HON’BLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.25040 of 2002 Date: 20-01-2014 Between R.Venkateshwarlu … Petitioner and A.P. Pollution Control Board, Rep. by its Member Secretary, Hyderabad;
and another … Respondents HON’BLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.25040 of 2002 Order:
Although the petitioner sought for reinstatement through a Writ of mandamus declaring the action of the 1st respondent-Andhra Pradesh Pollution Control Board (the Board, for short) in not allowing him to work as Junior Scientific Officer as illegal, the petitioner now seeks for pensionary benefits on the ground that he completed the age of superannuation on 14-3-2007 and has consequently retired from service on 31-3-2007.
2. The petitioner passed B.Sc., in 1974-75. He was recruited as an Analyst Grade-II by the 1st respondent-
Board with effect from 01-01-1977. He was subsequently promoted as a Junior Scientific Officer. The 2nd respondent-Government issued G.O.Rt.No.169, Energy, Environment, Science and Technology Department, dated 13-10-1982 permitting the petitioner to undergo World Health Organisation (WHO) Fellowship, 1982 at Netherlands from 27-9-1982 till 06-12-1982 under IND RCE 001 Training Programme. The period of absence for undergoing training including the journey time from Hyderabad to Delhi and Delhi to Hyderabad was ordered to be treated as on duty. The Government Order further clarified that WHO would bear the cost of the training and travel expenses from Delhi to Netherlands and back.
3. The petitioner returned to duty after training and joined the 1st respondent-Board on 07-12-1982.
On 14-6-1986, the petitioner was promoted as a Junior Scientific Officer and was transferred to Visakhapatnam. On 19-9-1986, the petitioner applied to the 1st respondent-Board seeking for extraordinary leave for a period of 18 months with lien in the 1st respondent- Board so as to enable him to go over to the United States of America (USA) and work in the field of environment pollution control in Power Plants. On 22-9-1986, the petitioner submitted another representation seeking for extraordinary leave for 18 months. On 06-4-1988, the petitioner submitted a fresh representation seeking for extension of the extraordinary leave for a further period of one year. The petitioner claimed that he returned to India on 15-6-1989 and reported to duty. He submitted that there was no response from the 1st respondent-Board. The petitioner further submitted that on 26-6-1989, he once again reported to the 1st respondent- Board for duty. Once again, there was no response to the claim of the petitioner to report to duty.
4. On 19-7-1989, orders were passed by the 1st respondent-Board that the services of the petitioner were terminated with effect from 21-9-1986.
The petitioner was informed that the question of admitting him into duty would not arise as his services had already been terminated. The petitioner submitted a representation on 21-7-1989. He also submitted representations to the then Chief Minister and other authorities without any success. Hence, the present writ petition.
5. As already pointed out, the petitioner sought for reinstatement into service through the writ petition. However, as the petitioner has attained superannuation, he seeks for pensionary benefits treating the period of absence as dies-non.
6. The learned counsel for the petitioner submitted that Circular Memo No.C-9101-4/8/FR.I/91, dated 25-12-1991 issued by the Finance and Planning Department envisages that in case of unauthorized absence from duty and willful and prolonged absence from duty without proper leave, the employee reporting back to duty should be permitted to join duty without prejudice to the action contemplated. He also referred to F.R. 18 and Rule 5-A of the Andhra Pradesh Leave Rules, 1993 which contemplate that no employee is entitled to any sort of leave beyond 5 years and that the unauthorized absence from duty would be treated as dies- non. The learned counsel for the petitioner submitted that the petitioner is a highly experienced employee and is well-versed in the prevention and control of water pollution and that the services of the petitioner, in fact, are needed for the nation. The expertise of the petitioner, however, is presently redundant where the petitioner would have retired from service way back in 2007.
7. The learned counsel for the petitioner submitted that when the petitioner had opportunity to explore and obtain experience from USA, he applied to the competent authority seeking permission to go over to USA at his own expenses and that the petitioner was not paid any salary during the period of his absence from duty.
He submitted that terminating the services of the petitioner with effect from 21-9-1986 without any enquiry is bad.
8. Be it noted that although the petitioner submitted representation to the 1st respondent-Board initially on 19- 9-1986 and on 22-9-1986, he was never granted extraordinary leave. The petitioner submitted a representation on 06-4-1988 seeking for extension of the extraordinary leave on the presumption that he had already been granted extraordinary leave.
9. At no point of time, the 1st respondent-Board informed the petitioner that his application for extraordinary leave or his application for extension of extraordinary leave has not been sanctioned. As rightly submitted by the learned counsel for the petitioner, the 1st respondent-Board cannot now turn round and contend that the petitioner had never been granted extraordinary leave and the absence of the petitioner from duty was without any justification. In view of F.R. 18 and Rule 5-A of the Andhra Pradesh Leave Rules, 1993, an employee working in an instrumentality of the State may take extraordinary leave to a total period of 5 years. The petitioner sought for extraordinary leave for a total period of less than 3 years. However, leave had not been sanctioned.
10. The Circular Memo of the Finance and Planning Department dated 25-12-1991 obligates the 1st respondent-Board to take back the petitioner to duty and may proceed against him by initiating departmental action. The 1st respondent-Board has not chosen to do so. It is too late of the day for the 1st respondent-Board to attempt to take any action against the petitioner where the petitioner already had attained superannuation in March, 2007. In effect, the termination of the petitioner was without any enquiry, which is arbitrary.
11. The 1st respondent-Board could have rejected the application of the petitioner for extraordinary leave and could have at least rejected extending the extraordinary leave. The 1st respondent-Board cannot sleep over the applications and when the petitioner reported to duty cannot clamp termination orders upon the petitioner. The impugned orders are in total violation of the principles of natural justice as no Show Cause Notice was issued and no enquiry was conducted against the petitioner. The termination of the petitioner consequently is unjust and is liable to be set aside.
12. Where the petitioner had already retired from service, I consider that from the date on which the petitioner went on extraordinary leave, he shall not be entitled to any salary till the date of his retirement.
The entire period from 21-9-1986 on which date the petitioner left for abroad till the date of his retirement consequently is treated as dies-non. The petitioner, however, is entitled to retirement and consequently is entitled to all retirement benefits as if he retired from service in the ordinary course with the period between 21- 9-1986 and the date of retirement being treated as dies- non. The writ petition is allowed accordingly.
The miscellaneous petitions pending, if any, shall stand closed. No costs.
Dr. K.G.SHANKAR, J.
20th January, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.25040 of 2002 20th January, 2014. (Ak)