Shaik Abdul Kareem vs. The State Of Ap

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.17092 OF 2020

ORDER:

This writ petition is filed seeking a Writ of Mandamus, declaring the action of the third respondent/Inspector General of Police, South Coastal Zone, Guntur Range, Guntur in suspending the petitioner from service vide proceedings C.No.3568/G1/2020, ROO No.107/2020 dated 28.08.2020 for not attending the duty on 17.08.2020 and 18.08.2020, without taking into consideration the petitioner's health condition even though he is in home isolation and his entire family members are suffering with Covid-19 as illegal, arbitrary, unconstitutional and violative of principles of natural justice and consequently set-aside the same.

The facts of the case are that, the petitioner was selected as Sub-Inspector of Police in Hyderabad City on 19.11.1998 and presently he was working as 'Chief Law Instructor' in the fourth respondent's college/Police Training College, Ongole from 25.02.2019. The petitioner also maintained a clear defaulter sheet and his performance was also recognized by his superior officers for his outstanding performance on 28.01.2008 and he was given 'Accelerated Promotion' as Inspector of Police. The petitioner received copy of suspension order from the third respondent vide proceedings C.No.3568/G1/2020, ROO No.107/2020 dated 28.08.2020 and without calling for any explanation, the third respondent directly suspended him.

Initially, the petitioner's father had been traced as Covid Positive on 28.07.2020. Later, on 29.07.2020 as per the doctor's advice, the petitioner himself, his mother and his wife underwent Covid-19 test. They have received test result where the mother and wife of the petitioner were tested positive and the petitioner was tested negative. While the petitioner was serving his father, mother and wife, he regularly attended the college. On 15.08.2020, he attended the college and explained his family condition to the Chief Law Instructor – Sri Sambasiva Rao, as he is incharge of the entire administration of the College. On 16.08.2020 during the night, the petitioner suffered from fever. On 17.08.2020, the petitioner consulted a doctor and the doctor identified the symptoms of fever and loss of smell, advised the petitioner for home isolation and referred for Covid test. Immediately, the petitioner informed the same to the higher authorities. On 18.08.2020, the Chief Law Instructor (Admin) made a phone call and informed that the higher officials enquired about the petitioner and asked the Chief Law Instructor to send absent report of the petitioner for 17.08.2020 and 18.08.2020. On 19.08.2020, the petitioner attended the college by following covid protocols and explained his situation to the fourth respondent and he advised him to take care of health and undergo Covid test. As per the advice, all the family members of the petitioners underwent Covid test on 19.08.2020, where his father, mother and wife tested negative, whereas, the petitioner tested positive for Covid-19.

The second respondent/Director General of Police, Andhra Pradesh issued circular Rc.No.758.Trg-2/2020 dated 10.08.2020 stating that SCTPCs training centers were declared as holiday break from 10.08.2020 to 30.08.2020. Surprisingly, the third respondent suspended the

petitioner for not attending the college for two days i.e. on 17.08.2020 and $18.08.2020$ . The third respondent after suspension called for C.No.88/A1 vide proceeding $PTCOGL/2020$ explanation dated $30.08.2020$ which was served on the petitioner on 04.09.2020.

On 19.08.2020, the third respondent Sri J. Prabhakar Rao, IPS who suspended the petitioner called him and asked the petitioner to come to his office immediately. Then, he enquired about W.P.Nos.17099 and 17122 of 2019 which are pending before the High Court, registered against some police officials. Further, the third respondent enquired about the Advocates who are dealing the writ petitions and also about the husbands of the writ petitioners and asked to get the writ petition compromised. It is alleged that, when the petitioner resisted to do so, the third respondent threatened the petitioner with suspension and thereafter suspended him.

The main contention of the petitioner before this Court is that the petitioner was prevented from sufficient cause from attending the office, as he was serving his father, mother and wife on the relevant dates of his absence and that, he also suffered from Covid-19 such absence cannot be said to be wilful absence, thereby the suspension is illegal and requested to set-aside the same.

During hearing, Sri Ch. Vidya Sagar, learned counsel for the petitioner while reiterating the contentions urged in the affidavit, placed reliance on the judgment of the Apex Court in Krushnakant B. Parmar v. Union of India¹ and Circular dated 18.05.2020 issued by Directorate General of Health Services (EMR Division), Ministry of Health and Family

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$^{1}$ (2012) AIR (SCW) 1633

Welfare, Government of India and basing on the principle laid down in the above judgment and Circular dated 18.05.2020, learned counsel for the petitioner requested to hold that the absence is not wilful and requested to set-aside the proceedings of the third respondent/Inspector General of Police, South Coastal Zone, Guntur Range, Guntur in suspending the petitioner from service vide proceedings C.No.3568/G1/2020, ROO No.107/2020 dated 28.08.2020.

Admittedly, the petitioner did not attend office on 17.08.2020 and 18.08.2020. The alleged reason for his absence is that, his parents and wife were suffering from Covid-19 and this petitioner was serving them and later, the petitioner also suffered from Covid-19. But, on the relevant dates, i.e. 17.07.2020 and 18.08.2020, the petitioner was suffering from Covid-19. However, whether such sufferance and absence of this petitioner is wilful or not is a question of fact to be decided during enquiry only. Even in Krushnakant B. Parmar v. Union of India (referred supra), only after conducting necessary enquiry, the enquiry officer found the petitioner guilty and the Supreme Court did not agree with the findings while observing as follows:

"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.

18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There

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may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant."

There is no quarrel about the law laid down by the Apex Court. However, such finding can be relied on only after conducting enquiry, but not at the stage of suspension. Even, according to the Circular dated 18.05.2020 issued by Directorate General of Health Services (EMR Division), Ministry of Health and Family Welfare, Government of India, any staff reportedly suffering from flu like illness should not attend office and seek medical advice from localhealth authorities [e.g CGHS wellness center, medical attendance under CS (MA) etc]. Such persons, if diagnosed as a suspect/confirmed case of Covid-19 should immediately inform the office authorities. Even if this guideline is taken into consideration, on 17.08.2020 and 18.08.2020, the petitioner was suffering from ill-health and he is neither suspect nor confirmed case of Covid-19, but his parents and wife were suffering from Covid-19. Therefore, at best, the petitioner may take advantage of the above guideline from 19.08.2020 onwards, therefore, at this stage, it is difficult to hold that the absence of the petitioner on 17.08.2020 and 18.08.2020 is not wilful and it is left open to the concerned disciplinary authorities to decide whether his absence is wilful or not, during enquiry, if any initiated against this petitioner.

Admittedly, the petitioner did not apply for grant of any kind of leave for the days he was absent to duty i.e. on 17.08.2020 and 18.08.2020, but he made a request in representation to treat the same

as leave i.e. either Casual Leave or Earned Leave. But, that is not sufficient.

In any view of the matter, none of the grounds urged by the petitioner are sufficient to set-aside the suspension order. However, the representation submitted by the petitioner is pending with the third respondent/Inspector General of Police, South Coastal Zone, Guntur Range, Guntur. Hence, the third respondent/Inspector General of Police, South Coastal Zone, Guntur Range, Guntur is directed to dispose of the representation of the petitioner, in accordance with law, within two weeks from today.

With the above direction, writ petition is disposed of. No costs.

Consequently, miscellaneous applications pending if any, shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date:21.12.2020 SP