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2010 DIGILAW 33 (UTT)

BIJENDRA SINGH SAJWAN v. STATE OF U. P.

2010-02-10

TARUN AGARWALA

body2010
JUDGMENT Heard Sri U.K. Uniyal, the learned senior counsel assisted by Sri Sandeep Kothari, the learned counsel for the petitioner and Sri V.B.S. Negi, the learned counsel for the respondent nos. 2, 3 & 4. 2. The petitioner has filed the present writ petition praying for the quashing of the order of termination dated 19th May, 1993 passed by the Principal, Nehru Institute of Mountaineering, Uttarkashi. 3. The facts leading to the filing of the writ petition is, that the petitioner was initially employed in the Indian Army and, after being relieved from the Army, the petitioner was given a fresh employment in the Nehru Institute of Mountainering, Uttarkashi, w.e.f. 23rd July, 1969. It is alleged that an incident took place in the year 1991 and that respondent no. 3, who was the then Principal of the Nehru Institute of Mountaineering, mis-behaved with the petitioner’s daughter, and to that extent, a criminal complaint was lodged against the respondent no. 3 in the court of Chief Judicial Magistrate, Uttarkashi. It transpires that on 26th April, 1992 the petitioner fell ill and was medically advised four weeks’ rest, which was sanctioned on 29.04.1992 by the respondents on the basis of a medical certificate issued by the medical officer. On 09.05.1992 the petitioner was found driving a scooter and, on that basis, the petitioner was suspended and, subsequently chargesheeted. The petitioner challenged the suspension order by means of a writ petition, in which an interim order was granted staying the suspension order of the petitioner. Subsequently, a chargesheet was issued alleging that inspite of being granted medical leave, the petitioner was found driving a scooter and, consequently, produced a false medical certificate and continued to move around in Uttarkashi town for his personal work causing considerable inconvenience to the Institute in its office work and, consequently, the petitioner displayed gross indiscipline involving moral turpitude. The petitioner filed his reply and submitted that on the advice of the doctor, he had applied for medical leave, which was duly sanctioned by the Principal and, that on 09th May, 1992, he was going on a scooter to purchase the medicines and to consult the doctor, when he met with an accident and was admitted in the hospital. The disciplinary authority, found that the reply submitted by the petitioner was not satisfactory and, accordingly instituted an inquiry and appointed an inquiry officer. The disciplinary authority, found that the reply submitted by the petitioner was not satisfactory and, accordingly instituted an inquiry and appointed an inquiry officer. The inquiry officer, after conducting the inquiry, submitted a report and on that basis, the Principal passed the order of termination dated 19.09.1993. The petitioner, being aggrieved by the order of termination, has filed the present writ petition. 4. The learned senior counsel for the petitioner submitted that the charge levelled against the petitioner was patently fictitious and, that the disciplinary authority was biased since the petitioner had filed a criminal complaint against him and, consequently, the disciplinary authority was prejudiced in the matter. The learned senior counsel for the petitioner submitted that the medical certificate was genuine and the finding that the medical certificate was a forged document was against the material evidence on record. The learned senior counsel for the petitioner further submitted that even assuming without admitting that the charges levelled against the petitioner was true and correct, even then, the punishment awarded, namely, termination of service, did not commensurate with the misconduct committed by the petitioner, if any. 5. On the other hand, the learned counsel for the respondents submitted that the findings arrived at by the inquiry officer and the action taken by the disciplinary authority did not require any interference. The findings recorded by the inquiry officer, being findings of fact, cannot be interfered in a writ jurisdiction. It was also contended that the punishment awarded was wholly justified in view of the gross misconduct committed by the petitioner. 6. The only allegation against the petitioner is, that he had produced a false medical certificate since he was found riding a scooter inspite of being advised medical rest by the doctor. The learned senior counsel for the petitioner has invited the attention of the court to Annexure-16 to the writ petition, which is a letter written by the Chief Medical Officer, Uttarkashi to the Principal, Nehru Institute of Mountaineering indicating therein that the medical certificate issued by the Medical Officer was a genuine certificate and which has been issued by the concerned authority. Inspite of this document being on record and being in the knowledge of the disciplinary authority, the disciplinary authority has passed such finding about the genuineness of the medical certificate. Inspite of this document being on record and being in the knowledge of the disciplinary authority, the disciplinary authority has passed such finding about the genuineness of the medical certificate. Therefore, the Court finds that the disciplinary authority has not taken due consideration thereof and has given a finding that the petitioner has produced a false and forged medial certificate. The court is of the opinion that the finding of the inquiry officer as well as of the disciplinary authority was based on surmises and conjectures and was not based on the medical evidence on record. Even otherwise, if the disciplinary authority had doubt on the genuineness of the medical certificate produced by the petitioner, the disciplinary authority had a recourse to take further action by directing the petitioner to appear before the another doctor for a second opinion. In the present set of circumstances, no such action was taken to this effect by the disciplinary authority. The letter of the Chief Medical Officer to the disciplinary authority clearly indicates that the Chief Medical Officer had condemned the charge of issuance of a false medical certificate against the medical officer. 7. Thee is another aspect of the matter. The statement of the petitioner as alleged in his reply that he had gone to buy the medicine and to consult the doctor has not been disbelieved nor the statement has been considered by the inquiry officer. The inquiry officer and the disciplinary authority had only presumed that since he was riding a scooter the medical certificate became false. The stand adopted by the disciplinary authority is patently erroneous in as much as, there is nothing to indicate in the medical certificate that the petitioner was confined to bed and that he was not allowed to move around. The medical certificate only indicates that the petitioner was advised rest. The Court further finds that there is no finding that the petitioner had taken medical leave and was working for profit in his personal capacity in some other forum. The court further finds that the mere fact that the petitioner had driven the scooter on a particular date does not mean that he had violated the terms and conditions of the medical certificate. In any case, no conclusion could be drawn that the medical certificate was a false or a fabricated document. The court further finds that the mere fact that the petitioner had driven the scooter on a particular date does not mean that he had violated the terms and conditions of the medical certificate. In any case, no conclusion could be drawn that the medical certificate was a false or a fabricated document. This court is of the opinion that in the event the petitioner was found to be driving a scooter, the disciplinary authority could have revoked the medical leave and should have directed the petitioner to report for work, but this line of action was not taken, instead, a stern action of dismissal was chosen, which the Court thinks was not only harsh and arbitrary, and, in any case, did not commensurate with the misconduct. 8. The learned senior counsel for the petitioner laid stress on the conduct of the disciplinary authority to indicate that the said authority was biased against the petitioner and that a concerted effort was made by the disciplinary authority to take revenge in view of the fact that the petitioner had lodged a complaint against the said authority. The Court finds force in the submission of the learned senior counsel for the petitioner on the issue of bias of the disciplinary authority against the petitioner. But, the court is not going to dwell on this matter since it finds that the writ petition could be decided on another ground itself, namely that the charge levelled against the petitioner had not been proved and nor could it be proved. 9. The Court finds that the medical certificate produced by the petitioner was genuine, which has been corroborated by the Chief Medical Officer. The Court finds that the reasoning adopted by the inquiry officer as well as by the disciplinary authority that the medical certificate becomes false and a fabricated document merely because the petitioner was found riding scooter while on medical leave was patently erroneous and based on surmises and conjecture and cannot stand the test of scrutiny. The court further finds that, in any case, the award of dismissal did not commensurate with the alleged misconduct. The said punishment, in any case, was too harsh. In the light of the aforesaid, the impugned order cannot be sustained and is hereby quashed. 10. The writ petition is allowed. The petitioner is entitled to reinstatement in service with back wages and with all consequential benefits. The said punishment, in any case, was too harsh. In the light of the aforesaid, the impugned order cannot be sustained and is hereby quashed. 10. The writ petition is allowed. The petitioner is entitled to reinstatement in service with back wages and with all consequential benefits. It is stated at the bar that during the pendency of the writ petition the petitioner has reached the age of superannuation. Consequently, the reinstatement, at this stage, cannot be made and it is directed that respondent no. 2 shall calculate the arrears of salary of the petitioner and post retrial benefit within three months from the date of the certified copy of this order and pay the writ petitioner. In the circumstances of the case, there shall be no order as to cost.