1.
Delay condoned.
2.
Leave granted.
3.
One of these two appeals is directed against the main judgment and order, dated
March 23, 2005, passed by a division bench of the Andhra Pradesh High Court in
writ petition No.3478 of 2004. By this judgment, the High Court, allowed the
writ petition filed by the respondents, set aside the order of the Andhra
Pradesh Administrative Tribunal and restored and confirmed the order of the
appellant's dismissal from service. Against the judgment passed in the writ
petition, the appellant filed a review petition (Miscellaneous Petition
No.12798 of 2005) which was dismissed by order dated April 13, 2010. The other
appeal is filed against the order dismissing the review petition.
4.
The appellant was working as a driver at Fire Station Sanathnagar under the
Fire Service Department. He was dismissed from service following an ex-parte
enquiry on charges of unauthorized absence. The order of dismissal was passed
on January 12, 1994 but dismissal from service was made retrospective, with
effect from December 29, 1992.
5.
The case of the appellant was that on account of ill health and family issues,
he had submitted an application for voluntary retirement from service with
effect from December 1, 1992 under rule 43(1) of the Andhra Pradesh Revised
Pension Rules, 1980. His application was neither accepted nor rejected, but on
November 19, 1992, he was informed that a charge memo bearing No. 15/PR/89 was
pending against him and, therefore, his request for voluntary retirement would
be considered only after its disposal. On November 25, 1992, the appellant
represented before the departmental authority that the charge memo was disposed
of in the year1990 itself and requested that action be taken on his application
for voluntary retirement.
On
November 26, 1992, the appellant was advised by the Divisional Fire Officer to
perform his duties till further orders were received from the Regional Fire
Officer. The matter stood at that stage when the appellant, while on duty on
December 29, 1992 became ill and was admitted to the hospital where he was
advised by the doctors complete bed rest for at least two months. While the
appellant was unwell and was undergoing treatment, a charge memo, being Rc.
4/PR/A2/93 was issued against him on July 5, 1993. An ex-parte enquiry was held
and the enquiry report was submitted to the Director General of Fire Services
on November27, 1993 and finally by order dated January 12, 1994, the appellant
was dismissed from service without being given a copy of the enquiry report or
any opportunity to show cause against the proposed punishment.
6.
The appellant took recourse to departmental appeals. His appeals to the
departmental officers were unsuccessful, but at the end of the hierarchy, the
Home Minister passed the order on March 22, 1999, directing that the appellant's
dismissal would be effective from the date of the order i.e. January 12, 1994
and not from the earlier date, December 29,1992.
7.
His dismissal order was revised accordingly.
8.
Failing to get the desired relief from the departmental authorities, the
appellant finally moved the Administrative Tribunal by O.A.No.4949/2000. The
Tribunal by its order, dated March 11, 2003, found and held that the enquiry
was not conducted in accordance with the A.P.C.S. (CC & A) Rules 1991, and
no enquiry report was furnished to the appellant. Further that on receipt of
the Enquiry Officer's report, the Regional Fire Officer straightaway issued the
order of punishment dismissing the applicant from service and, hence, his order
was not in accordance with the A.P.C.S. (CC & A) Rules, 1991.
9.
On a consideration of the material facts and circumstances, the Tribunal came
to the conclusion that the order of the appellant's dismissal from service was
wrongly passed. However, the Tribunal observed that the appellant had attained
the age of 59 years in the year 2000 and had thus, retired from service in that
year itself. Accordingly, while allowing the OA by order dated March 11, 2000,
the Tribunal directed the respondents to pay to the appellant his terminal
dues, including pension.
10.
The respondents challenged the order of the Tribunal by filing a writ petition
before the High Court and the High Court by its judgment and order dated March
23, 2005, allowed the writ petition and set aside the judgment and order passed
by the Tribunal. The review petition filed by the appellant was also dismissed
by order dated April 13, 2010. The appellant has finally brought the matter to
this Court in appeal by special leave.
11.
On hearing Mr. Devesh Singh, learned counsel appearing for the appellant and
Mr. G.N. Reddy, learned counsel appearing for the respondents and ongoing
through the materials on record, including the judgments of the Tribunal and
the High Court, we are of the view that the Tribunal's judgment is well founded
on a proper consideration of all the material facts and circumstances and we
see no reason for the High Court to interfere with that judgment, particularly
on issues of facts.
12.
The High Court has taken the view that the ex parte enquiry held against the
appellant could not be faulted as his whereabouts were not known and has also
justified the non-supply of a copy of the enquiry report to the appellant for
the same reason. However, the High Court seems to have over looked that the
notice with regard to the departmental enquiry was sent at the address of house
No.147 but the correct address of the appellant was house No.177 and not
No.147. Thus, the ex parte enquiry and the order of dismissal passed on that
basis were quite vulnerable and the Tribunal has rightly held that the order of
dismissal was passed on the basis of an enquiry which is untenable in law.
13.
In the facts of the case, there was no occasion for the High Court to exercise
its jurisdiction under Article 227 of the Constitution. We, accordingly, set aside
the impugned orders of the High Court and restore the order of the Tribunal.
14.
In the result, the appeals are allowed but with no order as to costs.
April
2, 2013
