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2009 DIGILAW 368 (JK)

Rawail Dass v. Union Of India

2009-07-28

NIRMAL SINGH

body2009
1. "If you talk to God, you are praying; if God talks to you, you have schizophrenia. If the dead talk to you, you are a spiritualist; if God talks to you, you are a schizophrenic." The above proverb was used by Thomas Szasz in `The Second Sin (1973). In view of the above, it can be said that even the `God would listen to the prayers which are being made by the human beings and other creatures on the earth with clear hearts. If this is not so, the whole world would come to a stand-still. 2. In the case in hand, the petitioner made a request to the respondent authorities for voluntary retiring him from service due to his inability to render further service on account of some domestic problems but the said request was not accepted and it is due to the said non-action on the part of respondent authorities in accepting the request of the petitioner for voluntary retirement even though he had completed more than twenty years of active service that the petitioner has been compelled to approach this court through the medium of present petition. 3. The facts in brief are that the petitioner was enrolled as Constable in Security Service Bureau on 7th of Aug70. He continued to serve as such till 6th of Aug92. It has been pleaded in the writ petition that on 7th of Aug92, when the petitioner was posted at B-Coy Akhnoor, he suffered from mental disorder due to which he was unable to perform his duties. He remained under the treatment of one Dr J.R.Thapa, a Consultant Psychiatrist, Government Medical College, Jammu. As the petitioners condition did not improve and he being unable to perform his duties, an application was moved by him before the authorities concerned for verification of his service documents. The petitioner also applied for voluntary retirement. The said application of the petitioner, however, was not considered. The petitioner thereafter served a legal notice upon the respondents for considering his case for voluntary retirement and releasing of pensionary benefits in his favour as the petitioner had completed the requisite service entitling him to receive the pension and other pensionary benefits. Meanwhile, vide order dt. 9th of July93, passed by the respondents, the petitioner came to be removed from service after holding an ex-parte departmental enquiry. 4. Meanwhile, vide order dt. 9th of July93, passed by the respondents, the petitioner came to be removed from service after holding an ex-parte departmental enquiry. 4. Thereafter, a writ petition bearing OWP No. 2/98, was filed which was dismissed vide order dt. 17th of July2000, on the ground that the same has been filed by the wife of the petitioner. A Letters Patent Appeal came to be filed against the aforesaid order bearing LPA(OW) No. 244/2000. A Division Bench of this court vide order dt. 16th of April02, disposed of the LPA with the following directions: "The appellant is left free to challenge the oder of removal in appeal. In case this appeal is preferred, this would be decided on merits and not on the ground of limitation. The plea taken by the appellant that he had applied for voluntary retirement, be also gone into. The appellant had rendered 22 years of service. This aspect of matter be also taken note of. It is hoped that the respondents shall take note of mental faculties of the appellant and if he is really suffering, he be dealt with compassion. The question viz-a-viz quantum of punishment would be specifically gone into. The appeal be preferred within normal period, which is prescribed. The period of limitation begins from today. Needless to mention that speaking order would be passed and efforts would be made to dispose of the appeal at the earliest, preferably within six months. Any observation made by the learned Single Judge or in this appeal, would not be taken as final expression of opinion." 5. In view of the liberty granted by the Letters Patent Bench vide aforementioned order, the petitioner preferred an appeal before the authority concerned. The said appeal came to be dismissed vide order impugned dt. 20th of Aug02. It is this order which is subject matter of challenge in the present petition. 6. Learned counsel for the petitioner submits that the respondent authorities while dismissing the appeal of the petitioner vide impugned order, have not taken into consideration the observations made by the Division Bench while disposing of the Letters Patent Appeal. It is further stated that the petitioner having been unable to perform his duties due to mental disorder had applied to the authorities concerned for verification of his service and further accepting his request for voluntary retirement but the same was not considered. It is further stated that the petitioner having been unable to perform his duties due to mental disorder had applied to the authorities concerned for verification of his service and further accepting his request for voluntary retirement but the same was not considered. It is stated that this aspect of the matter was not taken into consideration while passing the order impugned and it is only on the alleged past service record of the petitioner that an observation came to be made by the appellate authority that the petitioner has been rightly removed from service. It is submitted that the petitioner having completed more than 20 years of active service is otherwise entitled to claim pension and other pensionary benefits in accordance with the rules. 7. On notice, respondents have filed counter. It is stated that petitioner during his service tenure of 22 years was awarded confinement to quarter guard 11 times, 3 times line confinement and there were adverse entries in his ACRs also for illegal absence on his part. It is admitted that the petitioner had applied for verification of his service which application was forwarded to the Director of Accounts, New Delhi, and the same was under process. It is, however, stated that the petitioner had not made any request for voluntary retirement in accordance with the rules. It is stated that before any decision could be taken by the authority concerned, the petitioner proceeded on unauthorized absence and left his place of duty without prior permission from the said authority. It is stated that the petitioner deserted from Sialsui Camp on 6th of Aug92 leaving behind his personal weapon and thereafter did not turn up. He was declared deserter and notices were sent to his residential address. As no response was shown by him, the Disciplinary authority was left with no option but to proceed against him in ex-parte. It is stated that the charge sheet was served upon the petitioner on 17th of March93 , through SHO Police Station, Jourian, as per the acknowledgment dt. 10th of Aug93. It is thus stated that petitioner has rightly been removed from service and is not entitled to claim pension or any pensionary benefit. 8. Heard learned counsel for the parties and perused the record which has been produced by the respondents. 9. 10th of Aug93. It is thus stated that petitioner has rightly been removed from service and is not entitled to claim pension or any pensionary benefit. 8. Heard learned counsel for the parties and perused the record which has been produced by the respondents. 9. A perusal of the record shows that the petitioner during his service availed different type of leave which period has been regularised by converting the same into earned leave or leave of whatever kind due. One such letter converting his casual leave into earned leave is dt. 31st of March82. There is another letter written by the Company Commander B-SSB Company Akhnoor to the Commandant, Group Centre-SSB, Channi Himat, Jammu, where the authority concerned has been requested to regularize the period of absence of the petitioner from 16th of June83 to 30th of July83, by granting leave of the kind due. There is another letter dt. 14th of April84, to the same effect whereby the absence of the petitioner for the period 19th of Feb84 to 14th of April84, has been sought to be regularized as leave without pay by the Officiating Company Commander-SSB, Company Camp at G.C. Jammu. The said letter has also been addressed to the Commandant, Group Centre-SSB, Jammu. The said leave period of the petitioner has been regularized as medical leave and commuted leave on medical grounds. Once the petitioners absence from duty was treated on leave, then the respondents cannot take a stand that the petitioner remained unauthorisedly absent prior to the period in question. The order impugned to that effect taking note of the earlier absence on the part of the petitioner which period stands regularized cannot be said to be an order passed in accordance with the law. A perusal of the record further shows that the period of absence from duty w.e.f. 11th of July91 to 8th of Oct91, 9th of Oct91 to 27th of Nov91 and 28th of Nov91 to 8th of Dec91 also stands regularized in favour of the petitioner as commuted leave on medical grounds and EOL on medical grounds. The said aspect of the matter has not been taken note of properly by the respondent authority while passing the order impugned. 10. The record produced by the respondents further shows that the petitioner moved an application dt. The said aspect of the matter has not been taken note of properly by the respondent authority while passing the order impugned. 10. The record produced by the respondents further shows that the petitioner moved an application dt. 9th of April92 before the authority concerned for verifying his 20 years of service and accepting his request for voluntary retirement. In pursuance to the request made by the petitioner, the office concerned issued a certificate to the authority concerned showing the net qualifying service of the petitioner as 20 years, 7 months and 27 days w.e.f. 7th of Aug70 to 31st of March92. But so far as the request of the petitioner regarding proceeding on voluntary retirement is concerned, nothing was done by the respondents. Once the petitioner had shown his inability to render further service, it would have been fair enough on the part of authorities concerned to accept his request for voluntary requirement and grant him pension and other pensionary benefits as he had completed the minimum required service for the said purpose. 11. It be further seen that the Letters Patent Bench while disposing of the LPA filed by the petitioner had specifically observed that the plea of the petitioner that he had applied for voluntary retirement would be gone into as he had rendered 22 years of service. It was further observed that the medical certificates to be produced by the petitioner would also be taken note of and if he is suffering from any mental faculty, the same would be dealt with accordingly. A perusal of order impugned, however, shows that the authority concerned has not considered the matter in terms of the observations made by the Letters Patent Bench while disposing of the appeal. The authority while passing the order impugned has observed as under:- "...........So, I would not believe these certificates on account of position explained. During 20-22 years of service annual medical check up had been done every year. Not on a single occasion mental illness/ depression was ever noticed. The civil Hospital Jammu is not far away from Divn hqrs or from GC Jammu, any one on his behalf could approach GC or Div HQ regarding his sickness & obtain the help from Organisation which always the case. Even medical certificates though procurred do not indicate if ever he was admitted in hospital." 12. The civil Hospital Jammu is not far away from Divn hqrs or from GC Jammu, any one on his behalf could approach GC or Div HQ regarding his sickness & obtain the help from Organisation which always the case. Even medical certificates though procurred do not indicate if ever he was admitted in hospital." 12. The authority concerned has further observed as under:- "....The order of removal is just and appropriate keeping his past service record and present desertion in mind." 13. A perusal of the above observations made by the authority concerned shows that the said authority has not taken into consideration the medical certificates placed on record by the petitioner. The said certificates have been issued by the Sub District Hospital, Akhnoor, and therefore, the stand of the authority that the same have been procured cannot be accepted. Even otherwise, as noticed above, the authority while passing the order impugned has taken note of the past service record of the petitioner regarding his alleged unauthorized absence which period was regularized by either converting the casual leave into earned leave, treating the period as commuted leave on medical grounds and also as leave without pay. Therefore, once the period of absence on the part of petitioner whether unauthorized or otherwise has been regularized by the competent authority, then, the observation by the authority while passing the order impugned that the order of removal is just and appropriate keeping in view the past service of the petitioner, cannot be said to be an observation which is in accordance with the law and has to be struck down. If the authority at the relevant point of time was of the opinion that the petitioner has remained unauthorizedly absent for a particular period, then, the same should not have been regularized and action should have been taken against the petitioner there and then. Having not done so, the authorities are estopped from taking action against the petitioner at a later stage for a period which stands already regularized. 14. Even otherwise, as noticed above, the petitioner had rendered about 22 years of service and he had to his credit 20 years, 7 months and 27 days of service as a net qualifying service w.e.f. 7th of Aug70 to 31st of March92. 14. Even otherwise, as noticed above, the petitioner had rendered about 22 years of service and he had to his credit 20 years, 7 months and 27 days of service as a net qualifying service w.e.f. 7th of Aug70 to 31st of March92. Therefore, taking this aspect of the matter into consideration and the fact that the petitioner had moved an application for voluntary retirement being unable to render further service on account of domestic problems, the authority concerned, as a noble employer, should have accepted the request of the petitioner and allowed him to proceed on voluntary retirement along with the pensionary benefits as the petitioner was having the minimum qualifying service for being eligible to get this benefit. In this regard, it would be apt to refer to the judgment of the Apex Court in the case reported as AIR 2000 SC 2769, Manjushree Pathak v. The Assam Industrial Development Corporation Ltd and others. In the above case, the petitioner before the Apex Court had also moved an application for voluntary retirement after completion of nearly 23 years of service and 42 years of age. There was no impediment in his way to seek voluntary retirement but even then the authority concerned did not consider his request. The Apex Court under such circumstances observed as under:- "..........On the date when the appellant submitted her application for voluntary retirement, neither vigilance enquiry nor any disciplinary proceedings were pending or contemplated. In other words as per clause 5 she was not prevented from making an application to opt for voluntary retirement. The recommending authority as per Clause 4 of the Scheme recommended for acceptance of the application on 7.12.1995 itself. We are unable to understand why the Managing Director of the respondent Corporation did not accept the same although it was required to be accepted with immediate effect as per para 2 of the prescribed application form. No doubt, as per Clause 8.1 of the Scheme extracted above, the Management had discretion to accept or reject the request from any employee for voluntary retirement viewing the organizational requirement any other relevant facts but that does not mean that the respondent corporation being an authority coming within the purview of Article 12 of the Constitution can abdicate its duty to act reasonably and fairly in exercise of discretion. It is strange as to why the Managing Director of the respondent Corporation, the competent authority to accept the application made for voluntary retirement, did not act on it at all till 17.2.1996. He ought to have exercised his discretion as per clause 8.1 if not immediately at least within a reasonable time." 15. It was further observed that: "In the case on hand the Managing Director of the Corporation has failed to act reasonably and fairly. He abdicated his duty by not exercising discretion at all in the light of facts and circumstances of the case stated above in sufficient details." 16. In the present case also, as noticed above, the petitioner moved application before the authority concerned for verifying his service and also for considering his case for voluntary retirement in view of the domestic problems being faced by the petitioner. The authority concerned when considered the plea of the petitioner for verifying the service and found his net qualifying service as aforementioned, then, the said authority should have acted fairly and reasonably by accepting the request of the petitioner for voluntary retirement keeping in view the problem being shown by the petitioner. Having not done so, it can safely be held that the authority concerned has not performed its duty judiciously. 17. Further, as to on what basis, the authority has concluded that the the medical certificates produced by the petitioner are fake is not forthcoming from the record. As indicated above, the petitioner produced the certificates which were issued in his favour by the concerned Sub District hospital. The authority, in order to reach to a just conclusion, should have verified the said certificates which exercise was not undertaken by the respondents showing the casual approach on their part, which act, as indicated above can be termed as an unfair and unreasonable act. 18. For the reasons mentioned above, this petition is allowed. The petitioner would be deemed to have retired from service w.e.f. the date, he submitted his application for voluntary retirement. As the petitioner has completed the minimum qualifying service, he would be entitled to pension and other pensionary benefits which shall be released in his favour within a period of two months from the date, a copy of this order is made available to the respondents by the petitioner or his counsel. As the petitioner has completed the minimum qualifying service, he would be entitled to pension and other pensionary benefits which shall be released in his favour within a period of two months from the date, a copy of this order is made available to the respondents by the petitioner or his counsel. The arrears of pension shall also be calculated and released in favour of the petitioner within the aforementioned stipulated period. In case, the appropriate orders for release of pension and other pensionary benefits are not passed and the arrears are not released within the period aforementioned, then, the petitioner shall be entitled to interest on arrears of pension @9% per annum and this shall be payable by the person concerned who is responsible for causing the delay. Disposed of accordingly.