IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:21598 of 1995 Between: M.S.K.Swami S/o. M.V.Satynarayana R/o. Satyanarayanapuram Vijayawada Krishna District ..... PETITIONER AND 1 A.P.State Electricty Board, Rep. by Member Secretary, Vidyuth Soudha Hyderabad 2 Chief Engineer, A.P.State Electricity, Vijayawada Zone, Vijayawada 3 Superintendent Engineer. Operation Circle, Vijayawada .....RESPONDENTS Counsel for the Petitioner:MR. D.V.SEETHARAMA MURTHY Counsel for the Respondents:MR. P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : ORDER: This writ petition is filed for a writ of certiorari to quash memos, dated 10.02.1995 and 04.08.1995 issued by respondent Nos.3 and 2 respectively. The petitioner sought for a declaration that Regulation 28(3) of the Andhra Pradesh State Electricity Board Service Regulations (for short ‘the Board Regulations’) is unconstitutional. At the outset, it may be stated that the learned counsel for the petitioner had given up the plea on the invalidity of Regulation 28(3) of the Board Regulations in view of the fact that in the instant case, the respondents held departmental enquiry before declaring that the petitioner ceased to be the employee of the Andhra Pradesh State Electricity Board (for short ‘the Board’). The petitioner joined the services of the Board in 1969 as Bill Collector. In 1980, he was converted as Lower Division Clerk. He faced departmental proceedings for his alleged unauthorized absence from 08.03.1992 to 09.03.1993. After a full-fledged enquiry, the enquiry Officer submitted his enquiry report, wherein he recorded a finding that the petitioner’s absence from 08.03.1992 to 31.03.1992 can be treated as having a valid justification there for, though the total period of absence from duty from 08.03.1992 onwards constitutes unauthorized absence. He found that the petitioner’s request for re-posting order, made on 06.03.1993, received by the office of respondent No.3 - Superintending Engineer, Vijayawada on 09.03.1993 is clearly with an intention to show that he was not under unauthorized absence beyond the period of one year. Considering the said enquiry report, respondent No.3 issued notice, dated 16.12.1993 to the petitioner wherein while adverting to the finding of the enquiry Officer that the petitioner’s absence from 08.03.1992 to 31.03.1992 was due to grievous injuries to his sister and brother-in-law at Madras and the same can be treated as valid ground, he specifically stated that except this part of the finding of the enquiry Officer, he has accepted the rest of the enquiry report. While stating that he has provisionally come to the conclusion that the petitioner was an unauthorised absentee and is deemed to have resigned with effect from 08.03.1992 fore noon and ceased to be in Board employment, he called upon the petitioner to show cause why he should not be treated as deemed to have resigned from service with effect from 08.03.1992 under Regulation 28(3) of the Board Regulations Part I. The petitioner offered his explanation, dated 03.01.1994 to the said show cause notice. After considering the said explanation and the enquiry report, respondent No.3 issued memo, dated 10.02.1995 holding that the petitioner shall be deemed to have resigned from service with effect from 08.03.1992 fore noon and shall automatically cease to be in Board employment under Regulation 28(3) of the Board Regulations. The petitioner was unsuccessful in the appeal filed by him, as the same was dismissed by respondent No.2 vide his memo, dated 04.08.1995. The petitioner questioned these two memos in this writ petition. Sri D.V.Seetharama Murthy, learned counsel for the petitioner contended that respondent No.3 committed an error in not giving the petitioner an opportunity of submitting his explanation with specific reference to his disagreement with the finding of the Enquiry Officer regarding the petitioner’s unauthorized absence between 08.03.1992 and 31.03.1992. According to the learned counsel, if this period is excluded, the petitioner’s unauthorized absence for the balance period will not attract Regulation 28(3) of the Board Regulations. Alternatively, the learned counsel submitted that the petitioner had unblemished record of more than 23 years of service and the penalty imposed on him is too disproportionate to the gravity of the misconduct allegedly proved against him. Opposing these contentions, Sri P.R.Balarami Reddy, learned Standing Counsel for the respondents submitted that respondent No.3 has scrupulously followed the procedure and given fair and proper opportunity to the petitioner to submit his explanation and, therefore, the order passed by him does not suffer from any illegality or on account of violation of principles of natural justice. He further submitted that as the conduct of the petitioner clearly shows that he avoided notices from the respondents and showed indifference to his duty as an employee of the Board by unauthorisedly staying away from employment for a continuous period of one year, the memo issued by respondent No.3 by declaring that the petitioner ceased to be the employee of the Board is quite appropriate and commensurates with the gravity of his misconduct. I have carefully considered the respective submissions of the learned counsel. As regards the first contention of the learned counsel for the petitioner, a perusal of the show cause notice issued by respondent No.3 on 16.12.1993 shows that respondent No.3 clearly pointed out in paragraph 4 that he is not in agreement with the finding of the enquiry Officer that the petitioner’s absence from 08.03.1992 to 31.03.1992 can be treated as having a valid ground. While coming to the provisional conclusion that the petitioner was unauthorisedly absent from duty for more than one year from 08.03.1992, he called upon the petitioner to submit his explanation as to why order under Regulation 28(3) of the Board Regulations shall not be passed. In his explanation, dated 03.01.1994, the petitioner sought to explain in detail the circumstances, in which, he could not join duty for one year. The tenor of his explanation clearly shows that the petitioner has clearly and properly understood the contents of the show cause notice. These facts clearly reveal that respondent No.3 has followed the procedure while differing with the finding of the enquiry Officer by specifically letting the petitioner know that he differed with the enquiry Officer’s finding. Hence, I do not find any force in the contention of the learned counsel for the petitioner that respondent No.3 failed to follow the fair procedure required in this case. With regard to the second contention of the learned counsel, on merits, respondent No.3 in his memo referred to the explanation of the petitioner for his absence from 08.03.1992. He observed that while it is the case of the petitioner that his alleged sister and brother-in-law, who were attacked by the robbers, were in coma for a period of six (6) months in a hospital, respondent No.3 referred to discharge summary, dated 28.03.1992 submitted by the petitioner and found that Smt. Vijayalakshmi Sharma, the alleged sister of the petitioner was admitted in the hospital on 09.03.1992 and discharged on 28.03.1992 and Sri K.Ramakrishna Sharma, her husband was discharged from the hospital on 07.05.1992. He also observed that the petitioner has not filed any evidence to show that the said Smt. Vijayalakshmi Sharma and Sri K.Ramakrishna Sharma were his sister and brother-in-law respectively. He has pointed out the falsity of the petitioner’s case. He took note of the fact that several memos sent to the petitioner by registered post calling for his explanation for his unauthorized absence were returned by the postal authorities with the remark that the party is not in town and on 25.07.1992, when the petitioner approached the Electricity Revenue Officer, the earlier memos, which were sent through registered post and returned, were served on the petitioner under acknowledgment and that in spite of receipt of the two memos, he has not offered any explanation to the same, but continued submitting the leave applications in piecemeal. He found that the petitioner was in the habit of sending leave applications availing part of his leave applied without furnishing the leave address and mentioning the dates on the applications to show that he has applied for leave in advance. On the basis of the above evidence, respondent No.3 concluded that the petitioner was unauthorisedly absent from 08.03.1992 to 31.03.1992, which attracts the provisions of Regulation 28(3) of the Board Regulations. Regulation 28(3) of the Board Regulations reads as under: “Any employee of the Board who remained unauthorisedly absent from duty for a continuous period of one year shall be deemed to have resigned from service from the date of absence and shall automatically cease to be in Board Employment.” Respondent No.3 on an analysis of the material available on record and on the basis of the findings of the enquiry Officer in respect of the period from 01.04.1992 to 09.03.1993, came to the conclusion that the petitioner’s admitted absence from 08.03.1992 to 09.03.1993 constitutes unauthorized absence and he shall be, therefore, deemed to have automatically ceased to be in Board employment. In my considered view, this conclusion of respondent No.3 is based on sound and proper analysis of the material available on record and this Court under Article 226 of the Constitution of India, while exercising the power of judicial review, will not re-appreciate the evidence on record to come to a different conclusion. As regards the last contention of the learned counsel for the petitioner that the penalty imposed on the petitioner is disproportionate, I find some force therein. In Ranjit Thakur v. Union of India[1], the Supreme Court held that the “Sentence shall suit the offence and the offender.” In various subsequent judgments of the Supreme Court in Union of India v. G.Ganayutham[2], Om Kumar v. Union of India[3], V.Ramana v. APSRTC[4], Ram Saran v. IG of Police[5] and Divisional Controller, KSRTC v. A.T.Mane [6] , applying the doctrine of proportionality, it held that the punishment imposed on an employee shall commensurate with the gravity of the misconduct. In the instant case, the record does not reveal that the petitioner was a habitual absentee. It was only for the first time that he absented himself from 08.03.1992 to 09.03.1993. While undoubtedly, his absence during that period constitutes unauthorized absence for a continuous period of one year within the meaning of Regulation 28(3) of the Board Regulations, the entire service of 23 years rendered by him stood nullified on account of invocation of the said Regulation. In ordinary course, the petitioner would have received all his pensionary benefits on his laying down office. By enforcing this Regulation, he is denied such benefit. Payment of pension is construed as a right earned by an employee to receive money for the services rendered by him in the past. On the facts of this case, I am of the view that by treating the petitioner as having ceased to be the employee of the Board, he is denied the pensionary benefits, and such a punishment is too disproportionate to the gravity of his misconduct. Generally, the Courts do not substitute the punishment and instead remit cases for fresh consideration by the disciplinary or appellate authority where it appears that the penalty imposed is disproportionate to the gravity of misconduct. But, considering the fact that the litigation is pending for 15 years, I am not inclined to prolong this litigation further. Therefore, in my opinion, interests of justice would be met, if the order of deemed resignation is modified as compulsory retirement to enable the petitioner to claim pensionary benefits for the services he had rendered till 07.03.1992. The writ petition is accordingly, disposed of modifying the memo issued by respondent No.3 as confirmed by respondent No.2. The petitioner shall be deemed to have been compulsorily retired on 08.03.1992 and he is entitled to receive pensionary benefits in terms of the service regulations governing the petitioner. C.V.NAGARJUNA REDDY, J 4th DECEMBER, 2008. kvni [1] (1987) 4 SCC 611 [2] (1997) 7 SCC 463 [3] (2001) 2 SCC 386 [4] (2005) 7 SCC 338 [5] (2006) 2 SCC 541 [6] (2005) 3 SCC 254