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N.V. Siva Rama Prasad v/s State of Andhra Pradesh rep. by the Principal Secretary, Panchayat Raj & Rural Development Department & Others

Company & Directors' Information:- PRASAD CORPORATION PRIVATE LIMITED [Active] CIN = U32301TN1994PTC028160

Company & Directors' Information:- PRASAD AND CO. PRIVATE LIMITED [Active] CIN = U67120DL1995PTC068088

Company & Directors' Information:- M. PRASAD AND CO LIMITED [Active] CIN = U67120WB1999PLC090325

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- S R RURAL INDIA DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U80302TN2005PTC058249

Company & Directors' Information:- H PRASAD & CO PVT LTD [Strike Off] CIN = U51109WB1944PTC011797

    Writ Petition No. 8318 of 2015

    Decided On, 29 February 2020

    At, High Court of Andhra Pradesh


    For the Petitioner: Karri Murali Krishna, Advocate. For the Respondents: G.P. for Panchayat Raj Rural Dev. (AP).

Judgment Text

1. Seeking to declare the proceedings in Rc.No.SA4/1683/HR/2013, dated 31.01.2015, of the 5th respondent as illegal, this writ petition is filed by the petitioner.

2. The petitioner was appointed as Community Surveyor by a letter of appointment dated 24.01.2009. As per the terms and conditions of appointment, the post is a fixed long term tenure employment contract for a period of five years, which is renewable at a stretch of five years, till the individual attains his 58 years. The appointment order came into effect on 01.01.2009. After completion of the initial contract period, the 2nd respondent allowed the petitioner to continue to work without any interruption. By issuing a letter of renewal of contract dated 26.04.2014, the 2nd respondent extended the contract till 31.12.2017. While things stood thus, the 4th respondent by an order in the proceedings reference No.SA-4/1683/2013, dated 17.03.2013, suspended the petitioner and another Community Surveyor with effect from 18.03.2013 alleging that they have violated the norms specified under Rules 7.1, 7.2, 7.4, 7.13 and 7.28(i)(vi) of the Terms and Conditions of the employment of SERP Employee, 2009. Subsistence allowance was to be paid to them from time to time as per the Rules and it was paid till August, 2014. Though the petitioner was placed under suspension, the 2nd respondent did not initiate any disciplinary proceedings. Neither was any show cause notice issued nor any explanation called for from the petitioner. No enquiry officer was appointed. Under those circumstances, the petitioner submitted a representation to the 2nd respondent asking him to conduct enquiry into the allegations, if required. In the meantime, the Project Director, by proceedings, dated 23.07.2013, passed final orders by imposing punishment of stoppage of one increment of pay without cumulative effect by revoking the suspension order. As such, final decision was taken on the allegation made in the suspension order. After revocation of suspension, the petitioner was waiting for posting order. The 5th respondent submitted proposals to the 2nd respondent. The 2nd respondent by letter No.4288/SERP/HR/II/Kadapa/13, dated 18.11.2013, informed the 2nd respondent that the powers of re-positioning and to affect transfer are delegated to the 5th respondent and that therefore the 5th respondent can issue the transfer and posting order. In accordance with the said instructions, the 5th respondent by proceedings in Rc.No.SA4/1683/2013, dated 03.12.2013 transferred the petitioner and posted him at Mydakur from T.Sundupalli. In the meantime, on the ground that one P.Sailaja Devi, APM (HR), over phone, was questioning her as to why disciplinary action shall not be taken against the petitioner, out of rustration, petitioner submitted a representation to return the Surveyor license to him and also pay compensation for the mental agony caused to him. Thereafter, his joining report was not accepted and the person working as Community Surveyor at Mydukur was not given the relieving order. Thereby, the petitioner submitted a representation to the 2nd respondent on 07.02.2014. The 5th respondent once again through proceedings in Rc.No.1683/HR/2013, dated 28.02.2014, transferred him from Mydukur to T.Sundapalli and one P.Viswanatham working at T.Sundupalli was transferred to Mydukur. While the petitioner was ready and willing to join at Mydukur, his joining report was not accepted. Surprisingly, the 5th respondent by proceedings in Rc.No.A8/2683/2013, dated 14.03.2013, reported to the District Collector complaining that he did not join the duty at Mydukur and that therefore he was transferred back to T.Sundapalli. Even at T.Sundapalli, he again gave a representation on 01.10.2014 requesting him to allow him to join duty. But the 5th respondent by a letter in Rc.No.1683/CS/2013, dated 11.11.2014, informed him that his joining report cannot be accepted till appropriate orders are received from the 2nd respondent on the representation submitted in that regard. In view of the same, the petitioner was waiting for appropriate orders to be passed by the 2nd respondent. To his utter surprise, the proceedings of the 5th respondent in Rc.No.SA4/1683/HR/2015, dated 31.01.2015, removing the petitioner from service with immediate effect, were received on the ground that he was absent from duty for more than 45 days. Immediately, he gave a representation to the 2nd respondent on 03.02.2015, but no orders are passed. The 2nd respondent framed terms and conditions for employee, 2009 and as per Condition 6.6, if any employee is continuously absent for a period of 12 months, it is deemed that he is ceased to be an employee of SERT. But the impugned order reads as if as per condition 6.6 an employee will automatically cease to be in employment if he remains absent from duties for 45 days. The absence of the petitioner cannot be treated as unauthorised absence since it is due to the above mentioned reasons. Hence, the writ petition.

2-A. In the counter-affidavit, the 5th respondent, while admitting the appointment of the petitioner, the terms of appointment, also about the suspension of the petitioner while working at T.Sundapalli and revocation of the suspension, contends that after the petitioner was posted as Community Surveyor, Mydukur, he did not join duty and he was given posting orders at T.Sundupalli Mandal with effect from 28.02.2014. He denies the fact of not accepting the joining report of the petitioner and contends that hence, it has to be considered that the petitioner was absconding duties from 28.02.2014. The entire matter was brought to the notice of CEO, SERP, AP, Hyderabad and the CEO, SERP, has instructions to take action as per the special provision of 8.7 of the terms and conditions of the employees-2009. As such petitioner was removed from service for dereliction of duties and for absconding from duties. The petitioner has not joined in Mydukur as Community Surveyor. The APM (HR), DRDA, Kadapa, has reported that the petitioner has telephoned to APM (HR) on 05.01.2014 and scolded her and threatened her with indecent language. Based on the said complaint, a Memo was issued to the petitioner calling for explanation. Further, after approaching the Project Director, DRDA, Kadapa, the petitioner has been transferred and posted as Community Surveyor in T.Sundupalli vide proceedings in Rc.No.SA4/1683/HR/2013, dated 28.02.2014. The petitioner did not join at T.Sundupalli, showing disobedience and negligence in obeying the orders of superior officers. Hence, the impugned order.

3. Heard the arguments of Sri Karri Murali Krishna, learned counsel for the petitioner; Government Pleader for Panchayat Raj and Rural Development; and Sri Ravi Teja and Ms.Padiri, learned counsel.

4. From the counter, it can be understood that the unauthorized absence was reckoned from the day on which the petitioner was directed to join at T.Sundupalli. It is apparent that no action was initiated for the petitioner not joining at Mydukur. In the said background, the contentions with regard to the petitioner not joining at Mydukur, does not receive support.

5. The case of the petitioner is that when he was posted to Mydukur, the person working at Mydukur was not relieved and hence, he could not join. The counter does not spell that the said person was relieved in order to facilitate the petitioner to join his post at Mydukur. Though it is orally stated that it is only after the petitioner gives his joining report that the said individual would be relieved, no support was drawn from any such Rule or procedure. With a prudent person’s understanding, it can be said that only when a person holding a post gets relieved, the person posted to hold the said post would have an opportunity to join the said post. It is only when a clear vacancy is available that a person would be able to join in a particular post. Hence, in that regard, the argument of the petitioner’s counsel gains strength.

6. From the fact that the termination proceedings are only in respect of petitioner not joining the post at T.Sundupalli, it is clear that the respondents have not considered the non-joining of the petitioner at Mydukur as any misconduct or unauthorized absence. In the light of the circumstances, under which the petitioner could not join Mydukur and in the light of the fact that the said conduct of the petitioner was not taken to task, the contention of the petitioner’s counsel that he was not permitted to join T.Sundupalli in spite of giving a joining report, also merits acceptance.

7. The series of actions against the petitioner in which a suspension order was issued on 17.03.2013, which was revoked by imposing a minor penalty without any enquiry, and transferring the petitioner to Mydukur in stead of resuming him in the place at which he was working by the date of suspension, would suggest some mala fides on the part of the respondents. The subsequent events also support the said assumption, as the respondents did not take grievance for the petitioner not joining at Mydukur and they do not even treat the said period as unauthorised absence. The letter, dated 07.02.2014, was addressed by the petitioner to the Chief Engineer, SERP Office, Hyderabad and sent through post, explaining all the events, is also on record.

8. Apart form all the above, the undisputed fact is that during the period in which the petitioner was supposed to work at Mydukur, he was paid subsistence allowance. There can absolutely be no r

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eason for paying subsistence allowance to the petitioner after revoking suspension and after imposing punishment and after giving the orders of posting at Mydukur. The proceedings, dated 11.11.2014, only state that the petitioner did not join at T.Sundupalli on 28.02.2014, but there were no proceedings issued for the petitioner not joining at Mydukur. 9. In view of all the above facts and circumstances, which are evident from the record, the only conclusion that can be drawn is that the petitioner is wantonly put to harassment by the respondents, which resulted in issuance of the impugned termination proceedings. 10. Hence, the impugned proceedings in Rc.No.SA4/1683-/HR/2013, dated 31.01.2015, issued by the 5th respondent are not sustainable and are hereby set aside and the respondents are directed to forthwith to reinstate the petitioner into service with all attendant benefits. With the above observations, the Writ Petition is allowed. As a sequel, the miscellaneous applications pending, if any, shall stand closed.