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2012 DIGILAW 13 (HP)

Asha Devi v. Union Of India

2012-01-04

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : Deepak Gupta, V.K. Ahuja, JJ. This appeal is being prosecuted by Smt. Asha Devi, who is the widow of the original writ petitioner Ram Singh. 2. The facts of the case are that Ram Singh joined service as a Constable in the Sashastra Seema Bal (SSB) some time in the year 1982. In January 1995, the petitioner was posted to look after two ailing constables of the Group Centre, Shamshi, who were admitted as indoor patients at Civil Hospital, Shamshi. Admittedly, on the night intervening 16th /17th January, 1995, the petitioner left duty and failed to return. According to the department, he had not taken any permission or leave from the competent authority. Two notices were issued to him on 30th January, 1995 and 1st March, 1995. These notices were sent by registered AD to his home address and one of the notices was duly received on his behalf. Despite this, the petitioner did not join the duty. 3. Thereafter a Court of enquiry was constituted to enquire into the circumstances and the Court of enquiry recommended that disciplinary proceedings be initiated against the writ petitioner. The Articles of Charge against the petitioner were as follows:- "ARTICLES-I That said No. 8267292 Const/GD Ram Singh of C Coy. while functioning as Constable (GD) during the month of January, 1995, committed misconduct and disobedience of order, neglect of duty, remissness in the discharge of duty in his capacity as member of the Force (SSB) under Section 11 (i) of CRPF Act, 1949 in that No. 8267292 Const. GD Ram Singh absented from GC HQ Shamshi w.e.f. 16.1.1995 (AN) and failed to return on duty till date and is continuing absent from duty without leave/permission of competent authority. ARTICLES-II No. 8267292 Const/GD Ram Singh of C Coy. while on temporary duty at GC HQ Shamshi was detailed as attendant at C.H. Kullu with the patients No. 8768314 Ct/GD Som Dutt and No. 8868154 Ct/GD Maghir Dass. Both patients were relieved from C.H. Kullu on 14.1.1995 and 17.1.1995 respectively after proper treatment. As per report of Ct./GD Maghir Dass No. 68154, the attendant No. 8267292 Const./GD Ram Singh was still absent from 17.1.1995 (FN) . Two rejoining notices No. 1354-56 dated 30.1.1995 and No. 2812-14 dated 01.3.1995 were issued to him at his home address through Regd. AD and one Regd. As per report of Ct./GD Maghir Dass No. 68154, the attendant No. 8267292 Const./GD Ram Singh was still absent from 17.1.1995 (FN) . Two rejoining notices No. 1354-56 dated 30.1.1995 and No. 2812-14 dated 01.3.1995 were issued to him at his home address through Regd. AD and one Regd. AD No. 1354- 56 dated 30.1.1995 was duly received by No. 8267292 Const. /GD Ram Singh. But he did not resume his duty nor sent any reply. When the period of absence exceeded 60 days, a Court of Enquiry to enquire into the circumstances under which he absented himself was ordered vide this office order No. PF-67292/GCS/95- 3898-4002, dated 31.3.1995 and he was declared as deserter." 4. The writ petitioner did not participate in the enquiry and thereafter the Inquiry Officer held that the charges against the petitioner stood proved. The Disciplinary Authority issued show cause notice dated 29th August, 1995, to the petitioner, which was duly received by him. In this notice, it was proposed that the penalty of removal from service shall be imposed upon the petitioner. The petitioner did not reply to this notice but only submitted that his mental condition is not satisfactory due to illness and therefore, he would submit the reply at a later stage. Thereafter, the order of removal from service was passed on 16.9.1995. 5. Aggrieved by the said order of removal, the petitioner thereafter filed an appeal before the Divisional Organiser, Directorate General of Security, who vide his order dated 27th February, 1997, set aside the order of removal and further directed that de novo enquiry be conducted. 6. We have gone through the order of the appellate authority and we find that the main reason which weighed with the appellate authority was that the petitioner had not been given a reasonable opportunity of putting forth his case. 7. Thereafter, de novo enquiry was initiated and after considering the representation made by the petitioner, the Disciplinary Authority again directed that the writ petitioner be removed from service and the period from 17th January, 1995 to 28th July, 1997 i.e. the period when he remained absent from duty was ordered to be treated as dies non. 8. Aggrieved by the said order, the petitioner filed an appeal, which was dismissed on 28th May, 1998. 8. Aggrieved by the said order, the petitioner filed an appeal, which was dismissed on 28th May, 1998. The statutory revision filed by the petitioner before the Director General, Ministry of Home Affairs was also rejected on 4th August, 2001. Thereafter, the petitioner filed the writ petition, which was dismissed by a learned Single Judge of this Court on 22nd March, 2007. 9. Shri Onkar Jairath, learned counsel for the appellants has raised the following contentions before us:- (i) That the petitioner was not wilfully absent from service but was absent due to the fact that he was unwell and therefore, the findings of the authorities are totally incorrect; (ii) the next contention raised by Shri Onkar Jairath, Advocate is that once the initial order of removal was set aside, the authorities should have passed an order permitting the writ petitioner to join service, which was not done and therefore, he is entitled to the salary for that period; and (iii) the last contention raised by Shri Onkar Jairath, Advocate is that the penalty imposed upon the petitioner is highly disproportionate to the alleged allegations made against the petitioner. 10. As far as the first contention is concerned, there is no denial of the fact that the petitioner left the ailing constables on the night intervening 16th /17th January, 1995 at Civil Hospital, Shamshi. The explanation of the petitioner is that he was short of money and went to his relatives house to collect money and he fell ill there. It is also contended on behalf of the petitioner that thereafter the petitioner met his Commanding Officer on 18th January, 1995 and informed him that he was unwell and unable to join duty. In support of this contention, reliance is placed on the medical certificate issued by the Medical Officer, Kullu dated 18th January, 1995 advising 15 days absence of duty to the petitioner. The petitioner was an employee of the Sashastra Seema Bal, a disciplined uniformed force. No employee, especially an employee of an uniformed service, can proceed on leave without filing a written application. The illness of the petitioner was not so serious that he could not even file a written application. The first medical certificate Annexure P-8 only shows that the petitioner was suffering from some bronchial infection and cough. He was not advised bed rest. The illness of the petitioner was not so serious that he could not even file a written application. The first medical certificate Annexure P-8 only shows that the petitioner was suffering from some bronchial infection and cough. He was not advised bed rest. If he could visit his office and meet his Commanding Officer, what prevented him from filing an application in writing and placing on record the medical certificate which had been issued on 18th January, 1995 itself? Therefore, the version of the petitioner that he met his Commanding Officer does not appear to be correct. In fact, there is no other contemporaneous evidence on record to support this version of the petitioner. 11. The conduct of the petitioner thereafter has also to be seen. Two notices were issued to the petitioner asking him to join his duty. They were sent to his permanent address by registered post. One at least was received on his behalf. The least which was expected of an employee is to have replied to these notices and informed his seniors the reasons for his inability to join service. The petitioner not only did not care to file reply to these notices, but did not even send a letter/application or telegram to his employer that he was unwell and unable to join service. 12. Shri Onkar Jairath, Advocate has drawn our attention to another medical certificate issued on 20th October, 1995 by the Medical Officer, Sub Divisional Hospital, Sunder nagar, wherein the petitioner has been advised leave in absence of duty from 3.2.1995 to 20.10.1995 on the ground that he is suffering from "Korks Abd". Other than placing on record these two medical certificates, the petitioner has not placed on record either the OPD slips, the prescription of the doctor or any other material to show that he was actually under treatment. When any person is under treatment and goes to a hospital, first of all he is registered and an OPD slip is issued. Thereafter on the said OPD slip the doctor gives his diagnosis and advises the medicines and prescribes the treatment. Thereafter, follow-up treatment is noted down in the same OPD slip or continuation sheets added to the slip. When any person is under treatment and goes to a hospital, first of all he is registered and an OPD slip is issued. Thereafter on the said OPD slip the doctor gives his diagnosis and advises the medicines and prescribes the treatment. Thereafter, follow-up treatment is noted down in the same OPD slip or continuation sheets added to the slip. No such material has been placed on record and therefore, no reliance can be placed on these medical certificates especially the medical certificate dated 20th October, 1995 which has been issued by the Medical Officer, Sub Divisional Hospital, Sundernagar. 13. The petitioner, after the original enquiry had been set aside, had an opportunity to put forth all his documents. No such evidence was brought to the notice of the enquiry committee which would show that the petitioner was actually under treatment at Sub Divisional Hospital, Sundernagar. Even if the petitioner was under treatment, there is no explanation why he could not apply for leave. The charge is that he had abstained from duty and did not even care to apply for leave. It must always be remembered that leave is not a right of an employee. It is a privilege granted to him. When an employee abstains from duty and takes leave he must apply for the leave or must give a reasonable explanation for his non-absence/leave. No such explanation has come forward in the present case. 14. As far as the second contention of Shri Onkar Jairath, Advocate is concerned, we are of the considered view that when the appellate authority passed the order dated 27th February, 1997 setting aside the earlier order of removal dated 16.9.1995 and directed that de novo enquiry be conducted, it was for the petitioner to have presented himself before the Commanding Officer and submitted his joining report. Why should the Commanding Officer issue a letter asking the petitioner to join service, if an order had been passed in favour of the petitioner? Was it not the duty of the petitioner to have joined at the place where he was working at the time of his removal and submit his joining report? He has not cared to join duty, which clearly shows that he was not interested in serving the SSB. 15. Was it not the duty of the petitioner to have joined at the place where he was working at the time of his removal and submit his joining report? He has not cared to join duty, which clearly shows that he was not interested in serving the SSB. 15. Shri Onkar Jairath, Advocate, in support of his contentions has referred to the judgment of the Supreme Court in Jagdamba Prasad Shukla v. State of H.P., (2000) 7 SCC 90 , wherein it has been held that non-payment of subsistence allowance to the delinquent suspended employee amounts to denial of reasonable opportunity vitiating the departmental enquiry. In the present case, the petitioner did not even join the first enquiry and remained absent. He was removed from service. He filed an appeal, which was allowed and a fresh de novo enquiry was ordered, directing that the writ petitioner be given a reasonable opportunity to put forward his case. The petitioner did not care to submit his joining report nor asked for payment of subsistence allowance. Therefore, the facts of the present case are totally different from the facts of the case pending before the Supreme Court. In that case, the case set up was that due to non-payment of subsistence allowance, the petitioner could not travel from Kanpur to Gorakhpur to participate in the departmental enquiry. In the present case, the petitioner has participated in the second departmental enquiry and therefore, no prejudice has been caused to him. 16. As far as the second judgment relied upon by Shri Onkar Jairath, Advocate i.e. Tekraj Vasandi v. Union of India and others 1988 (3) SLR 560 is concerned, we may note that the directions given in para-22 of the judgment of the Apex Court are in the nature of relief granted to the petitioner wherein after the order of the dismissal was set aside by the Supreme Court, it was held that he would be entitled to back wages and not to subsistence allowance. We are of the 11 considered view that this judgment of the Supreme Court is also not applicable to the present case. 17. The last contention of Shri Onkar Jairath, Advocate, is that the penalty is highly disproportionate. We are not at all in agreement with this contention of Shri Onkar Jairath, Advocate. We are of the 11 considered view that this judgment of the Supreme Court is also not applicable to the present case. 17. The last contention of Shri Onkar Jairath, Advocate, is that the penalty is highly disproportionate. We are not at all in agreement with this contention of Shri Onkar Jairath, Advocate. In a uniformed disciplined force, no employee can remain absent from duty without any reasonable ground and then expect that he should be retained in service. 18. All these factors have been considered by the authorities and also by the learned Single Judge. Therefore, we find no merits in this appeal, which is accordingly dismissed. No costs.