THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION Nos:1131 of 2005 & 2743 OF 2006 DATED 12-04-2010 Between: Hasan Bin Mohammed. … PETITIONER And A.P.Transmission Corporation, Rep.by its Chairman and Managing Director, Vidyut Soudha, Hyderabad & 4 others. ... RESPONDENTS COMMON ORDER: W.P.No.1131 of 2005 is filed seeking a mandamus declaring inaction on the part of the respondents in giving posting orders to the petitioner to join duty vide letter, dated 28-10-2004 as illegal, arbitrary and contrary to B.P.M.S.No.34 dated 12-05-1997 and consequently direct the respondents to forthwith take him on duty by giving posting orders with all consequential benefits. 2. W.P.No.2743 of 2006 is filed seeking a mandamus declaring impugned charge sheet vide Memo No.DEE/ENQ/APCPDCL/HYD/F-751/D.No.11/ 2006, dated 17-01-2006 of the 5th respondent, as illegal, arbitrary and contrary to the A.P.S.E.B.Employees Discipline and Appeal Regulations, as adopted by the APCPDCL, violative of Article 14 of the Constitution of India and against the principles of natural justice. 3. It appears, G.O.Ms.No.214, dated 03-09-1996 has been adopted by the A.P.State Electricity Board vide B.P. (P& G. Per.) Ms.No.34, dated 12-05-1997, wherein the employees were permitted to accept jobs abroad subject to certain conditions. Petitioner had joined as Sub- Engineer in the service of the A.P.State Electricity Board, now called as A.P.Transmission Corporation, with effect from 21-06-1993. On 07-12-1998 the Director, Personnel, through his Memo No.DP/DS(Ser) AS (SER)/1081/Q(S)5/98 gave ‘No Objection Certificate’ for obtaining passport under foreign service provision, subject to certain conditions. The condition No.iv reads as under: iv) That he should apply for leave in advance for the purpose of visiting U.A.E. and get it sanctioned by the competent authority and obtain proper relief and clearance certificate from the concerned officer for availment of leave indicating that there are no dues outstanding against him” Thereafter, on 12-10-1999 petitioner made a representation to the authorities seeking permission to obtain employment in U.A.E. The said representation was forwarded by the 2nd respondent to the 1st respondent on 25-10-1999. While that was pending, on 03-11-1999, his immediate superior-Additional Assistant Engineer, Operation, Ghanpur relieved him from service. The petitioner sought for leave from 01-11-1999 to 31-11-2004, and he was relieved from service and he went and joined in U.A.E. On 07-12-1999 he sent an intimation of joining duty in Dubai Electricity & Water Authority to the respondents. He returned from Dubai after completing five years of service and requested for posting orders by letter, dated 28-10-2004, however no orders were passed. Therefore, the present Writ petitions. 4. A detailed counter affidavit has been filed by the 4th respondent, denying the allegations made by the petitioner and further stating that the consent of the administration was not procured. The contention of the petitioner that with the consent of the administration he procured for employment in Dubai Electricity & Water Authority is not true. Petitioner requested for issuance of ‘No Objection Certificate’ for obtaining passport to visit U.A.E. for which he was issued with the same. While submitting the leave application, petitioner stated that he has obtained passport, and the job Visa is under process and he is intending to proceed on long term leave for a period of five years and requested for sanction of the same. But the petitioner, without getting prior sanction of the leave got relieved with effect from 03-11-1999 by simply submitting the leave application. Mere submitting the leave application does not confer any right on the petitioner to proceed abroad on leave without sanction. Therefore, he has violated the specific orders issued to him that he should get the leave sanctioned well in advance. As he had proceeded to U.A.E. without prior sanction of leave which has become the subject-matter for initiation of disciplinary proceedings against him. The Divisional Engineer/Enquiries/APCPDCL was appointed as an Enquiry officer to enquire into the allegation of unauthorized absence of the petitioner for having indulged in proceeding on long leave without prior sanction, vide Memo No.DS(Per)/AS(Per)/PO-DC/847-C2/2002-2, dated 16-12-2005. The same was intimated to the petitioner vide memo No.SE/OP/MBNR/PO/Adm-U2/F- 238/D.No.1485/05, dated 24-12-2005 in order to comply with the above directions. However, the petitioner approached this Court by way of filing W.P.No.2743 of 2006. Petitioner has no right whatsoever to leave the country without sanction of leave. Therefore, he is liable to be proceeded with under the disciplinary rules of the company. The Writ petitions are devoid of merits and liable to be dismissed. 5. Heard both sides. Perused the record. 6. The fact that the petitioner obtained ‘No objection Certificate’ for obtaining passport for the purpose of getting employment in U.A.E. through the letter of the Director, Personnel, dated 07-12-1998 is not in dispute. The filing of representation by the petitioner on 12-10-1999 before the Superintending Engineer, AP.Transco, Operation Circle, Mahabubnagar and the leave application enclosed thereto and the promise made by the petitioner that he would rejoin duty after expiry of the leave, are not in dispute. It is also not in dispute that the said application, dated 12-10-1997 seeking leave from 01-11-1999 to 31-10-2004 was forwarded by the 2nd respondent to the 1st respondent on 25-10-1999, the petitioner was relieved from duty by the Additional Assistant Engineer, an immediate superior of the petitioner on 03-11-1999, the petitioner intimated his joining duty in Dubai Electricity & Water Authority on 07- 12-1999. Further, no action was initiated against the petitioner for the absence of five long years from duty, when he was in Dubai working for the Electricity & Water Authority therein nor the application filed by the petitioner for sanction of leave, which was pending, was rejected for all the five years nor it is their case that in view of the fact that he was relieved on 03-11-1999 and joined U.A.E. service there was any inconvenience caused to the department. However, it appears, as soon as he completed five years of service he came to India and requested for posting orders on 28-10-1994 i.e. within the period of five years. Thereafter, when he filed this representation and sought for posting orders the respondent did not permit him to join duty and started digging at him. The respondent slept over the matter for about five years and now the petitioner is not permitted to join duty. On the other hand, the respondents have initiated disciplinary proceedings against the petitioner by issuing a charge sheet which reads as under: “Sri Hasan Bin Mohammad, Sub-Engineer of Operation Division, Wanaparty, Mahabubnagar is reported to have indulged in gross negligence and dereliction of duty while proceedings on EOL for 5 years from 03-11-1999 to 31-10- 2004 for seeking employment abroad (UAE) without proper sanction of leave from the competent authority and thus in violation of rules prescribed for proceeding on leave on EOL for employment at foreign service”. 7. Aggrieved by the same, petitioner in fact filed W.P.No.2743 of 2006. However, when the stay application in W.P.M.P.3360 of 2006 was dismissed, he filed W.A.No.438 of 2006 and the same was disposed of directing as under: “Hence, the Writ Appeal is allowed. Pending disposal of the Writ Petition, there shall be stay of all further proceedings in pursuance of the impugned charge sheet of the fifth respondent as against the appellant herein. Office is directed to post the main writ petition itself before the learned single Judge, hearing these matters for final hearing subject to part-heard on 07-08- 2006. Meanwhile, the respondents are directed to file their counter. No costs”. 8. That is how both the Writ Petitions are coming up for hearing. After reporting to duty and after obtaining the stay of disciplinary proceedings in the Writ Appeal, petitioner was not taken into service nor he is treated as if he is under suspension from duty, which is the primary procedure to be followed by the respondents. They failed to do so. Be that as it may, the fact remains that the petitioner was neither proceeded with departmentally for five long years when he was away from the country nor the respondents have denied the above facts which were noticed by this Court. All these things would indicate that the application filed by the petitioner was pending. Some how it was not disposed of nor it was rejected. On the other hand, he was relieved by his immediate superior. Therefore he joined in UAE service and intimated as to his joining in Dubai services on 07-12-1999. All these things would indicate that there is some communication gap, some where, but for that, the petitioner could not have been proceeded with departmentally saying that he was absent unauthorisedly from his duties for five long years and therefore he is also supposed to face the disciplinary proceedings. For all these reasons I am of the opinion that the respondents to cover up their own lapses started harassing the petitioner. The petitioner is entitled to for posting orders. Therefore, respondents are directed to permit the petitioner to join duty forthwith. However, in the peculiar facts and circumstances of the case, the petitioner is entitled only for continuity of service and other attendant benefits, but not for back wages from 28-10-2004 till the date of joining duty. 9. Accordingly, W.P.No.1131 of 2005 is disposed of and since it is found that there was no fault on the part of the petitioner, the issuing of charge sheet dated 17-01-2006, which is subject-matter of the W.P.No.2743 of 2006 is liable to be quashed and is accordingly quashed and W.P.No.2743 of 2006 is allowed. There shall be no order as to costs. ________________ C.V.RAMULU,J 12th April, 2010. Tsy