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Madhya Pradesh High Court · body

2005 DIGILAW 1114 (MP)

S. P. Tiwari v. Union of India

2005-10-28

A.K.SHRIVASTAVA

body2005
ORDER 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking following reliefs: (i) That, this Hon'ble Court be pleased to issue a writ, order or direction in the nature certiorari thereby quashing the sentence passed by the respondent No.3 on 25th September, 1999. (ii) That, this Hon'ble Court be pleased to issue a writ, order or direction in the nature of mandamus thereby directing the respondents immediately reinstate the petitioner in service with all consequential benefits including pay and allowances. 2. The contention of learned counsel for the petitioner is that petitioner applied for leave and without obtaining its sanction he proceeded on leave and did not join duty for 33 days as a result of which the petitioner was subjected to a departmental enquiry. The following charges were framed against the petitioner: Charge No.1 : Absenting himself without leave -- In that he, on 14 August 1999 at 1400 hrs. while dispatched from FN HQ to report to his Coy for duty at BQF Basti Ram Lal absented himself without leave till 16.9.1999 (FN). Charge No.II : An act prejudicial to good order and discipline of the Force -- In that he, in the month of Aug. 1999 , while absenting without leave, approached DO BSF directly through a letter for his posting out of 142 Bn BSF, thus violating the channel of command. 3. After holding a departmental enquiry the disciplinary authority found petitioner to be guilty of the charges since both the charges were found to be proved and eventually the impugned order Annexure P-3 dated 25th September, 1999 was passed by respondent No.3 and he was dismissed from his services under sections 19(a) and 40 of the Border Security Force Act, 1968. 4. Feeling aggrieved by the order of dismissal Annexure P-3. the petitioner preferred a departmental appeal which was dismissed on 25th September, 2003 by respondent No.2. Hence this petition. 5. The contention of learned counsel for the petitioner is that he is the resident of district Satna and since his house was collapsed on account of heavy rains and his mother was seriously ill, therefore he submitted an application for obtaining the leave and proceeded to his home place. The petitioner remained absent from his duty with effect from 14.8.1999 to 15.9.1999. According to the petitioner he submitted his joining on 16.9.1999. The petitioner remained absent from his duty with effect from 14.8.1999 to 15.9.1999. According to the petitioner he submitted his joining on 16.9.1999. The petitioner was posted at Khemkaran in Punjab. Since the departmental appeal of the petitioner was also dismissed hence he has filed this present petition. 6. A preliminary objection in regard to the territorial jurisdiction has been raised by Shri Nekhra, learned counsel for the respondents and has submitted that since the order Annexure P-3 was issued and served on petitioner at Khemkaran (Punjab) therefore, this Court is not having any territorial jurisdiction. In support of his contention learned counsel for the respondents has placed reliance on a Single Bench decision of Allahabad High Court in Civil Miscellaneous Writ Petition No.35438 of 2002 (Indra Gyan Shukla v. Union of India and others), decided on 24.9.2003. On the other hand Shri Pandey, learned counsel appearing for the petitioner by placing reliance on the decision of Supreme Court Dinesh Chandra Gahtori v. Chief of Army Staff and another [ (2001)9 SCC 525 ], which was relied by the Division Bench of this Court in the case of Ram Narain Singh v. Chief of the Army Staff and others [ 2002(2) JLJ 86 =2002(2), MPLJ 623], has submitted that the Chief of Army Staff may be sued anywhere in the country and therefore this Court is having territorial jurisdiction. 7. After hearing learned counsel for the parties on the preliminary I objection, I am of the view that the preliminary objection in regard to territorial jurisdiction is devoid of any substance. In the case of Dinesh Chandra Gahtori (supra), employee of the army staff was subjected to Court martial and was awarded the sentence of dismissal from service. The High Court dismissed the writ petition at the admission stage by holding that the summary Court martial proceeding were conducted in the State of Punjab and orders were also passed there and therefore the writ petition was dismissed on account of territorial jurisdiction. The decision of the High Court was assailed by Dinesh Chandra by filing petition in the Supreme Court. The decision of the High Court was assailed by Dinesh Chandra by filing petition in the Supreme Court. The Supreme Court categorically held that the High Court should have taken into consideration the fact that the Chief of Army Staff may be sued any where in the country and placing reliance only on the cause of action as the High Court did it was not found to be justified. The apex Court allowed the appeal by setting aside the order of the High Court and directed the High Court to decide the petition on its own merit. The said decision of the apex Court Dinesh Chandra Gahtori (supra), was placed reliance by the division bench of this Court in the case of Ram Narain Singh (supra). In the present case also the impugned order Annexure P-3 was passed and served to the petitioner in Punjab, but, the important fact which cannot be marginalized and blinked away is that the Chief of the Army Staff can be sued anywhere in the country as held by the Supreme Court in the case of Dinesh Chandra (supra). On these premised reasons and by following the decision of Supreme Court in the case of Dinesh Chandra (supra), and the Division Bench decision of this Court Ram Narain Singh (supra), the preliminary objection in regard to the maintainability of this writ petition on the ground of territorial jurisdiction cannot be accepted and the same is hereby overruled and this petition is held to be maintainable. 8. On the merit of the petition, it has been contended by learned counsel appearing for the petitioner that for 33 days (14.8.1999 to 15.9.1999) the petitioner remained absent though he submitted application for obtaining the leave. In that regard learned counsel for the petitioner has invited my attention to the averments made in para 5.7 of the petition. It has been further contended by learned counsel by reading the averments in this para that the petitioner received a telephonic message that his house has been totally collapsed due to heavy rain-fall and thereafter he rushed to his home place to face the consequences. In that regard the petitioner submitted the certificate of the Gram Sarpanch in regard to the collapse of his house and the copy of that certificate has also been placed on record as Annexure P-4. In that regard the petitioner submitted the certificate of the Gram Sarpanch in regard to the collapse of his house and the copy of that certificate has also been placed on record as Annexure P-4. Apart from this the stand of the petitioner is that his mother was also ill and advised to take rest with effect from 1.8.1999 to 30.9.1999 and the medical certificate was also submitted. A copy of which has been placed on record as Annexure P-5. In the reply to the averments made in para 5.7 of the petition, the respondents have denied the fact that the petitioner ever submitted any application for obtaining the leave. It has further been pleaded in para 15 of the return that the petitioner never informed his senior officer/SO regarding his house collapse due to heavy rain-fall though it has been admitted in the return that the petitioner submitted certificate regarding collapsing of house issued by the Sarpanch as well as the medical certificate of his mother in the disciplinary enquiry. The stand of the respondent is that since the certificate of Sarpanch was not attested by any officer like BDO, SDO or Tehsildar etc. and the medical certificate of the mother is of private clinic and the same is not attested by the District Chief Medical Officer/Government servant, no credence could be given to these documents. 9. The contention of learned counsel for the petitioner is that for 33 days the petitioner remained absent on account of above said unavoidable circumstances. Since the house was collapsed due to the act of the God therefore the petitioner rushed to his home place and therefore if he remained absent for 33 days from his service, the punishment which has been inflicted appears to be shockingly disproportionate. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court in the case of Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and others [ (2004)4 SCC 560 ]. 10. Refuting the aforesaid submission of learned counsel for the petitioner it has been argued by learned counsel for the respondent that since the petitioner was an employee of Army, therefore his services were required and he was not allowed to behave indiscipline manner and was required to submit application for obtaining the leave and only after obtaining its sanction, he could go to the home town. It has also been putforth by him that looking to the totality of facts and circumstances, the punishment of dismissal from service cannot be said to be in excessive or shockingly disproportionate. By inviting my attention to the averments made in para 3 and 22 of the return it has been argued that looking to the previous bad record of the petitioner, the punishment which has been inflicted cannot be said to be shockingly disproportionate. 11. After having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed in part. 12. This fact has not been disputed in the return, rather it has been admitted that the petitioner did submit the certificate issued by the Sarpanch in regard to the collapse of his house. Similarly this fact has also not been disputed that the petitioner submitted the medical certificate of his mother. The petitioner has filed those certificates in this petition also as Annexure P-4 and P-5 respectively. The respondents have not given any credence to these certificates simply on the ground that the certificate of the Sarpanch has not been attested by any Government servant like BDO, SDO, Tehsildar etc. Similarly, the medical certificate of the mother was discarded on the ground that it was of a private clinic and was not attested by any District Chief Medical Officer/Government servant. The view of this Court is that this appears to be no ground to disbelieve the hallmark of these two documents. Learned counsel for the respondents has not pointed any statutory rule or any order of the respondents that if such a certificate is issued by Sarpanch of the Gram Panchayat it is to be attested by the Government officer like BDO, SDO etc. The second reason is that if the inquiry officer was of the view that the certificate is doubtful then he should have given an opportunity to the petitioner to produce the certificate by attesting it from the Government officer. So far as the authenticity of I medical certificate about which a big question mark has been put by the respondents, is concerned, suffice it to say that it is the choice of a person to get him/her examined and treated at the clinic and hospital of his/her own choice. So far as the authenticity of I medical certificate about which a big question mark has been put by the respondents, is concerned, suffice it to say that it is the choice of a person to get him/her examined and treated at the clinic and hospital of his/her own choice. It is not necessary that he/she should be treated only in the Government hospital, then only it can be ascertained that he/she is ill. In the present social system it is well known that the patient is not being cared in the Government hospital and even a class IV employee or the persons like Coolie they take the medical treatment from private clinic. Apart from this, as I have held hereinabove that the enquiry officer should have asked the petitioner to furnish the medical certificate attested by Government servant. There is nothing on the record in order to show that any efforts were made by the respondents in order to hold that the house of the petitioner was not collapsed or his mother was nor ill. In absence of any document to the contrary, disbelieving these two documents on the above said grounds, appears to be arbitrary and the arbitrary action cannot be upheld and affirmed before the law Court. In the case of Shri Bhagwan Lal Arya (supra), the apex Court held that if a delinquent remained absent for more than two months, and the punishment order dismissing him from service was found to be shockingly disproportionate by the Supreme Court. If the ratio decidendi of the decision of Shri Bhagwan Lal (supra), is tested on the touchstone of the present facual scenario, I am of the view that the case in hand is on better footing for the simple reason that in the present case the delinquent remained absent for 33 days while in the case of Shri Bhagwan Lal Arya (supra), the delinquent remained absent for more than two months. 13. It has been vehemently argued by learned counsel for the respondents by inviting my attention to the averments made in para 3 and 22 of the return and has submitted that the past record of the petitioner is not shining, on the other hand it is blackish since he was punished for four occasions. 13. It has been vehemently argued by learned counsel for the respondents by inviting my attention to the averments made in para 3 and 22 of the return and has submitted that the past record of the petitioner is not shining, on the other hand it is blackish since he was punished for four occasions. It be seen that this was not the charge against the petitioner and no opportunity was provided to him explaining about those punishments. Though there is averment in that regard in the return but no order has been placed on record. The view of this Court is that if a specific charge in that regard would have been framed an opportunity would have been provided to the petitioner to explain about those punishments. In this view of the matter, since that was not the charge, therefore, by considering the case of the petitioner in that regard runs contrary to the dictum Audi alteram partem and therefore this cannot be said to be a ground to hold that the impugned punishment of dismissal is not shockingly disproportionate. 14. Since I have already held hereinabove that on account of the act of God as the house of the petitioner collapsed due to heavy rains, he rushed to his home place and therefore the punishment order of dismissal, according to me, from all the angles appears to be shockingly disproportionate. 15. Ex consequefi the impugned order of dismissal from service of petitioner Annexure P-3 dated 25.9.1999 which has been affirmed by the appellate authority Annexure P-6 dated 25.9.2003 both are hereby quashed and set aside. The apex Court in the case of Shri Bhagwan Lal Arya (supra), after setting aside the order of removal imposed the punishment that the period during which the delinquent remained absent from duty and the period calculated up to the date on which he reported back on duty pursuant to the judgment of the apex Court shall not be counted as a period spent on duty. By accepting the same anology, the petitioner is hereby punished by treating the period he remained absent from duty as well as the period till he submits his joining report in pursuant to the order which I am passing today that period shall not be counted as a period spent on duty. Let necessary orders be issued by the respondents taking back the petitioner in service. Let necessary orders be issued by the respondents taking back the petitioner in service. The petitioner shall not be entitled for any back wages. 16. Ab judicatio, this petition is allowed in part to the extent indicatedhereinabove with no order as to costs.