all consequential benefits urithin a 6reriod of onr: mcnth from the date of receipt of th€r coD./ of the orcer. F cwever, there shall be no order as to cosl s, 9. This Court taking into considerataon the obsr:rvations of the Ape>l Court in the judgments (referrecl to and Respondent vide 3rd 13 SN, J wP 43104 2022 extracted above) oPines that in a dePartmental proceedings if allegation of unauthorized absence from duty is made, the Disciplinary Authority has the bounden duty to prove that absence is willful, in the absence of such finding, the absence of employee will not amount to misconduct. A bare perusal of the counter affidavit filed on behatf of the respondent Nos.1 to 4 clearly indicates that there had been no enquiry officer appointed at all and Articles of charge had been framed against the petitioner and petitioner's explanation was taken on record and the impugned order had been passed unilaterally in clear violation of principles of natural iustice without conducting any enquiry, without an enquiry officer being appointed and without the enquiry officer having arrived at a finding that the petitioner absconded from duties unauthorizedly and willfully as per the charges framed against the petitioner, as per due procedure under law'

10. It is represented by the learned counsel appearing on behalf of the petitioner that the petitioner is superannuated ind her services cannot be terminated' The tearned counse! further submits that the petitaoner's 1 l4 SN..I \\'P,1331r4 2022 son may lte provided with a compassionate appointment by the rel;pondents herein. This Court opint:s that the said prayer as sought for by the rearned counser is beyond the s<:ope of the present writ petition , Hou,ever, it is obser\ied Uhat the petitioner is at liberty tr: make a representation to the respondents seeking emplo,yment to the petitioner's son provided petitioner's son frrrfiils the eligibilit'1 cnteria, as per rules in force.

11. Tak:in I into cons ideration : (a) 'fhe aforesaid facts and circumstan(.es of the case, (b) 'l-he submissions made by the learned counsel appearin,g on behalf of the petitioner and the learned Assistant Government pleader for Services_Xl, appearing on behalf 01' respondents, (c) Ihe view of the Apex Court in the jr,rrlgments (referred to and extracted above), the fact as borne on record that no enquiry officer had been appointed in the present cas,e, no enquiry had been condrrrr:ted in accordan<:e to taw and no finding had been arrirrerd at on merits, that the petitioner absconded f ronr duties i.-l.rda*a.at!tt , : i5 SN, J wP 43304 2022 unauthorazedly and willfully with effect from 05.O8.2012 to 07.O5.2OL7, The orders impugned, dated 06.11.2019 & O2.OL.2023 are set aside and the writ petition is altowed, as prayed for. However, there shall be no order as to costs. The miscellaneous applications, pending if any, shall stand closed. That Rule Nisi has been made absolute as above' "/ witn".. ru.e I."J-it=t#t-+."JlY%FX,N[#il3 WEDNESDAY' THE FIVE ,/TRUE COPY// F"'"',i.'J-',ii'difili'h / SD/-N. SRIEARI EPUTY REGIST SECTION OFFICER ovt. of Telangana, To 1 Prl- Secretary for Collegiate Education' Secretariat' Hyderabad 2 Commissto BhadadriKothag udem District. 3. The Regional Joint MVS Gov 4. PrinciPal, 5. One CC to Two CCs t 6 Hvderabad tourl Two CD CoPies ner of Colleg iate Education, Telangana State, HYderabad' Directo r of Colleg iate Ed ucation, Warangal boobnagar ree College, Mah ernment Deg vocate [OP ,Ad RUOUI LI FA URTUZA A r the State ll, Hig h Court fo SERVICES- SRI MD M o GP FOR UCI ofTelangana, at

7. PSK. \qr HIGH COI.'FIT DATED:19103l':2025 ORDER WP.No.433l)4 ,of 2022 I I CC TODAY 6a"H=; A I o (, x ? D :ill 2625 z .C, .l:i ..-.,'t./ ,; -.;:::.--:/ ALLOWING T'}{E WRIT PETITION WITHOUT CC}STS 19 -S^ ft^,