V. Anjali Sree Vs State of Andhra Pradesh

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to declare the proceedings No.2459-VC.B.2015 dated 28.05.2016 issued by 2"^ respondent and the action of the respondents in not permitting the applicant to attend duties as wholly illegal, arbitrary^{andviolativeArticles} 14, 16 and 21 of the Constitution of India and violation of principles natural justice and total non-application of mind and without jurisdiction and

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consequently declare that the applicant is entitled to be continue in service as Staff Nurse.

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Counsel for the Petitioner: SRI HEMANTH KUMAR VEMURI

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Counsel for the Respondent Nos.1, 3 & 4 : GP FOR SERVICE- IV

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Counsel for the Respondent No.2 : SRI B. M. S. DURGA PRASAD (SC FOR AP V V P) Counsel for the Respondent: SRI G. L. NAGESWAR RAO

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The Court made the following: ORDER

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APHC010222212021

IN THE HIGH COURT OF ANDHRA PRADESH

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AT AMARAVATI

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(Special Original Jurisdiction)

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Monday, the Twenty Third day of June, Two Thousand and Twenty Five

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Present

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The Honourable Ms. Justice B.S.Bhanumathi

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Writ Petition Transfered from A.P.tA.T.) No: 154 of 2021

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(O.A.No.1971 of 2016)

Between:

V. Anjaii Sree

...Petitioner

and

State of Andhra Pradesh and others

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...Respondents

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Counsel for the petitioner:

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I.Hemanth Kumar Vemuri

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Counsel for the respondents:

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1.G.P. for Services -IV

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2.G.L. Nageswar Rao

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3.B.M.S. Durga Prasad (S.C. for A.P. V.V.P.)

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The Court made the following:

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W.P.(A.T.) No.154 of 2021

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ORDER:

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This petition was originally filed before the Andhra Pradesh Administrative Tribunal at Hyderabad vide O.A.No.1971 of 2016 and later, on transfer to this High Court, it was re-numbered as W.P.(A.T.)No.154 of 2021.

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This petition was filed to declare the proceeding vide Rc.No.2459A/C.B/2015, dated 28.05.2016, issued by the respondent No.2 and the action of the respondents in not permitting the petitioner to attend duties as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and violation of principles of natural justice and consequently to declare that the petitioner is entitled to be continued in service as staff nurse.

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The case of the petitioner is briefly as follows; The petitioner was appointed as staff nurse in the year 2006. There were no adverse remarks against her, except the^issue in the present petition. As the petitioner fell sick in the month of April, 2014 due to ailments of heart and liver, she applied leave w.e.f. 01.04.2014 and extended the leave from time to time. She was treated in S.M.A. Multi Specialty Hospital, Eluru. After recovering from ill-health, she reported to duty on 21.05.2015. However, she was issued a charge memo in Rc.No.2459A/C.B/2015, dated 22.09.2015 alleging^thatshe was unauthorizedly absent from 01.04.2014 to 20.05.2015 (it is incorrectly mentioned in the charge memo as 01.04.2015 to 20.05.2015). The petitioner submitted her explanation^{on26.10.2015.} Even then, an enquiry officer was appointed. An enquiry^washeldanda report was submitted with observation that all the leave applications of the petitioner were kept in her personal file. The co-staff nurses and

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head nurses examined by the enquiry officer stated that the petitioner might have suffered from the heart and liver ailments. Basing on this report, the Commissioner / respondent No.2 issued proceeding in Rc.No.2459A/C.B/2015 dated 10.05.2016 imposing punishment of stoppage of one annual grade increment without cumulative effect and treated the period of unauthorized absence as dies non and directed the District Co-ordinator of Hospital Services, Rajahmundry.^EastGodavari District to admit her to duty in the existing vacancy^{ofstaffnurseandto} send compliance report immediately to the office of the Commissioner. Accordingly, the petitioner joined in the district hospital, on 23.05.2016. The respondents referred the petitioner to the medical board seven months after the petitioner reported to the duty. The medical board submitted a report in the month of March, 2016 stating^{thattheillnessof} the petitioner cannot be judged at a belated stage.^There is no other charge pending against the petitioner. However, the respondent No.2 again issued another proceeding in Rc.No.2459A/C.B/2015, dated 28.05.2016 cancelling the proceeding dated 10.05.2016, without giving any notice and assigning any reason. Basing on this proceeding, the District Health Co-ordinator, District Hospital, Rajahmundry, orally instructed the petitioner not to attend duties w.e.f. 30.05.2016. As a precautionary measure, she applied for casual leave on 30.05.2016 and approached her counsel to file petition questioning the illegal action of the respondents, particularly issuing proceeding dated^28.05.2016as aforesaid.

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After hearing the petitioner, the Administrative Tribunal, on 02.06.2016 passed an interim order suspending the impugned order dated 28.05.2016 and directing the respondents No.2 to 4 to permit the

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petitioner to continue the work in the same hospital pending disposal of the original application.

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The respondent No.2 filed counter affidavit stating briefly as follows:

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The respondent No.2 issued the impugned order dated 28.05.2016 as per the rules in force vide (i) G.O.Ms.No.260, GA (SERC) Dept, dated 04.09.2003 (ii) G.O.Ms.No.128, Finance (FR-I) Dept., dated 01.06.2007, (iii) G.O.Ms.No.129, Finance (FR-I) Dept, dated 01.06.2007. Vide the G.O.Ms.Nos.128 and 129, Rule 18-A of the A.P. Fundamental Rules and Rule 5-B of the A.P. Leave Rules, 1933 were amended as follows:

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“A Government servant shall be deemed to have resigned from the service if he / she -

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(a) is absent without authorization for a period exceeding one year, or

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(b) remains absent from duty for a continuous period exceeding five years, with or without leave; or

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(c) continues on foreign service beyond the period approved by the State Government;

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Provided that a reasonable opportunity to explain the reason for such absence or continuation on foreign service shall be given to the Government Servant before the provisions^of this sub-rule are invoked.”

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Basing on the enquiry report, the respondent No.2 issued proceeding dated 10.05.2016, imposing the punishment aforesaid and treating the period of absence as dies non and posting was given to her on humanitarian grounds. But, the respondent No.2, reviewed the

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proceedings dated 10.05.2016 and issued the proceeding dated 28.05.2016 as per the rule position noted above. As the A.P. Administrative Tribunal passed the interim order by suspending the impugned order dated 28.05.2016, in compliance thereof, the respondent No.2 issued proceeding Rc.No.2459A/C.B/2015, dated 04.06.2016 to continue the petitioner to work in the same hospital. Therefore, the respondent No.2 prayed to dismiss the writ petition and pass appropriate orders.

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Heard both sides. 7. Sri K. Narasimha Rao, learned counsel representing^thelearned counsel for the petitioner submitted that the impugned proceeding is vitiated by violation of procedural law and principles of natural justice as no notice was given and no reason was assigned to set^aside the previous order dated 10.05.2016.

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Sri Vuyyuru Ram Manohar, learned Assistant Government Pleader for Services-I, submitted that the respondent^{No.2issuedthe} proceeding dated 04.06.2016 in obedience to the interim^orderandthe petitioner is continuing in the job from 23.05.2016^totilldate. 9. As the petitioner is allowed to continue in her job by virtue of the interim order of the Tribunal, the validity of the impugned proceedings has to be decided on merits. 10. When the respondent No.2 issued proceeding dated 10.05.2016, it is based on a report submitted after holding enquiry as per the rules and punishment was imposed, the period of absence of the petitioner from the duty was treated dies non and she was given posting, whereas when the impugned order dated 28.05.2016 was passed,^there is no

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prior notice or charge or reason at all and the respondent^No.2abruptly passed a single lined order as follows, by referring nine different proceedings, including representation of the petitioner^etc.: “With reference to the orders issued in the reference 9*^ cited, the orders are hereby CANCELLED WITH IMMEDIATE EFFECT. The District Coordinator of Hospital Services, Eluru, West Godavari District is requested to implement the orders^andsend compliance.”

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Thus, it was passed without following due procedure^oflawsuch as issuing show cause notice, receiving explanation, holding enquiry and passing order. Further, the impugned order lacks reason. Therefore, the impugned order dated 28.05.2016 is ex facie illegal and liable to be set aside. Consequent action shall be^taken.

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In the result, the writ petition is allowed and the proceeding issued by the respondent No.2, vide Rc.No.2459A/C.B/2015, dated 28.05.2016 is set aside. Consequently, the proceeding of the respondent No.2 issued vide Rc.No.2459A/C.B/2015, dated^10.05.2016 remain in force and shall be acted upon. If not, so far, the proceeding dated 10.05.2016 is not given effect, it shall be done^{forthwith.There} shall be no order as to costs.

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Interim orders granted earlier, if any, shall stand^vacated.

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Pending miscellaneous applications, if any, shall stand^closed.

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Sd/- A.VIJAYA BABU //TRUE COPY// ASSISTANT REGISTRAR ' SECTION OFFICER

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To,

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The Principal Secretary, Health, Medical and Family Welfare Department, State of Andhra Pradesh, Secretariat Buildings, Velagapudi, Amaravati,

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Guntur District.

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The Commissioner, A.P. Vaidya Vidhana Parishad, Vijayawada.

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The District Health Coordinator, The District Health Coordinator, District Hospital, Rajahmudnry, E.G.District.

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The Superintendent, District Hospital, Rajahmundry,^{E.G.District.} SrOne CC to Sri Hemanth Kumar Vemuri, Advocate [OPUC] 6,.-Two CCs to GP for Services IV, High Court of Andhra Pradesh at Amaravati

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[OUT] J^'One CC to Sri G. L. Nageswar Rao, Advocate [OPUC] "^.-One CC to Sri B M S Durga Prasad, (SC for AP V V P) [OPUC]

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