IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SEVENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8681 of 2009 Between: Mohd. Abdul Khader S/o. Late Mohd. Abdul Raheem APSRTC, Hyderabad.1 Depot R/o. Flat No.404, Hema Residency, Red Hills, Hyderabad 500 004. ..... PETITIONER AND 1 The Depot Manager, APSRTC, Hyderabad-1 Depot, Hyderabad, A.P. 2 The Deputy Chief Mechanical Engineer, APSRTC, Ranga Reddy Region, Hyderabad. 3 Regional Manager, APSRTC, Ranga Reddy Region, M.G.B.S., Hyderabad. 4 The Executive Director / Hyderabad Zone, APSRTC, M.G.B.S., Hyderabad. .....RESPONDENTS Counsel for the Petitioner:MR.MOHD.GHOUSUDDIN Counsel for the Respondents:MR. V.S.K.RAMA RAO FOR MR.K.MADHAVA RAO(SC FOR APSRTC) The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare order, dated 30.01.1997, as illegal and arbitrary. This case stands as an example of how the employees of public enterprises take liberty of obtaining long leave by showing some pretext or the other and how the employers show misplaced lenience on such employees. The petitioner was at the relevant time, working as Senior Supervisor (Superintendent Material) with respondent No.1. On the purported ground that he has to perform Haj and to visit some other holy places in other countries, he applied for leave from 24.05.1993 to 23.05.1994. Respondent No.3 considered the said application and accorded sanction of extraordinary leave vide his order, dated 07.04.1993. He again applied for extension of leave for one more year and respondent No.3 was “generous enough” in extending the leave period as requested by the petitioner. However, the petitioner did not join duty after expiry of two years’ leave period. The notices sent to the petitioner to his known address returned un-served. Therefore, disciplinary proceedings were initiated against the petitioner. The charge sheet sent to the petitioner’s residential address was returned by the postal authorities with the endorsement “party continuously absent”. A formal enquiry was initiated and the Chief Inspector (Enquiry), Ranga Reddy Region conducted enquiry into the charges. As the petitioner was not available and he failed to receive the notices of enquiry, ex parte enquiry was held, in which, the following two charges are held proved. “Charge No.I – “For having failed to report for duty till date even after expiry of sanctioned leave on 23.5.94 which is serious misconduct. Charge No.II – “For your unauthorized absence 24.5.94 to till date.” After perusing the enquiry report, respondent No.2 passed order, dated 30.01.1997, wherein while agreeing with the finding of the enquiry officer, he removed the petitioner from service with effect from 30.01.1997. Questioning the said order, the petitioner filed an appeal before respondent No.3, after a lapse of four years. The said appeal was entertained by respondent No.3. In his order, dated 11.07.2002, respondent No.3 gave the finding that the proceedings of the enquiry officer are absolutely in order and he observed the principles of natural justice by giving reasonable opportunity to the petitioner to defend his case during the course of enquiry. Having so held, respondent No.3 set aside the order of removal passed against the petitioner and modified the punishment imposed on him in the following terms. a) Sri Mohd. Abdul Khader, E.No.52012, Ex.Suptd (Mat.) be reinstated into services. b) On reinstatement, he shall undergo punishment of reversion in rank from Suptd (Mat.) to Dy.Suptd(Mat.) for a period of two years which shall have its cumulative affect upon the future increments and his pay shall be fixed in appropriate stage i.e., at the stage of had he been continued as Dy.Suptd(Mat.). c) After a period of two years, he shall again be reverted back to his former post of Suptd.(Mat.). The period shall be taken into account from the date when Sri Mohd.Abdul Khader, E.No.52012, Ex.Suptd (Mat.) reports for duty on reinstatement at the Unit where he is posted. d) Adopting the principle of ‘no work no pay’, the period right from the date of absenteeism i.e., 23.5.94 to till he reports for duty as Dy.Suptd (Mat.) shall be treated as NOT ON DUTY for the purpose of service, increments and gratuity. e) He shall report to ED (Hyd. & KRMR Zones) for receiving further posting orders within seven days from the date of receipt of this proceedings, failing which, the orders stands cancelled.” The above “benevolent order” passed by respondent No.3 was not taken advantage of by the petitioner. He did not bother to report to duty within the time stipulated by respondent No.3. As the petitioner failed to join duty as permitted by respondent No.3, respondent No.4 issued proceedings, dated 23.06.2003 advising the former to cancel the reinstatement order to enable him to fill up the vacancy of Deputy Superintendent (Material). Following the same, by order, dated 26.12.2003, respondent No.3 cancelled his earlier order, dated 11.07.2002. The petitioner neither questioned original order, dated 11.07.2002 nor later order, dated 26.12.2003, by which, respondent No.3 cancelled his earlier order. More than six years later, when the petitioner approached the respondents to permit him to join duty, he was rightly shown the door by stating that he failed to report to duty as directed by respondent No.3 and, therefore, it was not possible for the respondents to permit the petitioner to join duty after a lapse of more than six years. The petitioner filed Writ Petition No.2448 of 2009 in this Court, in which, he purported to challenge order, dated 24.10.2008, by which, he was not permitted to join duty, and order, dated 11.07.2002, whereby respondent No.3 substituted the punishment by directing the petitioner’s reinstatement with conditions. This Court while dismissing the said writ petition on the ground of availability of alternative remedy, permitted the petitioner to file an appeal against the said order. The purported appeal filed by the petitioner was dismissed by respondent No.4 by his order, dated 24.03.2009. The material part of the said order is relevant to be reproduced herein below: “Though the case of the petitioner was considered by Regional Manager, Ranga Reddy Region for reinstatement duly modifying the punishment of removal to that of reversion as Dy.Supdt (Materials) and posted to Nizamabad Region, the petitioner has not turned up for more than 6 years seeking reinstatement in pursuance of the order in Proceedings No.P1/255(5)/02, dt.11.7.02. The appeal is filed only on the verge of his retirement. This only shows that he was not interested in performing his duties. The reasons put forth by the petitioner for not joining duty on reinstatement are not convincing and are not supported by any evidence.” The petitioner assailed in the present writ petition the original order of his removal. The narration of the above facts reveals that in the first place, respondent No.3 did not act as a responsible appellate authority. He failed to give any reason whatsoever to direct reinstatement of the petitioner by substituting the punishment of removal. The power vested in him as an appellate authority is meant to be used in an objective but not subjective manner and legal but not in a whimsical manner. He failed to keep in view the onerous responsibilities he hold as the appellate authority. While exercising appellate power he was entitled to interfere with the orders of the disciplinary authority only in cases where he was satisfied on the basis of the material on record that either the charged employee was not given reasonable opportunity of being heard or the view taken by the enquiry officer as agreed by the disciplinary authority is not based on any evidence or the same does not accord with law, justice and fair play. As appellate authority, he is not entitled to arrogate to himself the power of interfering with the penalties merely based on his subjective satisfaction. Having agreed with the findings of the enquiry officer on the misconduct of the petitioner and held that the enquiry officer observed the principles of natural justice by giving reasonable opportunity to the petitioner, he directed reinstatement of the petitioner without assigning any reasons. This Court is constrained to take strong exception to the lighthearted manner in which respondent No.3 reversed the order of the disciplinary authority. Be that as it may, having got the reprieve from respondent No.3, the petitioner has not taken advantage of the same. He failed to report to duty, on account of which, respondent No.4 rightly directed respondent No.3 to cancel his earlier order, which he did later. The petitioner has not questioned this order until he filed Writ Petition No.2448 of 2009 after a lapse of six years. When this Court directed the petitioner to approach the appellate authority, his request for reinstatement was rejected, and in my view very rightly, by respondent No.4. The undisputed facts borne out by record clearly reveal that the petitioner was not interested in continuing in employment and he obviously went in search of greener pastures by abandoning his employment with the Corporation. From the very fact that he failed to report to duty at least after respondent No.3 has gone out of his way in directing his reinstatement, he did not avail that opportunity also. Obviously, in order to claim retirement benefits on the verge of his retirement, he suddenly woke up and approached this Court by way of Writ Petition No.2448 of 2009. In my considered view, the petitioner does not deserve any indulgence of this Court. For the above-mentioned reasons, the writ petition is dismissed. Before parting with this case, I felt it appropriate to place on record the thoroughly unsatisfactory manner in which the appellate powers are being exercised by the hierarchical officers of the Corporation. This, in my view, is due to lack of proper comprehension on their part of the scope of the appellate powers and the manner in which they are required to be exercised. The Corporation must bestow its attention to this aspect by laying down guidelines in consultation with experts in the service law field and conducting orientation courses to the officers through expert bodies such as Dr. Marri Chenna Reddy Human Resource Development Institute, Hyderabad. As a sequel to dismissal of main petition, WPMP.No.11373 of 2009 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 27th APRIL, 2009. Note: issue copy to the Vice Chairman and Managing Director, APSRTC, Hyderabad. . kvni/mnr