Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 1129 (RAJ)

Mohan Ram Kalirana v. U. O. I.

2003-08-07

N.N.MATHUR, O.P.BISHNOI

body2003
JUDGMENT 1. This Special Appeal is directed against the judgment of the learned Single Judge dated 13.9.2002. It is barred by limitation of 112 days. The appellant has filed an application under Section 5 of the Limitation Act for condonation of delay. It is averred that in June, 2002 because of the drought in State of Rajasthan, he had gone to Gujarat for earning livelihood. In February, 2003, on his visit to Rajasthan, he came to know about the decision of the writ petition. We are not convinced with the reasons given however, taking a liberal view of the matter, the delay in filing the Special Appeal is condoned. 2. We have heard Mr. K.K. Shah, learned counsel for the appellant and Mr Ravi Bhansali, learned counsel for the respondents. 3. The brief facts as culled out from the pleadings are that the appellant was Sepoy in the Border Security Force (in short "BSF") and has been removed from service for overstaying from leave with effect from 1.7.1999 to 1.10.1999 i.e. 93 days plus thirty days leave with effect from 1.6.1999 to 30.6.1999. Due to "Kargil Conflict", an operation alert was made and leave s of all Force personnel was cancelled and they were asked to report on duty immediately. The appellant failed to report. It appears that he proceeded on the sanctioned leave for the period 1.6.1999 to 30.6.1999. Even on expiry of the leave period, when he did not return, by Communication dated 28.7.1999, he was directed to report on duty. As he remained absent continuously for a to period of days without sufficient reason, the Court of Enquiry was ordered by order dated 14th August, 1999 to investigate the circumstances under which he remained absent. On completion of Court of Enquiry, a show cause notice of proposed action dated 29.8.1999 was dispatched at his last known address. It was also not responded, as such, by order dated 1.10.1999, he was dismissed from service. 4. The appellant challenged the said order of dismissal dated 1.10.1999 by way of presenting a belated writ petition i.e. after one and half years on 20th March, 2001. The say of the appellant is that during the period of leave, fell ill in village Gajewala. He was administered local medicines but when its condition did not improve, he was shifted to Jodhpur in the unconscious condition. The say of the appellant is that during the period of leave, fell ill in village Gajewala. He was administered local medicines but when its condition did not improve, he was shifted to Jodhpur in the unconscious condition. There, he remained under the treatment of a 'Vaidya' in Ayurvedic Hospital for more than four months. It is also averred that he dispatched a letter dated 26.2.1999 through one of his relatives informing the Force authorities about illness and extension of leave. 5. The learned Single judge on thorough appreciation of material on record, rejected the version of appellant for the following reasons: "(i) The entire pleadings are vague. The appellant has not even disclosed the actual illness with which he was suffering; (ii) The medical certificate produced only indicates that he was advised for rest. It does not indicate the actual illness with which he was suffering; (iii) He has exaggerated the gravity of the sickness saying to the extent that he was shifted to Jodhpur in unconscious condition but it is falsified by the line of treatment given by a 'Vaidhya' in an Ayurvedic Hospital. The medical certificate only indicates that he was prescribed some medicines and diet and he was advised to take rest for one month i.e. from 26.6 99 to 26.7.99. (iv) He has not disclosed the name of the relative whom he handed over the letter to be dispatched for extension of leave. Copy of the said letter asking for extension of leave has not been produced." 6. On the other hand, the respondents have produced copy of Show Cause Notice dated 29.8.99 Annex.R/1, copy of Order of dismissal Annex.R/2, the Communication dated 6.7.99 Annex.R/3 and another Communication dated 20.7.99 Annex.R/4. A copy of Apprehension Roll sent to the Superintendent of Police has also been placed on record as Annex.R15. But the appellant did not bother to respond to any of the show cause notices. There is a report by the police that the appellant was absconding. 7. It is submitted by the learned counsel that the order of dismissal is in violation of principles of natural justice inasmuch he was not given any opportunity of hearing. It is also submitted that he made a representation icier Section 28A to the authorities concerned but the same has also not been responded, however no material has been placed on record to substantiate the fact. It is also submitted that he made a representation icier Section 28A to the authorities concerned but the same has also not been responded, however no material has been placed on record to substantiate the fact. Intact, the entire petition is nothing but a bundle of falsehood He is a person, who failed to respond even at a crucial time when - there was a call by the Nation. At the first instance, he can not complain as to violation of principles of natural justice, as there is sufficient material on record to show that he did not report on duty inspite of repeated notices. Ultimately, the authorities were compelled to resort to method of procuring attendance by issuing Apprehension Roll, asking the Superintendent of Police to apprehend and to hand-over him to the nearest B.S.F. Unit. He was to reported absconding. Even if the medical certificates produced from the Ayurvedic Hospital are accepted to be true. he was only relaxing in the Ayurvedic Hospital at Jodhpur. It is significant to notice that the Jodhpur is the B.S.F. Headquarter. If he had a slightest patriotism in his heart as a member of the Force, he could have conveniently reported at BSF Headquarter, Jodhpur. In these peculiar circumstances, even if there is a breach of any rule. the learned Single loop was absolutely right in refusing to exercise powers under Article 226 of the Constitution of India in favour of such a person. 8. In M.C. Mehta v. Union of India, reported in 1999 (6) SCC 237 , the Apex Court has observed that in certain situation, an order passed even in violation of principles of natural justice need not be set aside under Article 226 of the Constitution of India. 9. In S.L. Kapur's case, reported in 1980 (4) SCC 379 , the Apex Court has held that if upon admitted and indisputable facts, only one conclusion was possible then it is not necessary to quash the order, which is alleged to have been passed in violation of principles of natural justice. 10. On the facts stated above, it is abundantly clear that the appellant deliberately did not report on duty, more particularly when there was a call from the Nation in the "KARGIL WAR". We do not find any justified reasons to interfere with the order of the learned Single Judge. 11. 10. On the facts stated above, it is abundantly clear that the appellant deliberately did not report on duty, more particularly when there was a call from the Nation in the "KARGIL WAR". We do not find any justified reasons to interfere with the order of the learned Single Judge. 11. Consequently, the Special Appeal is dismissed summarily.Special Appeal Dismissed. *******