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2007 DIGILAW 740 (PAT)

Anil Kumar v. Union Of India

2007-04-12

AJAY KUMAR TRIPATHI

body2007
Judgment A.K.Tripathi, J. 1. Heard learned Counsel for the parties. 2. The petitioner was appointed as a constable after due selection under Indo-Tibetain Border Police Force. The offer of appointment is contained in annexure-A. The petitioner thereafter reported for training on 24.10.2003 and was attached with 12th Battalian On 24.10.2003 he complained of fever and therefore was admitted to the Academy Hospital on 28.3.2003. When he did not respond to the treatment he was referred to Doon Hospital, a Government Hospital. The doctors carried out investigation and from the reports it was established that the petitioner was suffering from Pleural Effusion i.e. Tuberclosis. After four to five days stay in Doon Hospital the petitioner was sent to home. 3. Subsequently an order dated 4.2.2004 was issued to the petitioner and by virtue of this order his offer letter with regard to appointment was withdrawn. The reason given for such decision was his illness which was confirmed on due medical investigation. 4. The petitioner has challenged the order on the ground that after his return he himself verified from the local medical practitioner but nothing of the kind, according to him, was found. He ought to have been placed before the Medical Board for confirmation as to whether the petitioner was suffering from the said disease but no step was taken in this regard. No enquiry or opportunity was given to him also before the order impugned was passed. 5. The petitioner was on probation in terms of the offer letter contained in annexure-A. The period of probation was initially for a period of two years. Therefore, he was not appointed on a substantive basis and he is discharged for the reason given in annexure-2. To that extent it cannot be said to be an arbitrary or illegal exercise of power. 6. So far as putting the petitioner before the Medical Board is concerned, the petitioner was hospitalised in the Academy Hospital and even thereafter was referred to a Government hospital i.e. Doon Hospital and investigation was carried out against him which confirmed that he was suffering from Tuberclosis. Looking at the nature of the job and the rigour of the assignment the authority rightly did not retain him in service. No second opinion of the impugned order is required because opinion of the doctor was already available to the authority. 7. Looking at the nature of the job and the rigour of the assignment the authority rightly did not retain him in service. No second opinion of the impugned order is required because opinion of the doctor was already available to the authority. 7. The petitioner has made yet another grievance which is stated in paragraph-24. He states that from the period of joining till the period of discharge the petitioner was not given even a penny. In fact, he further states that he was unceremoniusly despatched home and no warrant was issued in his favour to facilitate his journey back home. The authorities in their counter affidavit have not answered this assertion of the petitioner. Only they have said is that due to cancellation of the appointment proposal no financial assistance could be allowed to the petitioner. The stand of the respondents in this regard does not seem to be a valid one. Once the petitioner reported and joined the battalian and sent for training he did acquire status of a civil servant even though temporary. It is a quasi status subject to confirmation on completion of probation period, but to say that merely because the petitioner was on probation he had no right at all is totally contrary to service jurisprudence. 8. It is fact that the petitioner could not undergo training due to his illness and unfortunately for him he spent most of his time in hospital but then he was under the control of the authority of his superior and only on 4.2.2004 the relationship of master and servant severed. 9. That being the position even though this Court does not want to interfere with the order of removal passed against the petitioner but the petitioner is entitled for payment of the emolument to which all other trainees or probationers were entitled to. The authority will take steps to meet this part of the abligation preferrably within a period of three months from the date of communication or production of the copy of this order. 10. This writ application is allowed in part limited to the relief which has been granted to the petitioner indicated above.