Kumari C. Kameshwari Vs Telangana State Women Cooperative Development Corporation

Kumari C. Kameshwari, D/o Late Satyanarayana^{aged about 56 Years, Occ Jr} Assistant TSWCDC. R/o R.No. 2 LIG 31,1st floor,^{Housing Board Colony,} KukatPallY

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..PETrroNER

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AND

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Telangana State Women Cooperative^{DevelopmentCorp91qtio.1,} Represented by its Manager Director D. No^{1335/H, Road No 45, Jubilee} Hills, Hyderabad -33 Telangana.

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The State of Telangana, Rep by its Principal^{Secretary, Women Development} and Child Welfare Department, Secretariat,^Hyderabad

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(R2 is impleaded as per C.O Dt. 17lOBl2O23 in lA.No.O1l2023) ___

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia^{praying that in the} circumstances stated in the affidavit filed therewith, the^{High Courtmay be} pleased to issue a writ, order or direction more particularly one in the^{nature of writ} of tMandamus, declaring action of the 1st^{respondent in issuing the Proc No} 546MCDClE1l19, dated 01.O5.2021, terminating^{the petitioner from serviceas} highly illegal, arbitrary and in violation of^{Article 14 and 16 of the Constitutionof} lndia, consequently set aside the^same.

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(As per Court order dt: 03/03/2025 Vide lA.No.1l2025 in^{WP.No.3938120221}

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lA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circtmstances stated in the affidavit filed irr support of the petition, the High Court rnay be pleased to reinstate the Petiticner as Jr. assistant in the Respondent organization within a period of two weeks.

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Counsel for the Petitioner: SRI S.KRISHNA SHARMA

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Counsel for the Respondents: SRI ABU AKRAM, S.C. FOR TGWCDC The Court made the following: ORDER

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!rt

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HON'BLE MRS. JUSTICE SUREPALLI NANDA

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ORDER:

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Heard Sri S. Krishna Sharma, learned counsel appearing on behalf of the petitioner and Sri Abu Akram, learned Standing Counsel for Telangana Women Cooperative Development Corporation^(TGWCDC), appearing on behalf of respondent No.1.

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as under:

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"...to issue an appropriate writ, order or direction more particularly one in the nature of writ of Mandamus, directing the respondent to reinstate the^petitioner in the services of the Respondent organization and to^pass such other order or orders as the Hon'ble High Court may deem it fit and proper in the circumstances of the case".

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As oer the orders of this Court dated O3.03.2O25 vide

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I.A. No.1 of 2O25 in W.P. No.3938 of 2O22 the oraver of the writ oetition is amended as follows:

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*It is therefore prayed that this Hon'ble Court may be^pleased to issue a writ, order or direction more particularly one in the nature of writ of Mandamust declaring action of the^{1't respondentin issuing the}

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Proc. No.546/WCDC/EL/19, dated 01-0S.2021, terminating the petitioner from service as highly illegal, arbitrary and in violation of Articles t4 &16 of the Constitution of India, consequently set aside the same and pass such other order or orders as may be deemed fit and proper in the circumstances of the case".

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support of the present writ oetition is as under:

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The petitioner was appointed as VDC II at Ranga Reddy in June, 1991 and worked upto 1993. The petitioner,/as posted at DMSVK, Kukatpally as a matron in 2003 and :;ubsequenily transferrecj to head office, Hyderabad as Librarian. Thereafter the petitioner was promoted as an Assistant Manager and transferred to DMSVK chilkur during the year 2oo7. The petitioner was issued with charge memo on 18 08.2012 on instigation of Matron Nirmala. The petitioner was demoted vide proceedings dated 10.09.2013 from the rank of Matron to Jr. Assistant. The petitioner submitted a represenl:ation dated 13.03.20L4 to the respondent corporation to retain Ure petitioner as Assistant Manager. The petitioner was issued show cause

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notice dated 06.06.2020 seeking explanation for absconding from duty since 05.02.2019 till 06.06.2020 at DMSUK Sanga Reddy and again the petitioner was absent from duty from 17.02.2021 to 01.03 .2O2L Therefore, the respondents terminated the services of the petitioner vide Prc.No. 546/WCDC/EL/L9, dated 01.05.2021. Aggrieved by the^same, the petitioner approached the Court by filing the^{present writ} petition.

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4. PERUSED THE RECORD

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(A) The impugned order vr'de Proc. No.546/ WCDC/ E1l19, Dated O1.O5.2021 of the Managing Director. Telanqana State Women Cooperative Development Corporation, Hyderabad is extracted hereunder:

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TETANGANA STATE WOMEN CO-OPERATIVE DEVELOPM ENT CORPORATION, (A Govt. of Telangana Undertaking) Regd.No. TAB 616 D/No./1335/H, Road^No.45, I ubilee H ills, Hydera bad-33. Ph.^NO. O4O 235497^{| L}

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Smt. D.DIVYA, I.A.S., MANAGING DIRECTOR

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Proc. No.546/WCDC/ELlt9, Dt: 01-05-2O2L

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Su b :^{-TSWCDC-EsII-} Ku m. C. Ka meshwa ri, J r.Asst- Absconded to duties-Termination orders issued - Reg.

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Read: ( 1). Proc.No.546/WCDCIEzl19, Dt: 17-11-

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?-O2O of MD.,TSWCDC., Hyderabad.

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(2). Joining report of the individual, Dt: 5-l-zl.

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(3). Joining report of the individual, Dt: 2-3-21. (,1). T / o Notice. No. 546/WCDC/E2| 19,

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Dt:20.03.2021.

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ORDER:

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With reference to 1 cited, Kum. C.Kamershwari, Jr. Asst., is considered to join to duties from 21-11-2020 after ascendance w.e.f., 05-04-2019 at DMSVK, Sang,rreddy and posted ,at Head office with a warning "if the individual is repeats absence she will be terminated"

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In this regard, the individual was rep(:ating the same attitude and again absconded to durties from 26.!t.2O2O to 04.01.2021 & from L7-O2-ZL'to O1-0321 without taking proper prior permission (applied CL for 5 days & 4 days respectively) & abscorrded even warned, but the individual was repeated same behavior within one week of consideration for rejoin to duties.,

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Vide reference 4th cited explanation:alled for, showing gross negligence-within (7) days, but l.ill to date reply was not submitted by the individual which slrows gross negligen,ce in duties and disobeying the orders of the under signed.

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Therefore the individual services are hereby terminated with immediate effect

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Scl/- D.Divya Managing Director

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To

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Asst. Gener,al Manager

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Kum.C. Kameshwari, Jr. Asst., Head Office

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(B) Counter affidavit has been filed on behalf of

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respondent No.1 and in oarticular oara No.1O is extracted

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hereunder:

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"10. It is further submitted that, the^{petitionerwas called} upon to explain as to why disciplinary action should^{not be} initiated against her for having disobeyed the^instructions given to her by the superior officers. The^petitioner was repeating the same habit of absconding the duties from 26.11.2020 to 4.O1.2O21 and from^17.O2.2O21 to 1.O3.2O21 without takino^{proper prior} Permission in spite of warning. The^petitioner failed to^{give any} proper explanation. The petitioner repeated the same behavior within one week of the date of^joining her duties. After giving multiple opportunities to the^petitioner, the respondent corporation having been left with^no choice issued the impuoned Proceedinos dated^: O1.O5,2O21 terminatino the services of the^petitioner with immediate effect for oross negligence of duties bv abandoning her duties from 26.11,.2O2O to O4.O1.2O21 and from 17.O2.2O21 to O1.O3.2O21 without takino prior permission. The^petitioner had applied for C.Ls for 5 days and 4 days respectively and further continued to abandon her duties without^prior permission from her superior officers. The petitioner, in spite of multiple warnings and a fair consideration towards her to rejoin the duty, repeated same behavior within one week of rejoining her official duties. Keeping the same in mind, her application to reinstate her again as Junior Assistant was not considered".

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DISCUSSION AND CONCLUSION

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The learned counsel appearing on behalf of the^petitioner submits that the services of the petitioner had been terminated unilaterally without conducting any enquiry without providing any opportunity for hearing, in clear violation of principles of

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justice. The learned counsel further submits that in view of the impugned order vide proceedings No.546lW CDC/E:L/2O19, dated 7'5'2021 that had been passed without conductirg any enquiry without pro',ziding a reasonable opportunity of personal hearing to the petitioner and therefore the impugned orJer vide proc. No' 546/wcDC/Er/rg, dated 01.05.202r needs to be set aside and the petitioner needs to be reinstated as a lunior Assistant.

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6' The rearned Standing counser appearing on beharf of respondent No.1 placing reliance on the averments; n-1s6" in the counter affidavit filed on behalf of the respondents r;snlsnds that the petitioner absconded from duties frequerily without obtaining the required permission as per rules but however does not dispute the fact that the order impugned datecl 01.05.2021 had been passed by the 1't respondent without issuing any notice to the petitioner. The rearned Standing counsel fairry admits that the impugned order had been passed with procedurar rapses. The rearned standing counser appearing on behalf of respondent No.1 placing reliance on the averments made at para No.10 0f the counter affidavit contends that the conduct of the petitioner itself is unbecoming on the part of the employee, since the petitioner is in the habit of absconding from

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duties regularly and therefore, though admittedly there had been procedural lapses in issuing the impugned order vide Pro.No. 546/WCDC/EL/79, dated 01.05.2021 terminating the services of the petitioner by the 1't respondent herein, the conduct of the petitioner is to be necessarily taken into consideration prior to passing of orders in the present writ petition.

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No.24 observed as under

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"24. The termination of the apoellant without an inquiry or hearing was illegal and invalid. In the normal course, we would have set aside the termination and directed reinstatement with consequential benefits, reserving libefty to the employer to initiate disciplinary proceedings. But the peculiar facts of this case require us to adopt a slightly different approach to do complete justice between the parties.

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We accordingly allow this appeal, set aside the judgments of the learned Single Judge and the Division Bench. The writ petition filed by the appellant before the High Court is allowed, setting aside the termination order dated 7-3-2002. The respondents are directed to reinstate the appellant with continuity of service and other consequential reliefs (except salary for the period 7-3-ZOO2 till date).

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workinqsince 1993 for the respondents.

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under

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rn Palak Modi's case (supra), this court reviewed various precedents and recorded the following conclusion:

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"The ratio of the above noted judgment:; is that a probationer has no right to hold the post and his service can be terminated at any time during or at thre end of the period of probation on account of general un:;uitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the prob;rtioner or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to r:erminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of

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of the rules of natural justice.,,

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In view of the law laid down in the afore-mentioned judgments, it must be held that the services of the appellants could not have been terminated without holding a proper enquiry and giving them an opportunity of hearing,,.

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"In the Judgment of the Apex Court of India in Civil Appeal No. 4531 of 2OO7, dated 13.O8.2OO8 between

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observed as under:

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"11) From the above decisions, the following principles would emerge:

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i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

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ii) lf an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the.Enquiry Officer, lf the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

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iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. The workman/ delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

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iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry

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report and all connected materiats relied 9n^{b-y the enquiry officer to enable} him to offer his views, if any.

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A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The department,s witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Co.rrt in the writ proceedings, those avermerrts were specifically controverted in the replv affidavit filed by the department. Mere cenial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by th: unqriiy officer to the disciplinary authority,^'the respondent herein was furnished *iif, the copy of the said report along wittr alt the relied upon documents. When alt these infirmities were specifically pleacled and brought to the notice of the appellate authority (i.e. Forest Conservator), he rejected the same but has not poirrted the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the upp"ilut" authority has also committed an error in dismissing the appeal of the respondent.,,

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In the present case the 1$ respondent did not conduct any enguiry in clear viotation of the principles l,aid down by the Apex court in the Judgment referred to and extracted above.

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fn the Judgment reported in (2O12) 5 SCC 242 between Vijay Singh and State of Uttar pradesh and Others in particular paragraph Nos. 11, 13, 14 and 15, it is observed as under:

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"11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of Rules 1991. Integrity of a person can be withheld for sufficient reasons at the time of filling up the Annual Confidential Report. However, if the statutory rules so prescribe it can also be withheld as a punishment. The order passed by the Disciplinary Authority withholding the integrity ceftificate as a punishment for delinquency is without jurisdiction, not being provided under the Rulers 1991 , since the same could not be termed as punishment under the Rules. The rules do not empower the Disciplinary Authority to impose "any other" major or minor punishment. It is a settled proposition of law that punishment not prescribed under the rules, as a result of disciplinary proceedings cannot be awarded.

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The Authority has to act or purport to act in pursuance or execution or intended execution of the Statute or Statutory Rules. (See: Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar, The Municipal Corporation, Indore v. Niyamatulla; J.N. Ganatra v. Morvi Municipality, Morvi; and Borosil Glass Works Ltd. Employees Union v. D.D. Bambode")

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L4. The issue involved herein is required to be examirred from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. (Vide : Bachhittar Singh v. State of Punjab; Union of India v. H.C. Goel; Mohd. Yunus Khan v. State of U.P.; Coal India Ltd. & Ors. v. Ananta Saha)

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Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules.

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Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bourrd to give strict adherence to the said rules;. Thus. the order of ounishment beino orrtside the nrrrvievu of the statutory rules is a nullity and cannot be enforced against the appellant."

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In the present case the disciplinary Authority failed to adhere to the statutory rules while passing the impugned order's terminating the services of the petitioner with immediate effect arbitrarily.

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The Judgment of the Hon'ble Apex Court of India in Civil Appeal No. 2982 of 1989 dated 1.7.03.1993 between Union of India & Others Vs. Giriraj Sharma, wherein it is observed that the respondents therein had overstayed his leave period though not willfully and petition was allowed with a direction to inrpose minor punishment to the respondents therein.

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t2. The Judome of the Aoex Coult reoorted in (2O12) 3 SCC 178 between Krushnakant B.parmar v as under:

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'16. The question whether^{'unauthorised} absence from duty' amounts to failure of devotion to dutv or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compellino ci rcumstances.

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In a Departmental proceedinq, if allegation of unauthorised absence from duty is made, the disciplinarv authority is required to orove that the absence is wilful. in absence of such findino, the absence will not amount to misconduct.

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In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority. affirmed by the Apoellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant, has not worked for a long time we direct that the appellant be paid 50o/o of the back wages but there shall be no order as to costs.

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13. The Apex court in its Judoment reported in oloa Teilis

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observed as under :

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*32.....The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to'livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means

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of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaninqfulness but it would ma ke life impossible t-o live. And yet, such deprivation would not have to be in accordance with the procedure establi shed by law, if the right to livelihocd is not regarded as a part of the right tc, life. That, which alone makes it possi ble to live, leave aside what makes tife liveable, must be deemed to be an in tegral compone nt of the right to life. Deprive a person of his rioht tohiE 1ife....."

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observed as follows:

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The findings on the charges given by a third person like the enq uiry officer, particularly when they are not born,e out by the evidence or are arrived at by overlooking the ev idence or misccrnstruing it, could themselves constitute new unwarranted imputations. What is further, whren the proviso to the said Article states that "where it is proposed after such inquiry, to i mpose upon him any such oenalty,

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such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed", it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage fottows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penatty and of considering the repty to the notice and deciding upon the penatty. What is dispensed with is the opportunity of making representation on the penatty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was atways there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred titt the second stage viz., the stage of considering the penatty. Titt that time, the conctusions that the disciptinary authority might have arrived at both with regard to the guitt of the emptoyee and the penatty to be imposed were onty tentative. Att that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the emptoyee against the enquiry officer's report woutd be considered. Now, the disciptinary authority has to consider the representation of the emptoyee against the report before it arrives at its conctusion with regard to his guitt or innocence of the charges.

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Hence it has to be held that when the enquiry officer is nat the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to

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the charges levelled against him. That^{righ;t is a part} of the employee's right to defend himself^against the charges levelled against him. A^den,ial of^the enquiry officer's report before the^disciplinary authority takes its decision on the charges,^{is a denial} of reasonable opportunity to the employee: to^prove his innocence and is a breach of the^{principles of} natural^justice.

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In the present case no enquiry was conducted nor^any enquirv report was furnished to the^petitionetl.

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This Court in a iudoment reoorted in Ra^{ohubir Sinoh} V. General Manaoer, Haravana Roadwavs, Hissar at^paras 3O in Civil Aooeal No.8434/2O14. observed^{as follows:}

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The appellant workman is a conductor in the respondent-statutory body which is an undert;lking^under the State Government of Haryana thus it is a^potential employment. Therefore, his services could not^have been dispensed with bv^passing an order of termination on the alleged oround of unauthorised absence without considering the^leave at his credit and further examining whether he^is entitled for either leave without tvaoes^or extraordinarv leave. Therefore, the order of termination passed is against the fundamental rights guerranteed to the workman under Articles L4, L6, 19^{ancl 21} of^the Constitution of India and against the statutory^rights conferred upon him under the Act as well as against the law laid down by this Court in the cases referred to supra. This important aspect of the case has not been considered by the courts below. Therefore, thr: impugned award of the Labour Court and the^judgment & order of the High^,3ourt are liable to be set aside.

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rn the present case the orde. impuoned had been passed without conductinq anv enquiry and the same is clearlv admitted at para '10' of the counter filed bv respondent No.1.

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16 The e.stwhile Hiqh court in the iudoment dated 27.o9.201o in Prameeta and others v ApsRTC, Hvderabad and others reported in 2o11L3) ALD 641 at oara 13 observed as under: "..

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aa iti e di in authoritv to Earefuttv assess t quantum suitt hetd tished aqain st the detinquent em ald then consider the ADDropriate ou nishment that IM e choice punishment, hence, has to meet the ndards of fairness. t shatt too h or or t. lt shoutd be ir, adeouat e and orooorti onate. Thr5 exercrse. apparentI y was not carried out bv either the disciptinarv or the Ao pettate Autho rity. However, in mv opinion, for that part of the misconduct hetd estabtished aeainst Sri Pandu, perhaps. imposition ofam inor punish ment of of pav bv two stages woutd have the ends of i ustice".

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rn the present case the choice of ounishment imposed was neither fair, adeouate nor proportionate.

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L7. The Judoment of the Aoex Court reported in 2014(9)

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SCJ^paqe 91 between Raohubir Sinoh v General Manaoer, Harvana Roadwavs, Hissar. Para 35 reads as under:

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"35. tiaving regard to the facts and circumstances of this case/ we are of the view that it is important tc, discuss the Rule of the 'Doctrine of Proportionality' in ensuring preservation of the rights of the workman. The principle of 'Doctrine of Proportionality' is a well recogn zed one to ensure that the action of the employer against emplc,yees/workmen does not impinge their fundamental and statutory rights. The above said important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/ workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.

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been totally iqnored.

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The fact as borne on record that admittedly the impugned order vide Proc. No.546lWEDC/Et/L9 dated 01.05.2025 had been passed in clear vriolation of the principles of natural justice without providing an opportunity of personal hearing to the pet'r(tioner, without conducting any enquiry, hence this Court ,opines that the order impugned is in clear violation of principles of natural justice. Admittedly the impugn,ed proceedings

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does not indicate any findings that the absence of the petitioner was deliberate and willful since admittedly no enquiry had been conducted to establish that the absence of the petitioner from duties had been' deliberate and wanton.

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Takinq into consideration:-

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(a) The aforesaid facts and circumstances of the

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case

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(b) The submissions made by the learned counsel appearing on behalf of the petitioner .and learned standing counsel for TGWcDc, appearing on behalf of tlie respondent No.1,

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(c) The observations of the Apex Court in the various Judgments (referred to and extracted above),

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(d) The averments of the counter affidavit filed on behalf of the respondent No.1 in particular para No.1o (referred to and extracted above),

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( d

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(e) In the light of the discussion and conclusion as arrived at para Nos.S to 18 of the present Judgment,

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The Writ Petition is allowed. The orcier impugned dated 01.05.2021 issued by the 1"t respondent is set aside. The respondents are directed to reinstate the petitioner with continuity of service from the date of order impugned dated 01.o5.2o21 and release ail r:onsequentiat benefits as per petitioner's legal entiflement tiil as on date, within a period of four (4) weeks frorn the date of receipt of a copy of the order. However, there shall be no order as to costs.

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Miscellaneous petitions, if dfly, pendingr, in this Writ I it Petition, shall stand cto_Se_d. I I Sd/. P. PONNA^KRISHNA ASSISTANT

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//TRUE COPY//

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OFFICER

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