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2008 DIGILAW 17 (ORI)

Nimai Charan Bhoi v. State of Orissa

2008-01-07

G.C.MANDAL, J.M.PATTNAIK

body2008
ORDER J.M. PATNAIK, MEMBER (JUDICIAL) — This is an application under Section 19 of the Administrative Tribunal Act, 1985 filed by the applicant with a prayer to quash the order of dismissal under Annexure-4 series and the order of rejection of his repre¬sentations by the respondents. 2. The case of the applicant in brief is as follows :- That the applicant was appointed as a member of Home Guard in the district of Bolangir under Orissa Home Guard Act, 1961 from 1975 to 1981. While working as such, being satisfied with his honest and sincerity, he was appointed as a police constable vide Annexure-1 by the Superintendent of Police, Bolangir (Re¬spondent No.4). After completion of 8 months of service the applicant was sent to P.T.C. Angul on 7.4.1984 to undergo Consta¬ble Training course at Angul. After undergoing the training for three months the applicant suffered from fever and head-reeling from 26.4.1984 to 28.4.1984 and the applicant reported the matter before the Reserve Inspector, Angul who was looking after the training and instructed him to contact with the Principal of the Training Centre with regard to his ailments. The said authority did not provide any facilities for treatment to the applicant and no notice was given to applicant in spite of his ailment and ultimately even though the applicant was very much present during the said period i.e. from 26.4.1984 to 28.4.1984, the period was treated as “No pay” and the authority also did not consider it proper to call for any explanation nor give any opportunity to explain to have his say before passing such order. While undergo¬ing training the applicant again suffered from “AMEBIC DYSENTERY” during the period from 8.6.1984 to 17.6.1984. The applicant intimated the fact of his ailments to the Principal training Centre, Angul who advised the applicant to return to Bolangir for better treatment. Although the applicant awaited for two days in bed ridden condition at Angul, he was not provided any authentic letter or command certificate. But he was verbally directed to report his joining before the Superintendent of Police, Bolangir (respondent No.4). Although the applicant awaited for two days in bed ridden condition at Angul, he was not provided any authentic letter or command certificate. But he was verbally directed to report his joining before the Superintendent of Police, Bolangir (respondent No.4). Accordingly the applicant reported his joining report before the Reserve Inspector as well as Superintendent of Police, Bolangir separately and after such joining the applicant was intimated orally that no official letter has been received from the Principal, Training College, Angul (Respondent No.5) and after such letter would be received from the Respondent No.5 he shall be intimated accordingly. The applicant was under treatment under Assistant Surgeon, Government Hospital, Tusura, Bolangir as per medical certificate vide Annexure.3. According to the applicant he was compelled to leave P.T.C. Angul being instructed orally by the Principal Training College, Angul (Respondent No.5) as his condition deteriorated and the training authority did not take any action to send the applicant for better treatment for his ailment and there was no attendant to look after him vide office order No.1462 dated 29.6.1984 which was communicated to the applicant in D.O. letter No.11833 dated 25.7.1984. The applicant after receipt of the dismissal order approached this authorities concerned for sympathetic consideration and finally he filed a representation dated 13.3.1985 before the respondents. But the said representation of the applicant was rejected by the Respond¬ent No.2 vide letter No.27479 dated 3.7.1985 vide Annexure-5. The applicant approached the different authorities ventilating his grievance vide Annexure-6 series which were rejected vide Annex¬ure-8. Hence he has approached this Tribunal with a prayer to quash Annexure-4 series and Annexure-8. 3. The respondents filed counter controverting the allega¬tions made in the O.A. and their case is that as per the provi¬sions made in Rule-49 of the P.T.C. Management and the P.M.R.-1046(O) all trainees who report sick shall fill up P.M. Form No.152 and get themselves admitted in the Police Hospital located inside the P.T.C. Campus. The sick trainees are generally sent to Police Hospital through a responsible Havildar entering his name in the sick register of P.T. Angul. But the applicant violated the Government Principle and remained absent from training centre during the period from 26.4.1984 to 28.4.1984 for which the period was treated as no pay by the P.T.C. Angul for the first time. 4. But the applicant violated the Government Principle and remained absent from training centre during the period from 26.4.1984 to 28.4.1984 for which the period was treated as no pay by the P.T.C. Angul for the first time. 4. The applicant again remained absent from P.T.C. Angul, Training Centre without leave or permission from the higher authority from 8.6.1984 to 17.6.1984. Accordingly the Principal, P.T.C. Angul was pleased to pass the orders for his discharge from service with effect from 29.6.1984 as the applicant was not found suitable for the post of constable and did not attend the basic course of constable training. Their further case is that as per the provisions of law the applicant was undergoing training at P.T.C. Angul and there is a Government Hospital at P.T.C. Angul for treatment of trainees and staff but he did not get himself treated either at P.T.C. Hospital or Sub-Divisional Hospital, Angul and intentionally absconded from P.T.C. Manage¬ment Rule and came to his native village, Tusura and produced a medical certificate after a long interval from M.O. P.H.C., Tusura which is not admissible. Wilful dereliction of a trainee from training centre without intimation amounts to indisciplined conduct. Their further case is that the applicant did not prefer any appeal to the higher authority or to the Government during stipulated time limit as per P.M.R.-852-A. But after long gap represented to the Chief Minister, Orissa which was received in the office of the D.G. and I.G. of Police on 30.11.1994. The Government was pleased to verify all the documents and rejected his appeal for his reinstatement in service under Annexure-C. Hence it is prayed that the O.A. may be dismissed. 5. The learned counsel for the applicant submitted that before passing the order of retrenchment under Annexure-4 series the authority had not called for any explanation from the appli¬cant to have his say with regard to the alleged unauthorized absence and as such the order under Annexure-4 series and Annex¬ure-8 are illegal being arbitrary and non application of mind and also violative of principle of natural justice and the said orders are liable to be quashed. 6. 6. The learned Standing Counsel for the respondents, on the other hand, contended that the applicant being a probationary constable intentionally absconded from P.T.C. Angul without leave or permission or any intimation to the higher authority in viola¬tion of the P.T.C. Rules and he has been rightly discharged from service as he was not found suitable for the post of constable and did not attend the basic course of constable training. He further submits that the applicant also did not prefer any appeal to the higher authority or to the Government during stipulated time limit as per the P.M.R-852-A. Hence he submits that the O.A. is devoid of any merit and the same may be dismissed. 7. We have heard the learned counsel for both the parties at length and carefully perused the O.A., counter and documents annexed thereto. 8. Undisputedly the applicant was provisionally selected for appointment as a constable in Bolangir district and was sent for training to P.T.C. Angul where he joined on 7.4.1984. 9. The applicant was found absent from the P.T.C. Angul from 24.4.1984 to 28.4.1984 for which this period was treated as “No pay”. It is also not disputed that the applicant again re¬mained absent from duty for the period from 8.6.1984 to 17.6.1984. The contention of the learned counsel for the appli¬cant is that the applicant was suffering from “AMEBIC DYSENTERY’ during this period and the applicant has reported this fact to the Principal, P.T.C. Angul who advised him to return back to Bolangir for better treatment but he was not provided with any authentic letter or command certificate. On the other hand, the contention of the learned Standing counsel is that if the train¬ees who report sick shall get themselves admitted in the Police Hospital located inside the P.T.C. Campus as per the P.T.C. Management Rules but the applicant in violation of such rule has left for his native village without any permission for which he was discharged from service with effect from 25.6.1984. The main contention of the learned counsel for the applicant is that before dismissal of the applicant from service the appli¬cant was not given any notice to show-cause nor any proceeding was initiated against him. The learned Standing Counsel has submitted for some time to get instructions from the department whether there was any departmental proceeding or not. The main contention of the learned counsel for the applicant is that before dismissal of the applicant from service the appli¬cant was not given any notice to show-cause nor any proceeding was initiated against him. The learned Standing Counsel has submitted for some time to get instructions from the department whether there was any departmental proceeding or not. But no submission was made thereafter by the learned Standing Counsel regarding initiation of any such proceeding against the appli¬cant. Therefore, it is deemed that no such proceeding was initi¬ated against the applicant before the discharging him from serv¬ice and no notice of show-cause has also been issued prior to his dismissal. 10. In support of his case, the learned counsel for the applicant has relied on the decision of the Hon’ble Supreme Court in A.I.R. 2000 S.C. 1080 (V.P., Ahuja, appellant-versus-State of Punjab and others, respondents), (2006) 1 ATT (OAT) 154 (Rasananda Patra, applicant-versus-State of Orissa and others), 72 (1991) C.L.T. (O.A.T.) 11 (Ananda Chandra Paikray-versus-State of Orissa) and 73(1992)) 78 (Jyoti Ranjan Kar, applicant-versus- State of Orissa, represented by Secretary to Government, Home department and others). 11. Law is well settled that a probationer or a temporary servant is also entitled to certain protection and his service cannot be terminated arbitrary nor can those services be termi¬nated in a punitive manner without complying with the principles of natural justice (A.I.R. SC 1080, followed). The impugned order was issued without making any enquiry and giving him opportunity of being heard in the matter. In the decision of this Tribunal (supra), this Tribunal have quashed the order of dismissal which was passed without giving opportunity of being heard to the applicant of those cases. The present case is squarely covered by the decision of those cases. In the instant case no explanation was called for from the applicant and as such the principle of natural justice have been violated. 12. In the above premises, we are inclined to hold that the dismissal order passed against the applicant is not sustainable as it was passed in violation of the principle of natural justice. Therefore, while quashing the order of dismissal, we direct that the applicant be reinstated in service forthwith and be allowed to complete the training course of constable and after successful completion of training the applicant be absorbed permanently as per the provisions of police manual rules. Therefore, while quashing the order of dismissal, we direct that the applicant be reinstated in service forthwith and be allowed to complete the training course of constable and after successful completion of training the applicant be absorbed permanently as per the provisions of police manual rules. Howev¬er, he will not be entitled to his salary and other financial benefits for the period he was out of service. The respondents are at liberty to proceed against the applicant for the alleged misconduct after giving him due opportunity of being heard in the matter. 13. In the result, the O.A. is allowed of with the above observation/direction. No cost. G. C. MANDAL, MEMBER (ADMN.) I agree. O.A. allowed.