Ms. P. LAKSHMI PRIYA REPRESENTING SRl. P v. RAMANA

Order

In this writ petition, the petitioner is challenging the order of respondent No. l-Superintendent of police, Khammam in C.No.26l pR / At2 / 2O1 O,DO. No.4 63 / 20 12, d,ated OS.O2.2O t2 imposing the penaltJz of removal from service on the ground of unauthorized absence from 2g.O5.2OO9 to 2T.OS.2O1O and treating the period of desertion from 2g.O5. 2OO9 to I3.Og.2OlO as loss without pay and treating the suspension period from 13.09.2010 to lO. l2.2OlO as hot on duty, and the order of respondent No.2/appellate authority-Deputy Inspector Warangal Range 1n C.No.5/APP /2013, R.O.No.616 /2013, dated 1T.OZ.2Ol3 and the order of respondent No.3/revisional authorier_Inspector General of Police, North Zone, Hyderabad, in L.Dis.No.2OOl/A3/pR/ 2073, ZOO No.22O/2Ot3, dated 07.12.2OI3, as illegal, arbitrary and unconstitutional and contrary to the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short,CCCA RulesJ and to d.eclare that the General of police, 2 petitioner is entitled for reinstatement into service, with all consequential benefits and to pass such other order or orders.

2 t). The brief facts leading to the filing of present writ petition are that the petitioner was working as a Police Constable at Burgampahad Police Station of Khammam District when he was issued the passport on 27.O5.2OO9 to go to Sullurupeta Village of Nellore District with instructions to serve summons on the accused in Crime No.12 of 2OO4 for the oflence under Section 337 of I.P.C. and report back. It is submitted that the petitioner did not report back in view of the illness due to the heat suffered by him and he claims to have taken treatment from 28.O5.2OO9 frorn a Civil Surgeon, RMO, Osmania General Hospital, Hyderabad, up to 02.09.2O1O. It is submitted that the medical certifrcate to that extent was submitted before the concerned respondent authorit5r and in the meantime, the petitioner received the desertion order dated 07.O7.2O09 and the petitioner appeared before the Superintendent of Police, Khammam on O2.O9.2O10 and requested to take him back into dut5r. The Superintendent of Police accepted the request of i1 3 the petitioner and took him into dut1r, but placed him under suspension immediately thereafter. Thereafter, the Circle Inspector of Police, Manuguru was appointed as an Enquiry Officer for conducting enquiry into the charge of unauthorized absence of the petitioner. On 01.10.2010 Articles of Charge was issued by the Superintendent of Police, Khammam. 2 ii). According to the petitioner, the date ment.ioned in the charge memo does not tatly with the date on which he was passported and the period of 21 days as desertecl period. It is submitted that though there was a reference to the document on which the charge memo was issued and two witnesses were quoted for examination, except for recording the statement of the petitioner, no enquiry was conducted in the presence of tJle petitioner and thereafter, the Enquiry Oflicer submitted his report on I 5.O4.2O I 1 to the Disciplinary Authorit5r declaring the charge as proved. The Superintendent of Police, Khammam issued a Memo dated 16.O5.2011 enclosing a copy of the letter and observed that the petitioner agreed with the frndings of the Enquiry Officer ald therefore, asked him to submit his further representation, if any, within lS days from 4 E the date of receipt of the Memo. Thereafter, the order of removal from service was passed by respondent No. 1 on O5.O2.2O12. Aggrieved by the same, the petitioner ltled an appeal before the respondent No.2 or: 2l-12-2012, but the sarne was rejected on the ground of limitation and ttre petitioner frled a revision before the revisional authority/ respondent No.3, but the same was also rejected, vide order dated O7. I2.2Ol3 and therefore, the said punishment order, appeal order and the revisional order were challenged by the petitioner by filing O.A.No.495O of 2Ol4 before the Andhra Pradesh Administrative Tribunal raising the following grounds: a) that the Disciplinary Authority failed to conduct detailed departmental enquiry as prouided under Rule-27 of the CCCA Rules rea.d with Article 311 (2) of the Constitution of India. It is submitted that the applicant uas supposed to report back to the dutg afier seruing summolts on the acqtsed afier fiue days and therefore, the unauthorized absence uould aise onlg afier lapse of fiue dags from 02.06.2009. But on the contrary, the charge uas framed stating that the applicant taas absented from dutg from 28.05'2009 and completed the 21 dags peiod Aa lZ OA,ZOSO_ andthereby desertedtheforce. ,/ 5 b) The nert ground is that the charge memo though contained the list of documents and utitnesses, no doatments u.tere marked in the presence of the petitioner and none of the uitnesses were examined and therefore, the enquiry was not properlg conducted. c) that the Disciplinary Autlrcitg ought to haue communicated a copy of the enquiry report to the applicant without indicating as to whether he agreed or not with the enqriry report and tfuerefore, it is against the pinciples of natural justice. d) that in uiew of tLrc major penaltg sought to be imposed, the applicant ought to haue giuen a personal heaing and for failure to do so, the order of remoual from seruice is liable to be set aside.

3. Later, afl.er abolition of the Andhra Pradesh Administrative Tribunal by the Government, the matter has been transferred to this Court and it is renumbered as Writ Petition (TR) No.2614 of 2017.

4. Ms. P. Lakshmi Priya, learned counsel representing on behalf of Sri P.V. Ramana, learned counsel for the petitioner i_l I 6 has drawn the attention of this Court to the enquiry report wherein the charge was extracted mentioning the wrong date of passporting and also reporting for dut5r. She submitted that on this ground alone, the petitioner has to succeed in this matter. The learned counsel has placed reliance upon the following decisions in support of her case: 1) Roop Singh Negi a. hnJab Natlonal Bank and othersr; and ii) Manoging Director, ECIL, Hgderobad and others o. B. Kc;runakar and other*. 5 i). On the other hand, the learned Government Pleader for Home, appearing for the respondents, has relied upon the averments made in the counter affidavit and submitted that the petitioner was deputed to serve summons on tl.e accused on 27.O5.2OO9 and thereafter, he ought to have returned to the Police Station and reported for duty, but he failed to do so tlll 17.06.20O9 and e'lter 2l days of absence, he was declared as a deserter in accordance with the Service Rules. It is submitted that though the petitioner claims to have suffered ' (2009) 2 scc s7o ' ltggll q scclzt l ill-health which is the reason for not reporting to dut5r, he has failed to submit the medical certificate in proof thereof. It is submitted that the petitioner has admitted his guilt in his representation dated 31.08.2010 and therefore, there was no necessit5r of conducting any enquiry under Section 20 of CCCA Rules. It is submitted that the Enquiry Officer has followed the relevant procedure for conducting the enquiry and it is only due to the admission of the petitioner that the list of documents mentioned in the charge memo and list of witnesses were not examined during the course of enquiry. It is submitted that though two witnesses i.e., Sub-Inspector of Potce and Junior Assistant of District Police Ofhce, Khammam have been examined, the petitioner has not chosen to cross examine them. 5 ii). As regards the non-supply of a copy of enquiry report to the petitioner, it is submitted that copy of Enquiry Report was furnished to the petitioner and required the petitioner to submit further representation, if any, within 15 days, but tJ:e petitioner did not submit his explanation even after issuance of reminder memos dated 29.06.2011, 19.O7.2O1L, 8

23.07.2011 and 06.08.2011. It is submitted that in these circumstances, respondent No. 1 passed final order dated

05.O2.2O12 awarding punishment of remova-l from service. It is submitted that ttre period of suspension i.e., 13.09.2009 to lO.O2.2OlO was treated as 'not on duty'in accordance with the Rules. It is stated that the petitioner was in the habit of absenting from duties unauthorizedly and in this incident, he was absented from dut5r for more than ayeil and therefore, no interference is called for.

6. Having regard to the rival contentions and the material on record, this Court hnds that the petitioner has absented unauthorizedly from duty for more thal one yezrr and the reason given for absence is ill-health due to heat of summer, however, no documents in support of the same have been filed by the petitioner before any of the auttrorities or even before this Court. Further, the ill-health from the heat could not have been for more than a year. As righfly pointed out by the respondents, two witnesses were examrned by the Enquiry Offrcer ald the petitioner has not chosen to cross-exalTune them. Therefore, it cannot be said that the petitioner was not 9 given suffrcient opportunity of representation. Irurther, it is seen that it is the petitioner who has not taken the necessar5r approval from the authorities before absenting from duty. In view of above, this Court is not satisfied that there was any reasonable cause for absence from dut5r.

7. The judgments relied upon by the learned counsel for the petitioner are as follows: In the case of Roop Stngh /vegi (cited supra). the Honble Supreme Court was considering the case of misconduct by an employee of the bank and in the departmenta-l enquiry, except for production of documents there was no further evidence, therefore, it was held that mere production of documents is not enough, but the contents of the documentar5r evidence have to be proved by examining the witnesses and mere hling of FIR is not an evidence without actual proof of facts stated therein. In the case of Managing Director, ECIL, Hgderabad (cited supra), ttre Honble Supreme Court was considering as to whether non-furnishing of enquiry report would vitiate the disciplinary proceedings and it was held that the right to II 10 receive the copy of report of Enquiry Report is an essential part of reasonable opportunitlr in the hrst stage and also principles of natural justice.

8. However, applying the rationale of these two judgments to the facts in the present case, it is noticed that the petitioner has claimed that copy of enquiry report was not furnished to the petitioner and that the witnesses were not examined during the course of enquiry. The documents referred to in the charge memo are the i) report of the S.I. of Police, Burgampahad Police Station, dated 14.06.2009 about the passporting of the petitioner on 27.05.2009 and his absence thereafter; ii) desertion order; and iii) Lr. in Cr.No.85/SI- Q2|2OO9, dated 04.08.2OO9 of the S.L of Police, Burgampahad Police Station being the acknowledgement copy of the desertion order. As a-ll of these facts are admitted facts, there was no occasion to prove these documents. However, it is noticed that the statement of the petitioner was not recorded during the course of enquiry, but it is only the final explanation given by the petitioner that was taken into consideration before giving the enquiry report. Even frorn the / 11 impugned order of removal frorn service, there is no reference to the show cause notice calling for objections, if any on the enqurry report.

9. . Therefore, this Court is satisfied that the principles of natura-l justice have not been strictly followed in this case and the order of removal from service is liable to be set aside. The petitioner is therefore directed to be reinstated into seryice. However, the respondents are at libertlr to conduct enquiry afresh and the treatment to be given to the period from the date of termination till the date of reinstatement shall be considered by tJle respondents after a decision is taken on ttre charge sheet issued to the petitioner.

10. With the above observation and direction, the writ petition is disposed of. No order as to costs. Miscellaneous applications, if any, pending in this writ petition, shall stand closed. SD/-A. SRINIVASA REDDY ASSISTANT REGISTRAR i/TRUE COPY// TION OFFICER To,

1. The Superintendent of police,.Khammam District, Khammam. f fi! ftlB:U J i Bi"":% ""? EJ,e;,r*"41ly.* [fu'g.J i.itr;$,ffr :ri;{#fl#?t+l+l'i+ret*:::';:'::,"", /. I wo CD Copies BSs tiv,,,,s, r HIGH COURT DATED:0310112025 I ORDER WP(TR).N o.2614 of 2017 1 Et1 S 14 0f r[8 2U5 I * DlsPostNG oF THE WRIT pETtTtON (TR) WITHOUT COSTS (gt,ri'' * n