Partly allowed

Dr. v.Rama Rao, v. Government of Andhra Pradesh

Telangana HC20 Oct 2014WP/18616/2014

Case brief

AI extract

What is this about?

The Court allowed the writ petition, noting a pattern of unauthorized absence without justification. While admitting misconduct, the Court applied the doctrine of proportionality, reducing the punishment from removal to compulsory retirement to ensure basic retirement benefits, though service连续性 during absence was denied.

What did the court decide?

Punishment of removal from service modified to compulsory retirement; period of absence treated as dies-non for pension calculations.

Dr. v.Rama Rao, Vs Government of Andhra Pradesh — Cheating and Forgery | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.18616 OF 2014

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed challenging the order, dated 29.4.2014, in O.A.No.3891 of 2007 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, “the Tribunal”).

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2. Petitioner herein/applicant filed the aforementioned Original Application before the Tribunal to issue an order or direction declaring the action of the Government in issuing G.O.Ms.No.111, Health, Medical & Family Welfare (VC.II.2) Department, dated 13.4.2007, directing his removal from service (Civil Surgeon Specialist, Area Hospital, Rampachodavaram) with immediate effect as illegal and arbitrary, and consequently, to direct respondent Nos.1 and 2 herein/respondents to permit him to continue in service with effect from the date of his removal.

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3. The Tribunal, upon considering the material on record, dismissed the aforementioned Original Application. Challenging the same, applicant filed the present writ petition.

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4. The first charge levelled against the petitioner was that while he was working as Civil Surgeon Specialist (O&G), District Headquarters Hospital, Rajahmundry, he was absconding from his legitimate duties with effect from 6.10.2000 onwards causing much inconvenience to the patients and hospital administration, which amounts to misconduct, and thus, he violated Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964 (for short, “the Rules”). The second charge levelled against him was that while he was working at Rampachodavaram, East Godavari District, he went on unauthorized absence from duty with effect from 9.10.2002 onwards and caused much inconvenience to the patients and hospital administration and that due to those acts of misconduct, he exhibited lack of integrity, devotion to duty and conduct unbecoming of a Public Servant and thereby, violated Rule 3 of the Rules.

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5. After issuing a charge memo, a regular departmental enquiry was initiated against

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him. The Enquiry Officer, after conducting the enquiry, submitted a report stating that the petitioner was absent from 6.10.2000 onwards unauthorisedly without there being any application and thereby, he committed misconduct. Accepting the report of the Enquiry Officer, the disciplinary authority issued a show cause notice as to why one increment with cumulative effect should not be imposed upon him. After issuing the show cause notice, the disciplinary authority sought for the advice of respondent No.2-Andhra Pradesh Public Service Commission, which in turn, advised the disciplinary authority to take action in terms of G.O.Ms.No.260, General Administration (SER.C) Department, dated 4.9.2003. Thereafter, the punishment of removal from service was imposed. Challenging the same, petitioner filed O.A.No.3891 of 2007 before the Tribunal and the same was allowed on 25.9.2009, and the matter was remanded to the Government to impose the punishment basing on the facts and circumstances of the case by exercising its discretion in accordance with the rules. Challenging the same, Government filed W.P.No.23659 of 2010 wherein this Court, by an order, dated 27.12.2012, remanded the matter to the Tribunal for consideration afresh to examine and consider Rule 21 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, Regulation 17 of the Andhra Pradesh Public Service Commission, and G.O.Ms.No.260, dated 4.9.2003. Thereupon, the Tribunal passed the impugned order confirming the punishment imposed by the disciplinary authority. Challenging the same, applicant filed the present writ petition.

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6. According to the learned Government Pleader for Services-I (Andhra Pradesh State), for about 3 ½ years i.e., from 6.10.2000 to 22.8.2002 and from 9.10.2002 to 11.3.2004, the petitioner was absent from duty without there being any justification i.e., neither applied for leave nor intimated about his absence to the higher authorities. It is not a case where the findings of the Enquiry Officer are not based upon any material on record. There is some evidence on record, which would go to show that the delinquent officer was absent for about 3 ½ years without there being any leave. Therefore, the disciplinary authority rightly accepted the Enquiry Officer’s report.

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7. Coming to the question of Doctrine of proportionality, the disciplinary authority is competent to impose appropriate punishment depending upon the gravity of the misconduct. G.O.Ms.No.260, dated 4.9.2003, contemplates that when a Government Servant was absent for a period of more than one year, he is liable for dismissal.

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Unless the punishment imposed is disproportionate to the proved misconduct or shocks the conscience of the Court, normally, this Court or the Tribunal would not interfere with the same. The imposition of the punishment is exclusively within the domain of the disciplinary authority or in case of appeal, the appellate authority. Normally, this Court would not exercise the power and functions of the disciplinary authority to modify the punishment imposed, but in peculiar circumstances, this Court can modify the sentence, as laid down by the Supreme Court in S.R.Tewari vs. R.K.Singh and another wherein it is held at para No.34 as under:

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“The proved charges remained only Charges 4 and 6 and in both the cases the misconduct seems to be of an administrative nature rather than a misconduct of a serious nature. It was not the case of the Department that the appellant had taken the escort vehicle with him. There was only one vehicle which was an official vehicle for his use and Charge 6 stood partly proved. In view thereof, the punishment of compulsory retirement shocks the conscience of the Court and by no stretch of imagination can it be held to be proportionate or commensurate to the delinquency committed by and proved against the appellant. The only punishment which could be held to be commensurate to the delinquency was as proposed by the Government of India to withhold two increments for one year without cumulative effect. It would have been appropriate to remand the case to the disciplinary authority to impose the appropriate punishment. However, considering the chequered history of the case and in view of the fact that the appellant had remained under suspension for 11 months, suffered the order of dismissal for 19 months and would retire after reaching the age of superannuation in December 2013, the facts of the case warrant that this Court should substitute the punishment of compulsory retirement to the punishment proposed by the Union of India i.e. withholding of two increments for one year without having cumulative effect.”

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It is a fact that the petitioner joined in service in the year 1982 and prior to the enquiry conducted by the disciplinary authority, there were no disciplinary proceedings against him including unauthorized absence from discharging his professional duties. This is the first occasion where the petitioner was absent for about 3 ½ years thereby, causing inconvenience to the patients. After initiation of the disciplinary proceedings, he continued in service till the date of superannuation on 13.4.2007. In these peculiar facts and circumstances of the case, if the punishment of dismissal from service is upheld, certainly, he would not get any of the retirement benefits for the service rendered by him. At the same time, this Court would not approve the conduct of the petitioner in absenting himself without there being any leave. Therefore, the punishment of “removal from service” can be modified to that of “compulsory retirement” making it clear that the period of absence shall not be

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treated as service rendered by him and he is not entitled for the monetary benefits for his absence for about 3 ½ years and that service cannot be taken as continuity of service, but it can be taken as dies-non for the purpose of reckoning the pensionary benefits.

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8. With the above modification, the Writ Petition is allowed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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JUSTICE K.C.BHANU

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JUSTICE ANIS Date: 20.10.2014 AMD

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166

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.18616 OF 2014