IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.2451 OF 2011 Between: M.N.Reddy .... PETITIONER AND APSRTC and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.2451 OF 2011 ORDER: This writ petition is instituted by a Shramik of the APSRTC questioning the validity of the orders passed by the Divisional Manager of APSRTC at Suryapet on 11.03.2003, modifying in turn the orders passed by the Depot Manager, Kodad Depot on 03.06.2002, imposing the punishment of removal from service on the writ petitioner. The writ petitioner was serving the APSRTC as a Cleaner on 11.06.1992. His services have been regularized with effect from 01.01.1995. It appears that he stayed away from duty from 26.07.2000 to 12.09.2000, for nearly six weeks period, without any intimation and without obtaining any prior sanction of leave. In view of dislocation of services because of his absence, the writ petitioner has been subjected to disciplinary proceedings. A charge sheet was drawn against him on 10.10.2000 levelling two specific charges against him. The first charge related to period of his unauthorized absence between 26.07.2000 to 12.09.2000. The second charge relates to his absence for 97 days between April, 2000 to September, 2000 comprising of 21 days of sick leave and absence for 76 days in different spells. The writ petitioner has stated that because of acute health problem of his wife, he had admitted her in a Nursing Home at Vijayawada and he was attending on her and new born child, and because of health complications suffered by her, he could not attend to duties and he was far away at Vijayawada. Obviously, finding some reasonable justification behind his absence, he was entertained to duty. Though a show cause notice was issued to him on 13.11.2000 itself proposing to impose punishment of removal from service, the petitioner continued to work after filing his explanation on 01.12.2000. However, he seems to have absented for duties once again between 17.05.2002 to 02.06.2002. Obviously, the Depot Manager was enraged by the second spell of unauthorized absence and therefore, passed orders on 03.06.2002, finalizing the disciplinary proceedings initiated against the petitioner earlier by imposing the punishment of removal from service with immediate effect. The Depot Manager in page 3 of the order has clearly noticed that the writ petitioner has remained unauthorizedly absent from 17.05.2002 to 02.06.2002. This according to learned counsel is contrary to the established procedure on the subject. The writ petitioner was never provided an opportunity against this limb of allegation, which formed integral part of order of removal passed by the Depot Manager. He has carried the matter in appeal before the Divisional Manager, Suryapet Depot. He has specifically pleaded in the appeal that there was no opportunity for him to meet the allegation relating to his unauthorized absence for the period between 17.05.2002 to 02.06.2002. However, the Divisional Manager has taken into account his past services of nearly 10 years, which is mostly unblemished service and also he has taken into account the factor, which contributed to his unauthorized absence from duty. Therefore, on sympathetic consideration of the above factors, ordered for modification of the punishment of removal from service to that of deferment of annual increments due to the petitioner for a period of two years with cumulative effect and also ordered the period spent by him from the date of removal till he reports to duty is not on duty. Learned Counsel Sri Narasimha Goud placing reliance upon judgment rendered by Division Bench of this Court in W.P.No.1126 of 2009, dated 12.11.2009, contends that the order of removal passed by the Depot Manager is illegal, for, the Depot Manager has taken into account and consideration the unauthorized absence of the petitioner between 17.05.2002 to 02.06.2002 without providing him any opportunity whatsoever to meet such a case. It is further pointed out by the learned counsel that the charge sheet, which was drawn against the petitioner on 10.10.2000 could not have made a whisper about the absence from duties between 17.05.2002 to 02.06.2002. Therefore, it is clear case where the petitioner has been penalized for factors which do not form part of the charge sheet. Learned counsel therefore, urges that the order of the appellate authority fails to rectify this error committed by the Depot Manager and also its factors. Per contra, learned Standing Counsel Sri Sunil Kumar Reddy submits that the order of removal was passed by the Depot Manager on 03.06.2002, which came to be modified to a large extent by the Divisional Manager, the appellate authority on 11.03.2003. Whereas the present writ petition is instituted only in February 2011. Thus, nearly eight years of time has elapsed. This long delay has never been attempted to be explained by the writ petitioner and hence, the writ petition deserves to be dismissed on that ground alone. But, however, it must be observed that the learned Standing Counsel has pointed out that the Depot Manager ought not have even mentioned in the order of punishment, dated 03.06.2002 about the absence of the petitioner from duty for the period between 17.05.2002 to 02.06.2002. I have given consideration to the rival submissions. It is essential that every disciplinary authority must confine his scrutiny and consideration to the material covered by the disciplinary enquiry proceedings. The enquiry proceedings were required to be confined to the material relating to the charges only. It can hardly be in doubt that the alleged absence of the petitioner from service between 17.05.2002 to 02.06.2002 could not have formed part of the charge sheet drawn on 10.10.2000 which is nearly one and half years prior to the said unauthorized period of absence. Therefore, the Depot Manager could not have referred to the subsequent misconduct of the petitioner. Whether the subsequent period of absence has triggered the order of punishment of removal from services passed by the Depot Manager is a question, which relates to realm of imagination. Clearly the Depot Manager is at fault in taking into account and consideration another set of misconduct allegedly committed by the petitioner, which does not form part of the allegations thrown against him in the charge sheet, dated 10.10.2000. It is rather unfortunate that the Divisional Manager, in exercise of his power as an appellate authority, also committed the same error while passing orders on 11.03.2003. Though there is no specified period of limitation for an aggrieved person to invoke the jurisdiction of this Court under Article 226, nonetheless it is a fundamental principle of law which has been consistently followed by Courts that no party should be allowed to come to the Court belatedly which would cause prejudice to the opposite party to defend such a case. Since there was no reasonable explanation offered by the writ petitioner for approaching this Court after more than eight years, instead of denying him the relief totally and completely, if a portion of the relief is denied, it would, perhaps, meet the ends of justice. Thus, exercising the discretion available, I consider it appropriate to modify the order of the Divisional Manager passed on 11.03.2003 for the procedural irregularity committed by him and also by the Depot Manager. The order of termination passed by the Depot Manager as modified by the Divisional Manager to that of stoppage of two increments remains. However, the Divisional Manager is not justified in treating the same to have cumulative effect. Therefore, that portion of the order which seeks to impose withholding of increments with cumulative effect is deleted. In other words two annual grade increments of the petitioner shall be treated to have been deferred for a period of two years without cumulative effect. The period of absence from services rendered by him between 17.05.2002 and 02.06.2002 the actual date of reporting to duty pursuant to the orders passed by the Divisional Manager on 11.03.2003 shall be treated as not on duty and consequently, the same will not be counted for any purpose, including that of the terminal benefits. To the extent indicated supra, the writ petition is allowed. There shall be no order as to costs. _________________________________ NOOTY RAMAMOHANA RAO, J MARCH 15, 2011 YVL THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.2451 OF 2011 MARCH 15, 2011