The Telangana High Court dismissed a writ petition challenging the removal of an SPF Constable from service for unauthorized absence and desertion.
The writ petition praying for reinstatement and setting aside the removal orders was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[3383 ]
HIGH COURT FOR THE STATEOF TELANGANA AT HYDERABAD
FRIDAY,THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SRI JUSTICE LAXMINARAYANA ALISHETTY
WRIT PETITION( TR ) NO: 531 OF 2017
Between:
A. Balasubramanyam, S/o Manikyam,Aged about 38 years,Ex.Cons_table, C.T.No.1 91 6 (under removal from service)Special Protection Force, Hyderabad. Rl/o H.No.2-60,Road No.l2,Chaitanyapuricolony, Dilsukhnagar'Hyderabd'
...pETrroNER
AND
...RESPONDENTS
Petition under Section 226 CPCprayingthat in the circumstances statedin the affidavit flled in support of thepetition, the High court maybe pleasedto call for the records relating to andconnected with theimpugned A3/PR/03(RZSPF/2009-1 1(OO No.A-58112011)dated 11.8.2011 removingthe applicant form services andits consequentialorders in procgs Rc.No.A3/PRy03 RZISPFtz}Og -12 (O.O.No.A-32l2012)dt.23.1.2O12 and its consequential procgs.Rc.No.A3/PR/03 (RZISPFl20o9-12 (O.ONo.27312012dt.16.04'2o12 rejecting the appeal and revisionof the applicant of the respondents 1 to 3 and set aside the same by holdingas illegal arbitrary contrary to the fact sevidence and available on records andagainst the orders issued in G.O.Ms.No. 260 dated 4.g.2003 principles of naturaljustice apart from violence of constitutional provisions and consequently direct the respondentsto reinstatethe applicant into service with all consequential benefitsas such as treaing the period uptoto 22.1O.20Og as medical leveand for the periodof out of employment period
pursuant to the impugned orders till his reinstatement to be treated as on duty as on duty
lA NO: 1 OF 2023
Petition under section 15i cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to receive the Xerox copies of the original Medical Certificates along with ML pass Ports dt: 6.8.2008 with MO Endorsements for extension of ML to the 1st respondent and same may taken into consideration while adjudicating the issue in WP(TR) 531 of 2012 in the interest of justice
Counsel for the petitioner: SRl. C. SAI REDDY
Counsel for the Respondents: Gp FOR SERVICES
The Court made the following: ORDER
HON'BLE SRI JUSTICE LAXMINARAYANAAIISHET'TY
WRIT PETITION ITRI NO.531 OF 2OL7
ORDER:
The present writ petition is hledto call for records relatingto and connected with impugnedorder vide No.A3/PR/O3(RZ)/ SPF/2009-11 dated11.08.2011removing the petitioner from service and its consequentialorders in Procs.Rc.No-A3lPRlO3lRZl / SPF l2OOg-12 dated16.04.2O12rejecting the appealand revisionof the applicant and consequentlydirect the respondentsto reinstate the petitioner into servicewith all consequentialbenefits.
2.1. While pelitionerwas working as SPF Constable (CT No.1916), the lst respondentissued article of charge videMemorandumdated Og.O2.2OLO allegingthat he becameOverstayal(OSL) from medical leave w.e.f. 18.03.2009and during his continuousOSL period, he has not informedhis whereabouts to his superiors and desertedfor the period of 21days and thereby exhibitedlack of integrityand unbecoming ofgovernmentservant. Petitionersubmitted detailed written statement indefense dated O3.03.201O,denyingthe allegations andstated that he was under treatmentfor ailment of
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'acute LBA with asthama dyspnoeawithasthama"w e f ' 06.08.2008 at Osmania General Hospital(OGH),Hyderabad'
2-2. It is also stated that the R.M.O.,Osmania General Hospital informed the Assistant Commandant,SPF, AP High Court Unit about his ill-health, treatment and necessigrof continuation of treatment. Based on the same, the AssistantCommandantsent sick passport to OGH for further treatment'The samewas also informed to Asst. Commandant, SPF, TTDUnit and in turn, it was informed to the Commandant (RZl, Officeof Director General,SPF, Hyderabad. But, due to non-recovery from ill-health,the Doctors of OGH advised the petitioner to take furthertreatment and bed rest from time to time, for which the respondentshave extended medical leave and petitioner reported back dutyon 19'03'2OO9' H
2.3. However, petitioner did not recover fromill-health and Doctors advised him to take further treatment andbed rest and accordingly, petitioner submitted applications forextension of medical leave passport from lg.O3.2OO9 to 04.O5.2OO9through registered post. However, the Assistant Commandant,SPF, Tirupathi refused to receive the said registeredpost and the same was returned with an endorsement 'addressee refused'. Petitioner sent another application for extension of medical leave passport from 04.O5.20O9 to 20.06.2009 by registered post on 07-O5-2OO9
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and the Assistant Commandant again relused to receivethe same and returned the said cover with an endorsement'addressee refused'.
2.4. The Asst. Commandant sent report to the higher authorities alleging that petitioner has become OSL from 19.03.2O09 and based on the report of the Asst.Commandant, 3'd respondent issued desertion orders dated 18.05.2009 in accordance with order no. 184 of A.P.Police Manual alleging thatpetitioner became OSL from 19.03.2009 and did not inform his whereabouts and directed to report for duty. As petitioner did not recover from ill-health, the Medical Ofhcer, OGH advised him for further treatment andbed rest w.e.f. 20.06.2009 with an endorsement to thateffect on the ML passport dated 06.08.20O8 twice upto2O. lO.2OO9.
2.5. After recovery from ill-health,petitionerreportedfor dutyon 22.LO.2OO9 by furnishing medicalcertihcate issuedby the Doctor. The respondents considered the ill-healthof the petitionerand ill- health of his daughter during the sameperiod and issued orders transferring the petitioner fromTirupathi to Hyderabad.The Asst.Commandant, SPF, TTDvide ordersdated08.09.2009, refused the extension ofmedical leave from 19.03.2009. The l't respondent appointedthe Asst.Commandant,SPF, Ananthapur as -an-jnquiry authority to inquire into the charge framed against the
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petitioner. During the enquiry,the Assistant Commandant' SPF' Tirupathi Unit was examined,who substantiatedthe chargesand deliberately noted about therefusal of registered posts sent by the petitioner for extension of medicalleave.The enquiry ofhcerdid not allow the petitioner to cross-examinethe witness and further'the enquiry ofhcer himself cross-examinedthe petitioner'
2.6. It is further contendedthat no opportunitywas given to the petitioner to cross-examine thewitnessand producehis witnesses and further, the original documentsof the petitioner werenot marked, which is clear violationof principles of naturaljustice. The enquiry officer submitted hisreporton 08'09'2010and given Iinding that petitioner had adoptedirreguiar sick procedure from O5.O9.2008 and continued after19 'O3'2OO9 'even after declaration of desertion for such a longperiod and ttrus, held that charges leveled against the petitionerwere proved'
2.7. It is contended thatprocedureadoptedby the enquiry officer is contrary to the rulesand enquiryoflicer taken into consideration, sick passportissued by the respondentsthemselves and thus, report is perverse'The petitioner submitted final explanation, dated O3.1O.2OIOto the show-causenoLicedated 13.O9.2O1O. However, withoutconsideringthesame' 1"t
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respondent issuedimpugnedorders' datedI I'08'201f imposing the majorpenaltyof removalfromservice'
2.8 The learnedcounselfor petitioner contended thatthe Government issuedordersin G'O Ms'No '260 'dated O4'O920O3'as per which, an employeecan be removed from service from unauthorized absencecontinuouslyfor a period exceeding one year after duly followingt]re procedurelaid down in A'P'C'S (CCA) Rules, 199 1. Therespondentsallegedthat petitionerwason OSL from 19.03.2009,but not unauthorized absenceand moreover' even according tothe respondents, the osl- period is only 277 days which is less thanone Year'
2.g.The2ndrespondentrejectedtheappealsubmittedbythe petitioner withoutconsideringthe contents of the appealvide proceedings dated23'01'2012and without assigning anyreason' The 3.a respondentalso rejectedthe revisi'on frled by the petitioner withoutassigningallyreason.Therefore,theimpugned punishment of removalfrom service is contrary to the G'O'and hence, liable tobe set aside'
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1991 forproviding protection and securily to vital installations, i.e., temples,power projects,dams, currency chests of banks including Reserve Bank ofIndia, High Court ofA.P., etc. Petitioner wasposted inone of thespecial protection units i.e, Tirumala Tirupathi Devasthanam,Tirupathi. The Department collects guard charges towardspay and allowances from the borrowing units in advanceevery year to the extent of deployment made and remits to theGovernment exchequer. Therefore,the Department is obligated to keep full strengthof force as per mutually agreed terms at anygiven time.Any unauthotizedand prolonged absence of the personnel will lead to disturbance in the functioning of the administration of theDepartmentand the Department is answerable to theborrowingunits for such lapse.
3.1. At the request ofpetitioner, hewas permitted CL from 2a.O7.2OO8 AN to 06.08.2008 AN. Aftercompletionof said period, petitioner is required to report back for duty on 06.O8,2008, but instead, petitioner sent the application stating thathe issuffering with ill-health and was admitted in Osmania General Hospital, Hyderabad. The RMO informed the same to SPF, AP High Court unit ofhce, Hyderabad and in turn, the Asst. Commandant, SPF, AP High Court ofhce sent sick book to OGH for further action. As
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per the advise ofRMO,the petitioner was passported to avail 30 days medicalleave w.e.f. 06.08.2009to 05.09.2OO8.
3.2.That after completion of medicalleave, petitionerwas due to report onO5.09.2OO8along with medical htnesscertihcate. Instead,petitioner directlyapproached the RMO, OGH, Hyderabad, and informedthat RMO advisedhim for 30 daysmedicalleave and requested formedical leave from 06'09.2OO8 toO5. 1O.2O08. Further, theirregular medicalleaveintimation was submittedto rhe Commandant(RZ) SPF vide letter dated 15.09.2008.From thereon,petitioneradoptedirregular medicalleave extensionfor five timesfrom 05.10.2008to18.03.2009. Petitioner after completionof medical leave extension,he was supposedto report duty on18.03.2009. However,petitionerdid not report and thus, he becameOSL from ML extensionand also completedthe desertionperiod of 2ldays from 08.04.2009. Therefore, letter dated 15.04.20O9wassent to the Commandant(RZ) SPF to declare thepetitioner as deserterfrom the Force' Accordingly, the Commandantpassedorder dated l8'05.2009declaringthe petitioneras deserter w.e.f. 19.O3.2OO9 FN' The same was communicatedto the petitioner through registered post dated 20.06.2009.However,registeredcover was returned with an endorsement'insuflicientaddress''
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3.3.Petitioner sent another letter requesting extensionof medical leaveand the samewas receivedby the Commandant, TTDand in responseto the said letter, petitioner was informed that he was alread!declaredas deserter and Asst.Commandant(RZ) SPFis not competentto considerhis request for extension of medicalleave an61advisedhim to report beforethe Commandant (RZ), SPF. The petidonerpersonally reportedbefore the SPF Headquarters and as such,he was sent to the Commandant (RZ), SPF and he endorsed his representationas 'taken him to dutyw.e.f . 22.10.2009 FN and sent himto his parentunit beforeAC, SPF,TTD and as such,he reportedfor duty before the Asst.Commandant, SPF,TTD on 23.1O.2OO9.Thus, the petitionerwas under unauthorizedabsence for a longperiod of 217 days from 19.o3.2009 FN to 22.1O.2009 FN without anyintimationto his superiors. Mere submission of medical certificatein support of his claim is not sufficient to becomeabsent from the armed forceand that too without any informationfor such long absence.
3.4.Subsequently, an enquirywas orderedby the Commandant (RZ) SPFand framed articleof chargeagainstthe petitioner and the samewas served on him vide proceedings dated 22.O2.2O1O. The petitionersubmitted his representation, however, the same was found not satisfactory and unconvincing, an enquiry was
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ordered and the enquiryofhcerhas conducted the enquiry as per the procedure laid down underAPCS (CC&A) Rules, 1991 . The enquiry officer hasrecordedthe statements of witnesses i.e., Asst. Commandant, SPF, TTDand the petitioner did not choose to cross- examine him. In thecross-examinationof enquiry officer to question no. 1 that why thepe titionerobtained medical rest directly from the hospitaiwithout reportingto the SPF Units. The petiLioner replied that he does notknow the rule. It is contended thatthe enquiry officer conductedenquiry in accordancewith the rules and there are noprocedural violations.
3.5. The enquiryofhcersubmitted report and found that the petitioner was guilty of thecharge andthe same was proved' Basing on the findings ofthe enquiry officer, show-causenotice calling for explanationfrom the petitionerwas issued and the petitioner submitted his explanationstating that he availed194 days ML from O5.O9.2O08AN to 18.03.2O09due to his ill-health and further, availed another205 days ML from 19.O3'2009 to 22.lO.2OOg. The 1$respondent,on due appreciationof entire file, enquiry officer reports andrecords, had imposedpunishmentof removal from serviceunder Rule (ix) of APCS {CC&A)Rules1991 and ordered thatunauthorizedabsentperiod from 19.03.2009 to 22.1O.2OO9 FNi.e., total217 daysis treated as LWP-
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3.6. Petitioner preferred appeal to the DIG, SPF and the same was rejected vide order dated 23.01.2012 by agreeing with the finding of disciplinary authorit5r on the ground of long unauthorized absence. Petitioner preferred revision to Director General and the Director General after examining the issue of Overstayal (OSL) and the fake medical documents submitted by the petitioner, rejected the revision vide order dated 16.04.2012.
3.7. It is further contended that G.O.Ms.No.26O, dated 04.O9.2003, has no application to the facts and circumstances of the case. It is further stated that apart from availing 224 days of medical leave by following irregular procedure, 2l days of desertion coupled with unauthorized absen ce for 2I7 days and therefore, petitioner is not entitled to seek benefit under G.O.Ms.No.260. It is also contended that having put-in 12 years of service in SpF, the petitioner cannot say that he was unaware of prescribed procedure for extension of medical leave on medical ground. Further, the medical documents enclosed in support of his daughter,s illness pertains to a different period and are irrelevant to his period of overstayal and petitioner could not substantiate his claim of illness with such documents, medical prescriptions, and diagnostic reports for such prolonged period of illness. It clearly shows his irresponsibilit5r and furtlrer, if such cases have to be dealt sternly,
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otherwiseit wouldspreada cancerousgrowthof indiscipline and overstayalwithout adequate justification among the personnel' threateningthe very foundationof the force and thus' prayedfor dismissalof the writ Petrtton
4 HeardlearnedcounselSriC.SaiReddyforthepetitionerand learnedSpecial Government PleaderSri M'V Rama Rao for respondents.
Consideration:
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completion of medical Ieave extension, petitioner was supposed to report duty on 18.03.2009. However, petitioner did not report arrd thus, be became OSL from ML extension and also completed the desertion period of 21 days and, therefore, letter dated 15.04.2009 dent to the Commandant (RZ) SPF to declare the petitioner as deserter from the Force. Consequently, the Commandant passed orders dated 18.05.2009 declaring the petitioner as deserter w.e.f. 19.O3.2OO9 and the sarne was communicated to the petitioner through registered post dated 20.06.2009. However, the same was returned with an endorsement 1:n-served'.
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g. It is also relevantto refer to the counterfiled by the respondents,wherein they categoricallystated that he adopted irregularprocedure while availingsick leave having put-in 12 years of servicein SPF and that he had enclosed documents pertaining to hisdaughter's illness, which pertainsto a different period and is irrelevantto his period of overstayal.It is also contended that an armedforce will be unable to functionif individual members remainabsent after availing leave in suchirresponsiblemanner' Respondentshave also contended that G.O.Ms.No'260,dated tqo.oO.rooa has no application to the facts and circumstances of
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the present case. No reply has been filed by the petitioner to the counter filed by the respondent-Department.
I 1. On analysis of facts and material placed on record, what emerges is that admittedly, the petitioner was on sick leave for prolonged period and an enquiry was conducted and the charges were proved. The petitioner failed to explain the reasons for nonreporting dut5r on 19.O3.2OO9 after completion of extended sick leave. Further, petitioner did not follow the rules for extension of sick leave and thus, there is clear latches/default and irregularity on the part of the petitioner.
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and hat the same was proved. Further,petitioner was on proionged sick leave and did not report to duly after completionof extended sick leave. Thus, the abovejudgment reiied by the learned counsel for petitioner does not come to the aid of the petitioner.
L4. Pending miscellaneous applications, if any shallstand closed
//TRUE COPY//
SD/. K. AMMAJI ASSISTANT REGISTRAR ',/'v^/ SECTION'OFFICER
To
1 Two CCs to GP FOR SERVICES ,High Court for the State of Telangana,at Hyderabad [OUT] 2. One CC to SRl. C. SAI REDDY, Advocate [OPUC] 3. Two CD Copies
BIU GJP
b
HIGH COURT
DATED:0811212023
1 e STATe oiT
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* Drspl.1c,
ORDER
WP(TR).No.531 o12017
DrsMrssrNc THE WRIT PETTTTON (TR) WITHOUT COSTS G)qi'' I
3 issues framed by the court
Whether the removal of the petitioner from service as a Special Protection Force Constable for unauthorized absence and desertion is sustainable in light of irregular medical leave extension.
Whether the principles of natural justice were violated during the departmental enquiry and subsequent disciplinary proceedings against the petitioner.
Whether the petitioner is entitled to be reinstated into service with consequential benefits by setting aside the impugned removal orders.
Colour shows how this judgement treated each authority
Krushnakant B. Parmar vs. Union of IndiaReferred¶100
Krushnakant B. Parmar vs. Union of India
A. Balasubramanyam
The Commandant, (RZ), O/o Director General, Special Protection Force (SPF), Secunderabad
The Deputy Inspector General, O/o Director General, Special Protection Force (SPF), Secunderabad
The Director General, Special Protection Force (SPF), Secunderabad
The Government of A.P.
Laxmi Narayana Aishetty
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
