132521

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD

(Special Original Jurisdiction)

WEDNESDAY, THE EIGHTH DAY OF OCTOBER

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

WRIT PETITION NO: 29317 OF 2023

Between:

Vankanavath Somani, Sio. Vankanavath Pakeera, Aged about Major, Rank:

Constable (GD), Occ. Shashastra Seema Bal, Regt. No.120773959, Unit 69th

BN Currenily Rl/o. Building Thanda, Kanchiraju Pally, Chandan Petmandal,

Nalgonda, Telangana PIN - 508248

...PETITIONER

AND

1 . Union of lndia, Rep. by Director General, Sashastra seema Bal, Block-V (East),

R.K. Puram, New Delhi-66

2. The Commandant, 69th Battalion, SSB, Rungdung Basti, Mata Golai, Rhenock'

East Sikkim (Sikkim) 737133

3. The Commandant, (PERS-Il), FHQ SSB' New Delhi

4. The Commandant (Admin), FTR Hqrs, SSB, Siliguri, West Bengal

5. The Deputy Commandant (Admn), SHQ, SSB, Gangtok, Sikkim

...RESPONDENTS

petition under Article 226 ot the constitution of lndia praying that in the

circumstances stated in the affidavit filed therewith, the High Court may be pleased to

issue Writ, order or direction, one more particularly in the nature of a writ of Mandamus

declaring the action of the Respondents more particulady the Respondent No.2 in

issuing order No.SRC/PF/CT(GD)A/.S/69 Bn/SSB/RGPi2o2oI8159-69 dated 08-06-

2021 dismissing the Petitioner from the service as harsh, excessive and illegal and in

violation of Articles 14, 16 and 20 of Constitution of lndia and consequently direct the

Respondents to reinstate the Petitioner to his place in the 69th Baftalion, SSB

Rhenock.

l.A. NO: 1 OF 2023

Petition under section 151 cPc praying that in the circurn ;tances stated in the

affidavit filed in support of the petition, the High court may be p t ased to suspend the

order No SRC/PF/CT(GD)A/.5/69 Bn/SSBiRGP/2020/8159-6( dated 0B-06-2021

pending d isposal of the Writ Petition.

t.A. NO: 2 OF 2023

Petition under section 15'1 CPC praying that in the circurr ;tances slated in the

affidavit filed in support of the petition, the High court may b€ )leased to direct the

Respondent No.2 to consider the letter / extension of leave let er dated o2.o9.2O2O

addressed by the Petitioner to the Respondent No.2 pendinrl disposal of the writ

Petition.

Counsel for the Petitioner: SRI K.JAGADISHWAR REDDY

Counsel for the Respondents: SRI R.ANURAG' SC FOR CEt TRAL GOVT'

The Court made the following: ORDER

I

THE HON'BLE MRS. JUSTICE SUREPALLI NANDA

WRIT PETITION No.29317 0F023

ORDER:

Heard Sri K.lagadishwar Reddy, learned counsel

appearing on behalf of the petitioner and Sri

R.Anurag. learned Standing Counsel appearing on

behalf of the resPondents.

2 Theoetitioner aDDrOached te Cou seeino

Draver as under:

"...to issue Writ, order or direction, one more

particularly in the nature of a writ of Mandamus

declaring the action of the Respondents more

particularly the Respondent No.2 in issuing order

'lrlo.SRC/PFICT(GD)/V.S/698n

/ SsBl RGP I 2O20l81 59-69

dated 08-06-2021 dismissing the Petitioner from the

service as harsh, excessive and illegal and in violation

of Articles 14, 16 & 20 of Constitution of India and

consequently direct the Respondents-to reinstate-the

Petitioner to his place in the 69th Battalion SSB

Rhenock and Pass..."

3 ec ofe oner br rta

averntsetthe

su esentrit

daviedbthtitioer

tionasnder

i) The Petitioner was appointed as Constable (GD) in

Sashastra Seema Bal in 2019 and had an unblemished

2

SN,J

W.P I o.29317 of 2023

service record. In June 2020, the petitiont:

availed duly

sanctioned leave to attend to his seriously i I father. When

the petitioner was about to rejoin duty, the )etitioner

and

his family also developed COVID_19 symptr) ns and were

advised mandatory quarantine.

ii) The petitioner

immediately informed tt e authorities

and submitted multiple requests for medical kr, ve extension

with supporting documents. Instead of cc,r sidering the

Petitioner's genuine and unavoidable circurr jtances,

the

Respondents repeatedly directed the petitio.r_.r to report

back to duty.

i,i) Shockingly, the Respondent No.2 rl :clared the

Petitioner a "deserter,,and later dismissed hirr

.rom

service

vide order No.SRC/PF/CT(GD)/V.5/69

Bn/SSr /RGp/2020/

8159-69 dated 08.06.2021, treating the petitio I :r,s absence

as unauthorized. Aggrieved by the same, tr3 petitioner

filed the present writ petition.

I

4.P RUED THREcoRD:

SN,J

W.P,No.29317 of 2023

A)The relevant portion of the order imDuqned vide

No.SRC/PFlCT(GD)/V.S/69 Bn/SSB/RGP12020/aL59

-69 dated 08.06.2021.is extracted hereunder:

"Subject: DISMISSAL FROM THE SERVICE UNDER

RULE-21 OF THE SSB RULES-2009.

Whereas, UIN-11280487 Regt. No.120773959

CT(GD) Vankanavath Somani S/o. Sh. Vankanavath

Fakeera, Vill-Building Thanda. PO-Kachiraju Pally. PS-

Chandan Pet mandal, Distt-Nalgonda, State-Andhra

Pradesh (Now Telangana) PIN-508248 is overstaying

from leave wef. 03.07.2020 (F/N) without prior

permission of the authority and you have been

informed vide letter No.SRC/PFICT(GD)/V.5/69rnlBn

SSB/RGP/2020 / 15312-73 daled 24.10.2020 and letter

N o. SRC/PFlCr (G D )

V. S/69th Bn / SSB / RGP I 2O2O I L 6405 -

07 dated 19.l]-.2O2O to rejoin duty. But neither you

have reported to join the duty nor submitted any reply

in this rega rd.

2- And whereas, a Court of Inquiry was ordered

vide order No.SRC/PFICT (GD)/V.S/69th

Bn/SSB/RGP/202O/2324-26 dated 19.02.2021 under

Section 7aQ) of the SSB Act 2007 and on the basis of

Court of Inquiry. I am satisfied of the facts of such

absconding without due authority and the deficiency in

government property which are in your possession i.e.

Service Identity Card & Govt. kit items.

3. And whereas, Apprehension Poll was issued to

concerned Police authority to apprehended you vide

letter

N o. S RC/ PFICT( G D )/V. S/69th B n/S S B/ RG

p/

2 0 20 / 50 77

dated 10.04.2021 and No.

No. SRC/PFlCT(GD)/V. S/69thBn/SSB/RGp/20 20 / 5545

dated 18.04.2021. But neither you have surrendered

yourself before the police authority or in the unit nor

you have been apprehended by the police. Accordingly

you have been declared as deemed to be a "deserter"

vide letter

N o. S RC/ P F/ CT( G D )/V. S/ 6 9th Bn/S S B/ RG P/2 O 20 / 60 O 4 - t O

dated 24.04.202L

4

4 And whereas, you have been called upon ide this

letter No.SRC/PFICT (GD) t.S/69th

Bn/SSB/RGP/2O2O16353 dated 03.05.20 Z land

No.SRC/PF/CT (GD) VS/69tr' Bn/SSB/RGP/zt);( /7O99

dated 18.05.2021 to show cause as to why , ltion to

tentatlvely dismiss you from service for m s:onduct

should not be initiated against you under Rule-21 of the

SSB Rules 2009.

5 And whereas, you have not filed any r3ply till

date and it is presumed that you have nothirlr to put

forth in your defence.

sN,l

W.P.Nc. \93L7 ot 2023

rsig ned

of the

le 2009

-om

the

rff from

)6.2027

: from

hall be

6. Now therefore, in view of above, un<l

utilizing the power vested under section 1 1(.1

SSB Act 2007 read with Rule 179 of the SSB F

(

and Rule-21 read with Rule-18 "Dismissed you 1

service with immediate effect and also struck

the strength of 69th Bn SSB. Rhenock from 08.

(AN). The period of unauthorized absenc

03.07.2020 to 08.06.2021 (i.e. 341 days)

treated as dies-nonfor all the purposes.

7. You are at liberty to prefer an appe r to the

authority higher than the undersigned within )0 days

as per provisions given under Rule 29 of the S ! B Rules

2009"

DISCUSSIONAND CONCLUSION:-

5. Learned counsel appearing on behalf of tt e petitioner

contends that the impugned order dated 08.0€.2021 issued

by respondent No.2 was passed mechanicl ly, without

application of mind, without following due prl:edure, and

without conducting any enquiry as mandatec under the

rules. It is further contended that the ordet was issued

)

SN,J

W.P.No.29317 of 2023

without providing a reasonable opportunity to the petitioner,

and therefore, the said order of dismissal from service with

immediate effect is liable to be set aside as it is in clear

violation of the principles of natural justice.

6. Learned Standing Counsel appearing on behalf of the

respondents, on the other hand, submits that it is true that

the petitioner had rendered eight years of service as

Constable (GD). However, in vievJ of the fact that the

petitioner was called upon vide letters dated 03'05'2021

and 18.05.2021 to shot{ cause as to why an action to

tentatively dismiss the petitioner from service for

misconduct should not be initiated against the petitioner, as

the petitioner had overstayed his leave from 03'07 '2020

without prior permission of the competent authority, and

despite two letters dated 24.10.2020 and 19'11'2020

addressed by the respondents directing the petitioner to

rejoin duty, the petitioner neither reported for duty nor

submitted any explanation. Therefore, respondent No'2 was

constrained to issue the order of dismissal from service with

immediate effect. Since the said order was passed in

accordance to law, it warrants no interference by this Court'

6

SN,J

W.P. { ).29317 of 2023

and hence, the present writ petition is iable to be

dism issed.

7. Learned Standing Counsel further r; tbmits that,

though the learned counsel appearing on t

=half

of the

petitioner has orarry contended that there is i vioration of

the principles of natural justice, there arr: no specific

pleadings to that effect in the affidavit filed by t ie petitioner

in support of the present writ petition. Her ce, on that

ground also, the petitioner is not entitled to he relief as

prayed for in the present writ petition.

8. A bare perusal of the impugned c rder dated

08.06.2027, particularly paragraph No.5, cletr ly indicates

that the petitioner was called upon to show carse as to why

action should not be initiated against the prr titioner for

dismissal from service on the ground of miscor duct under

Rule 2L of the SSB Rules, 2009, vide lt: ters dated

03.05.2021 and 18.05.2021. However, the petij ioner failed

to furnish any reply even as on 0g.06.2021, arrr I fhslsfsr-s,

respondent No.2 proceeded on the presumpti( n that the

petitioner had nothing to submit in his c< fence and

accordingly passed the impugned order.

/:

7

SN,J

W.P.No.29317 of 2023

9. This Court opines that in any departmental

proceedings relating to unauthorized absence from duty, the

disciplinary authority is required to record a finding as to

whether the absence was willful. In the absence of such a

finding, this Court is of the view that the absence cannot be

treated as misconduct.

to.Inte similar crrcusta ncesthe Division Bnch

Judqmentof this Cou dated 28.01.2015 in

P.No.O57 o2015hrelvnt ron

No.11, observedasu nd er:

submitted bylearned counsel for respondent, Hon'ble

eCourt heldati D

Droceed inq,if alleoation ofnauthorized

absnce from dutvis mae. thed iscioliarv

autoritv isreouiredto Drove that the absence ts

fs find h ec

willnot amount tomrsconduct. Asence from

dutvwithout anv aDDlicationor orioDermrss1()n

att au ized en ut

doesnot alwavsean wlful.There maY be

n employee maY

different eventualities due to which a

"The department did not sanction leave or refer

him to the Medical Board for examination. Inasmuch

as the leave application dt: 26.11.2009 was within the

period of one year, upon which no order of either

sanctioning or refusing was passed, the invocation of

drastic provision of F.R 18-A and ordering deemed

resignation is not legally valid. ln the decision

."p6.tud in Krushnakant B- Parmar vs. Union of

India and another (AIR 2072 sC (Supp) 42)

ar

abstain from duty, including compelling circumstances

beyond his control like illness, accident,

hospita lization, etc., but in such case the employee

cannot be held guilty of failure of devotion to duty or

his behaviour unbecomlng of a Government servant'

\

8

w.P. \

The above decision squarely applies to 1t

case. Here, the petitioner failed to establish

the respondent remained unauthorisedl,

exceeding one year without applying for I

secondly, such unauthorized absence vr,

Therefore, the impugned order pass3

G.O.Ms.No.122 General Administratior

Department dt: 01.05.2014 was rightly set

the Tribunal. We see no reason to interfer:

said order. "

),29317 ot

e instant

rstly that

absent

-.ave and

s wilful.

I under

(oP.v)

aside by

with the

sN,J

2023

ted15.02.20L2

11. Teex Co

DA

mt

oedi20Lsin"USNANT 13. PARMARv

NIOF IND AND OTHER"tn ticu la rI te

ras 16to25, observedasunder:

"16. The question whether

.unauttorised

absence from duty. amounts to fai ure of

devotion to duty or behaviour unbr: toming

of a Government servant cannot be r ecided

without deciding the question ,rr hether

absence is willful or because of corr pelling

circumstances.

17. If the absence is the resutt of corn pelling

circumstances under which it w: s not

possible to report or perform duty such

absence cannot be held to be willfut.

18. Absence from duty without any applir:,

prior permission may amount to unaut

absence, but it does not always mear

There may be different eventualiaies due .r

an employee may abstain from duty, ir

compelling circumstances beyond his cort

illness, accident, hospitalisation, etc., but

case the employee cannot be held gjitty cf

of devotion to duty or behaviour ,,ifi".orri

Government se rva n t.

tion or

rorised

willful.

, which

:lud ing

-ol

like

N SUCh

fa ilu re

lg of a

19. In a Departmental proceeding, if alleqa tion of

unauthorised absence from duty is mJ:

-.,- the

7

9

sN,l

W,P.No.29317 of 2023

disciplinary authority is requlred to prove that the

absence is willful, in absence of such finding, the

absence will not amount to misconduct.

20. In the present case the Inquiry Officer on

appreciation of evidence though held that

,the

appellant was unauthorisedly absent from duty

but failed to hold the absence is willful; the

disciplinary authority as also the Appellate

Authority, failed to appreciate the same and

wrongly held the appellant guilty.

21. The question relating to jurisdiction of the

Court in judicial review in a DePa rtme nta I

proceedingfell for consideration before this Court

in M.B.Biilani vs. Union of India and otherS

reported in (2006) 5 SCC BB wherein thisCourt

held:

"It is true that the jurisdiction of the court in

judicial review is limited. Disciplinary

proceedings, however, being quasi- criminal in

nature, there should be some evidence to prove

the charge. Although the charges in a

departmental proceeding are not required to be

proved like a criminal trial i.e. beyond all

reasonable doubt, we cannot lose sight of the

fact that the enquiry officer performs a quasi-

judicial function, who upon analysing the

iocuments must ari'ive at a conclusion that

there had been a preponderance of probability

to prove the charges on the basis of materials

on record. While doing so, he cannot take into

consideration any irrelevant fact. He cannot

refuse to consider the relevant facts' He cannot

shift the burden of proof. He cannot reject the

relevant testimony of the witnesses only on the

basis of surmises and conjectures' He cannot

enquire into the allegations with which the

delinquent officer had not been charged with'"

22. In the present case, the disciplinary authority

failed to prove that the absence from duty was

willful, no such finding has been given by the

Inquiry Officer or the Appellate Authority. Though

t0

the appellant had taken a specific defenc

was prevented from attending duty t,

Venkateswarlu, DCIO, palanpur *ho

t

him to sign the attendance register

brought on record 11 defence exhibits ,

of his defence that he was prevented t,)

attendance register, this includes his le:

3rd October, 1995 addressed to Shri t

JD, SIB, Ahmedabad, receipts from

office of Telephone calls dated 29th Sr:

1995, etc. but such defence and evider

ignored and on the basis of irrelevant

surmises the Inquiry Officer held the i

guilty.

23. Mr. P. Venkateswarlu, DCIO, palang

was the complainant and against whom i

alleged bias refused to appear before th<

Officer in spite of service of summons. l.r

witnesses, Shri livrani and Shri L.N.

made

-no

statement against the appel ;

one of them stated that he had no kr

about absence of the appellant. Ignc,r

aforesaid evidence, on the basis of sirnr

conjectures, the Inquiry Officer held the

proved.

24. Though the aforesaid facts noticert

Ap-pellate Authority but ignoring such fact

reference of extraneous allegStions wh <

not the part of the charge, dismissed the

with following uncalled for observation:

"The appellant even avoided the tl

required for the job and asked JAt,

to send all the training papers for li

IB Training School, Shivpuri (Madh

to his residence at Ahmedabad. ' a

officer is of no worth to the departnt

SN,J

W.P.l 1.29317 of 2023

: that he

Shri P.

'evented

rnd also

su pport

sign the

er dated

. P. Jain,

;TDlPCO

)tem be r,

ce were

'act a nd

ppellant

u r, who

ppellant

Inquiry

ro other

fhakkar

nt, and

rwledge

ing the

ses and

charge

by the

; giving

h were

appeal

rsic tra in ing

Ahmedabad

; training at

,a

Pradesh)

r u ntrained

nt'. "

25. In the

impugned

disciplinary

Authority;

High Court

result, the appeal is allowe J. The

orders of dismissal pasl;, rd by

authority, affirmed by the Ag pellate

Central Administrative Tribu r rl and

are set aside. The appellant stands

l-l

5N,J

W.P.No.29317 ol 2(J23

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 50% of the

back wages but there shall be no order as to

costs. "

L2. In the present case, no enquiry has been conducted

by respondent No.2 to arrive at a finding that the

petitioner's absence was deliberate and willful. In the

absence of such a finding, this Court opines that the

impugned order has been passed arbitrarily against the

petitioner in clear violation of principles of natural justice

without conducting due enquiry as per the procedure as

mandated under the statute and the relevant rules.

13.TAKIG INTOCONSIDERATION:

a) The aforesaid facts and circumstances of the

case,

b) The submissions made by the learned counsel

appearing on behalf of the petitioner and the learned

Standing Counsel appearing on behalf of the

respondents,

5-

2

SN,J

W.P.N,) 29317 of 2023

c) The observations of the Apex Cor rrt in the

judgments (referred to and extracted abov( ),

The Dresent writ Detition is allw The(

imDuoned orderNo. SRcPFICT(rD)/V.S/69

BnssB/RGP/2020/8159-69 dated O8.O6.! O21 is set

aside. However. itis observedthat it is r> rento the

acco rda nc

resDondents to oroceed aoainstthe or::itioner in

e to !aw, bv followinothe due or'_ rcedure as

o so. Thismandatedunder the rules. if thev intend to I

To,

1.

2.

3.

4.

5.

6.

- 7.

B.

ry-,

order is Dassed in the facts andcircumstar cof the

present case and shall not be treated as.rp reced ent

lnother similar cases. There shall be nog rder as to

costs.

Miscellaneous petitions, if any, pending r this Writ

Petition, shall stand closed

//TRUE COPY//

SD/. A, SRINIVASA REDDY

ASSII iTANT BEGISTRAR

/.

l=

SECTION OFFICER

The Director General, Sashastra Seema Bal, Block-V(ErLr t), R.K.

puram,

New

Delhi, Union of lndia-66

The Commandant,69th Battalion, SSB, Rungdung Basti, I lata Golai. Rhenock,

East Sikkim (Sikkim) 737133

The Commandant, (PERS-ll), FHQ SSB, New Dethi

The Commandant (Admin), FTR Hqrs, SSB, Siliguri, Wer;1 Bengal

The Deputy Commandant (Admn), SHe. SSB, Gangtok, I ikkim

One CC to SRI K.JAGADISHWAR REDDY, Advocate [O: JC]

One CC to SRI R.ANURAG, SC FOR CENTRAL GOW. [, )pUC]

One CC to SRI N.BHUJANGA RAO, DEpUTy SOLTC|I ]R GENERTAL OF

lNDIA, High Court for the State of Telangana at Hyderaba I [OpUC]

Two CD Copies

isr--4E--r.?" ! tw!ffifl

'%;'.

CC TODAY

HIGH COURT

DATED: 0811012025

)

),

t

(\

')tL

f-

&

!.,

':<r- . -i,-.:'

ORDER

WP.No.29317 ot 2023

ALLOWING THE WRIT PETITION,

WITHOUT COSTS

13

\xh

rTo

\l